Introduction and Methodology
(1)
Faculty of Law, Pan-European University, Bratislava, Slovak Republic
1.1 Introduction
The European arrest warrant is the first concrete measure implementing the principle of mutual recognition of judicial decisions in European Union Criminal law, which the European Council referred to as the ‘cornerstone’ of judicial co-operation in the European Union. It is a judicial decision issued by a judicial authority of European Union Member State with a view to the arrest and surrender by another Member State of a requested person, for the purposes of conducting a criminal prosecution or executing a custodial sentence or detention order.
After the 9/11 attacks in the United States of America, the enactment of the European arrest warrant became a top priority for the European Union’s political leaders. Nowadays, it is a positive step towards the realisation of an Area of freedom, security and justice, which is considered as the second objective of the European Union. In our opinion, the European arrest warrant is not only the most successful European Union’s mutual recognition instrument, but it might, in the area of European Union Criminal law—or more precisely—in the area of judicial co-operation in criminal matters, be the most successful mutual recognition instrument ever.
The main hypothesis of this monograph to verify is the fact that in spite of the initial success of the European arrest warrant, it is not perfect and therefore it requires improvements.
The monograph aims to provide an assessment of the European arrest warrant as a procedural instrument in the area of judicial co-operation in criminal matters in the European Union. As far as the objectives are concerned, the first objective is the assessment of the historical development of the European arrest warrant, its legal basis at the European Union level and its features. The second objective is the assessment of the European arrest warrant procedure at the European Union level, the European and national case-law and its impact on the European arrest warrant, and the implementation and evaluation of the European arrest warrant. Further, the third objective, as regards the European Union level, is the assessment of the strengthening of procedural safeguards of the requested person.
1.2 Problem Description
As shown in the introduction, the European arrest warrant (hereinafter ‘EAW’) is the first concrete measure implementing the principle of mutual recognition of judicial decisions in European Union Criminal law, which the European Council referred to as the ‘cornerstone’ of judicial co-operation in the European Union (hereinafter ‘EU’). It is a judicial decision issued by a judicial authority of EU Member State with a view to the arrest and surrender by another Member State of a requested person, for the purposes of conducting a criminal prosecution or executing a custodial sentence or detention order. However, it should be not overlooked that in spite of the fact it is a judicial decision, it is not a final court judgment—it is an application which shall by recognised and executed throughout the EU.
The EAW does not apply to petty crime. It is a core development in particular for purposes of the fight against cross-border crime throughout the EU.
To clarify, the EU Member States were aware of unwanted side-effect of the free movement of persons within Europe, which has been the equally free movement of crime and criminals. This produced a growth in certain forms of trans-national crime. As shown, the purpose of the European arrest warrant is the enforced transfer of criminals from one EU Member State to another.
Indeed, the EAW offers innovative features to simplify and speed up extradition procedures and thus prevent suspected criminals from evading justice. In practice, it is expected to enhance the free movement of criminal investigation, prosecutions and sentences across EU borders by replacing the existing instruments on extradition between the EU Member States by surrender procedure. Thus, the surrender procedure replaced extradition as far as the territory of the EU is concerned (however, the material act is the same).
In addition, the European arrest warrant is a positive step towards the realisation of an Area of freedom, security and justice concept, which is considered as the second objective of the EU.
As regards legal branches are concerned, the European arrest warrant is an issue primarily of Criminal law and EU law. It is Criminal procedural law instrument in the area of judicial co-operation in criminal matters, however, it was introduced by EU legislation. Moreover, it can be also an issue of International law.
1.3 A Brief Review of Research Literary Sources
To these days, two flagships on the topic of the European arrest warrant have been published worldwide.
First should be mentioned the first ever published work on the topic of the European arrest warrant—‘Handbook on the European Arrest Warrant’ edited by Rob Blekxtoon and Wouter van Ballegooij (T. M. C. Asser Press, 2005), written with an undeniable ring of scepticism by experts in the field of extradition.
The second work is ‘The European Arrest Warrant in Practice’ edited by Nico Keijzer and Elies Van Sliedregt (T. M. C. Asser Press, 2009), written by leading scholars, EU high-ranking officials and judges. Taking into account initial success of the EAW, this work turned out to be less sceptical.
However, neither of these works represents a harmonious complex of knowledge. Both are edited works, composed of separate chapters elaborated by various authors. Thus, each chapter deals with specific issue, without consistency.
Further, knowledge can be found in the legal doctrine dealing with the EU Criminal law, International Criminal law, judicial co-operation in criminal matters in the EU, etc. By the way of example can be mentioned ‘EU Criminal Law’ by Valsamis Mitsilegas (Hart Publishing, 2009) and ‘Procedures in International Law’ by Gernot Biehler (Springer, 2008). However, such works do not deal primarily with the EAW. They contain just basic knowledge, since they are focused on narrower scope of knowledge.
Furthermore, a large number of papers and articles have been published in journals. There is no reason to list exhaustive list of all of them. However, it should not be overlooked that the topic of the EAW is popular, for example, as regards Common Market Law Review, or European Journal of Crime, Criminal Law and Criminal Justice.
1.4 Objectives
The monograph aims to provide an assessment of the EAW as a procedural instrument in the EU’s area of judicial co-operation in criminal matters focusing on the mutual recognition. In order to achieve this aim, three objectives have been identified:
Objective 1: Assessment of the historical development of the EAW, its legal basis at the EU level and its key features.
Objective 2: Assessment of the EAW procedure at the EU level, the European and national case-law and its impact on the EAW, and the implementation and evaluation of the EAW.
Objective 3: As regards the EU level, assessment of the strengthening of procedural safeguards of the requested person.