Bodies and Networks Facilitating and Co-ordinating the Procedure

Eurojust’s mission is to support and strengthen co-ordination and co-operation between national investigating and prosecuting authorities in relation to serious crime affecting two or more EU Member States or requiring a prosecution on common bases.² Pursuant to the Decision 2002/187/JHA setting up Eurojust,³ one of the objectives of Eurojust is to improve co-operation between the competent authorities of the Member States, in particular by facilitating the execution of requests for, and decisions on, judicial co-operation, including regarding instruments giving effect to the principle of mutual recognition.⁴ As pointed out by the Council of the EU, Eurojust can act as facilitator and co-ordinator in EAW cases.⁵

At the beginning of the application of the surrender procedure Eurojust set itself the objective to improve the effective practical operation of the EAW ⁶ and to work with practitioners to improve the implementation and operational effectiveness of EU instruments, among others, such as the EAW.⁷ Having regard the most updated information available at the time of writing, in 2011 263 cases concerning the EAW were registered at Eurojust, thus almost 18 % of all Eurojust cases. Most cases were requests for Eurojust to help in facilitating the execution of EAWs.⁸

Eurojust can be involved in the surrender procedure by four ways, namely in case of:

Ad 1) As shown, if two or more EU Member States have issued EAWs for the same person—i.e. in case of the multiple request for the same person—the decision on which of the EAWs shall be executed shall be taken by the executing judicial authority with due consideration of all the circumstances and especially the relative seriousness and place of the offences, the respective dates of the EAWs and whether the warrant has been issued for the purposes of prosecution or for execution of a custodial sentence or detention order. The executing judicial authority may seek the advice of Eurojust when making the choice.⁹ As indicated, the relative seriousness of the crime is mentioned as a criterion. However, in the situation where the warrants relate to the same criminal offence, little weight should be put on this factor.¹⁰

Da Mota and Manschot doubted. They argued that it would be interesting to see whether the executing judicial authorities would in fact seek Eurojust’s advice, because they are not obliged to do so and there are no sanctions foreseen if they refrain from doing so. The question for them was whether there is an added value in seeking advice or not.¹¹

Already in 2004 there was the first case in which Eurojust has been asked for advice on resolving a conflict of jurisdiction problem. EAWs had been issued by German and Belgian authorities in a fraud case for the same person—a Dutch national who was also known to reside in the Netherlands. The prosecutor in Amsterdam, who is responsible as the centralised authority for all Dutch incoming EAW requests, asked Eurojust for advice. The criminal offences involved the non-payment of goods through a German company. After purchase, the goods were sold immediately, often through linked intermediaries, to buyers in Belgium. The buyers paid cash and were given documents which were probably false. The loss suffered was in millions of Euros. Both Germany and Belgium wanted to prosecute the main suspect. Belgium also asked for the surrender of another Dutch suspect, who operated only in Belgium. The German case was about fraud only. The Belgian case concerned both fraud and the falsification of documents. Both countries had jurisdiction to prosecute the main suspect but only Belgium had jurisdiction to deal with the falsification of documents. Eurojust advised the competent authorities in the Netherlands, first, to transfer the main suspect to Germany on the condition that Germany would take over the Belgian prosecution insofar as it did not create a non bis in idem situation. Further, second, Eurojust advised that the second suspect should be transferred to Belgium. Both the German and the Belgian authorities had indicated that they would agree with that solution. The competent court in Amsterdam based their decision on the advice supplied by Eurojust.¹²

Another example of a case in which Eurojust has been asked for advice on resolving a conflict of jurisdiction problem can be shown of 2005. In May, Latvian authorities sent to the Czech Republic a request to execute an EAW and to surrender a person who had committed an offence before 1st November 2004. The Czech authorities responded that surrender of the person on the basis of the EAW was not possible in this case, because the Czech legislation implementing the Framework Decision on the EAW provides for surrender of persons on the basis of the EAW exclusively for acts committed after 1st November 2004. Therefore, Czech authorities invited Latvian authorities to co-operate on the case on the basis of the European Convention on Extradition and its two additional Protocols. However, pursuant to Latvian law, since the Framework Decision on the EAW was implemented in the Latvian national law, in Latvia, legal grounds no longer existed for co-operation on the basis of the European Convention on Extradition. The Czech and Latvian National Members of Eurojust worked closely, consulting their national authorities and trying to find a possible solution in the case, and, within 2 days, a solution was found. This case demonstrates the benefit of referral to Eurojust for assistance to resolve apparently insoluble judicial problems and to develop constructive co-operation between judicial authorities of the EU Member States.¹³

Under the most updated information available at the time of writing, in 2011 Eurojust was asked to advise in four cases.¹⁴

Ad 2) As regards the time limits, as also shown, as long as the executing judicial authority has not taken a final decision on the EAW, it shall ensure that the material conditions necessary for effective surrender of the person remain fulfilled. Where in exceptional circumstances a Member State cannot observe required time limits, it shall inform Eurojust, giving the reasons for the delay.¹⁵

For example, in 2011 116 breaches of time limits were registered at Eurojust. Ireland forwarded the highest number of registered notifications. Spain, the Czech Republic, Sweden, the Slovak Republic, Bulgaria and Estonia also sent notifications to Eurojust. The request for additional information required to execute an EAW was the main reported reason for time breaches. The need for translation of relevant documents, the volume of requests to particular Member States, and limited resources in executing States also caused delays in execution.¹⁶

Ad 3) In October 2004 Eurojust organised a first strategic meeting in Prague (Czech Republic) on the implementation of the EAW. The main objectives of the meeting were to identify the legal and practical obstacles to the implementation of the Framework Decision on the EAW and to establish the criteria in case of competing EAWs for the same person. The meeting took place in the Czech Republic, in order to raise the awareness of the new instruments of judicial co-operation in one of the Accession States, and included experts in this field from all then 25 EU Member States—practitioners and academics, as well as representatives of the European Judicial Network, the Council Secretariat and the European Commission. The issues were discussed in plenary sessions and in workshops.¹⁷

Further, Eurojust held a meeting for practitioners on the implementation of the EAW in Budapest (Hungary) in May 2005. Taking into account the experience gained from the strategic meeting held in Prague in 2004, Eurojust focussed on the practical problems linked to application of the EAW.¹⁸