Execution the European Arrest Warrant

The Framework Decision on the EAW provides mandatory grounds for non-execution the EAW. Its scope is limited to three grounds. The executing judicial authority shall refuse to execute the EAW in the following cases (mandatory non-execution pursuant to the wording ‘shall refuse’)³⁷:

Ad 1) The first mandatory ground for non-execution the EAW is the amnesty. The executing judicial authority shall refuse to execute the EAW if the offence on which the EAW is based is covered by amnesty in the executing Member State, where that State had jurisdiction to prosecute the offence under its own Criminal law.³⁸

Logically, amnesty as mandatory exception is only applicable if the executing State has jurisdiction. Problems may arise however concerning the meaning of amnesty in this context. The word amnesty is generally used in various meanings. It may cover the case where a specific type of offence committed in the past is pardoned systematically, but it may also refer to a ruling by which several offenders are pardoned while others are not, with all sorts of definitions as to what is what. Moreover, the word amnesty is also used to describe rebates for sentences already served.³⁹

Ad 2) Further, the executing judicial authority shall refuse to execute the EAW if the executing judicial authority is informed that the requested person has been finally judged by a Member State in respect of the same acts provided that, where there has been sentence, the sentence has been served or is currently being served or may no longer be executed under the law of the sentencing Member State.⁴⁰ The provision is an expression of the principle of ne bis in idem. It should be emphasised that in the case of Mantello ⁴¹ the Court of Justice ruled that for the purposes of the issue and execution of a EAW, the concept of ‘same acts’ […] constitutes an autonomous concept of EU law (details see Chap. 11, Sect. 11.​2).

Having regard the fact that the principle of ne bis in idem is used as a ground for non-execution of the EAW in four cases (one case as mandatory ground and three cases as optional ground—see below), it is worthy of detailed analysis.

The principle expressed by the Latin maxim ne bis in idem or non bis in idem (or double jeopardy in common law jurisdictions⁴²), which means not the same thing twice, implies that a person cannot be sentenced or prosecuted twice in respect of the same act. This principle features in various different forms in regional and international instruments, offering national, regional, or international protection. It has been established as an individual right in international human rights legal instruments. As pointed out by Bot, when society has exercised its legitimate right to punish the perpetrator of an offence contrary to its rules, it has exhausted its right to prosecute. Therefore it has no further authority to punish a person already convicted in respect of that act. That principle is therefore inseparable from the principle of res judicata. Considered at the level of the individual, the ne bis in idem principle is intended to provide a convicted person with a guarantee that, when has served sentence, has ‘paid his debt’ to society and can therefore regain his place in it without having to fear further prosecution.⁴³

The principle of ne bis in idem is one of the oldest recognised norms in western civilisation. Its origins trace back to Biblical,⁴⁴ Greek⁴⁵ and Roman⁴⁶ sources. Nowadays, it is reflected in the major international documents. The atrocities of the World War II called for the adoption of specific and essentially intangible rules aimed at preventing the repetition of similar events in the future.⁴⁷

In relation to the European dimension, attention should be drawn to the leading international documents containing the provisions on the principle of ne bis in idem, namely:

Pursuant to the Protocol No. 7 to the European Convention for the Protection of Human Rights and Fundamental Freedoms ⁴⁸ (hereinafter ‘Protocol No. 7 to the European Convention’), ‘no one shall be liable to be tried or punished again in criminal proceedings under the jurisdiction of the same State for an offence for which he has already been finally acquitted or convicted in accordance with the law and penal procedure of that State’.⁴⁹ However, this provision shall not prevent the reopening of the case in accordance with the law and penal procedure of the State concerned, if there is evidence of new or newly discovered facts, or if there has been a fundamental defect in the previous proceedings, which could affect the outcome of the case.

The words ‘under the jurisdiction of the same State’ limit the application of the ne bis in idem to the national level. The principle applies only after the person has been finally acquitted or convicted in accordance with the law and penal procedure of the State concerned. This means that there must have been a final decision. A case may, however, be reopened in accordance with the law of the State concerned if there is evidence of new or newly discovered facts, or if it appears that there has been a fundamental defect in the proceedings, which could affect the outcome of the case either in favour of the person or to his detriment. The term ‘new or newly discovered facts’ includes new means of proof relating to previously existing facts. Furthermore, this article does not prevent a reopening of the proceedings in favour of the convicted person and any other changing of the judgment to the benefit of the convicted person. In addition, cited Article, since it only applies to trial and conviction of a person in criminal proceedings, does not prevent from being made subject, for the same act, to action of a different character (for example, disciplinary action in the case of an official) as well as to criminal proceedings.⁵⁰

As far as the EU Charter is concerned, it stipulates that ‘no one shall be liable to be tried or punished again in criminal proceedings for an offence for which he or she has already been finally acquitted or convicted within the EU in accordance with the law’.⁵¹ It is to be presumed that, as a point of departure, the scope and content cited provision on ne bis in idem is identical to the Protocol No. 7 to the European Convention.⁵² However, the EU Charter has additional significance. Whereas other international instruments oblige the national jurisdiction merely to respect the intrastate prohibition of double jeopardy, this provision goes further by extending the prohibition of multiple prosecutions beyond national borders within the EU. Although the wording of the provision only refers to the EU, its purpose aims at three different levels, namely intra-state ne bis in idem on the national level, horizontal transnational ne bis in idem, vertical national-supranational ne bis in idem.⁵³

In case of the Convention implementing the Schengen Agreement ⁵⁴ of 1990 (hereinafter ‘CISA’), one of the central aspects of international co-operation in criminal matters is considered enactment and enforcement of the principle of ne bis in idem.⁵⁵ The introduction of the provisions on ne bis in idem has been an important landmark for the establishment of a multilateral treaty-based international ne bis in idem. As pointed out by Conway, it expressly recognises ne bis in idem at an erga omnes or inter-state level, rather than merely intra-state.⁵⁶

Under the CISA, ‘a person whose trial has been finally disposed of in one Contracting Party may not be prosecuted in another Contracting Party for the same acts provided that, if a penalty has been imposed, it has been enforced, is actually in the process of being enforced or can no longer be enforced under the laws of the sentencing Contracting Party’.⁵⁷ The provision is regarded as the most developed expression of an internationally applicable principle of ne bis in idem in the way it is worded. Van Bockel argues that it was perhaps something of an ‘added bonus’ that came along with the incorporation of the Schengen acquis as a whole.⁵⁸ The wide interpretation of the ne bis in idem principle has led to Member States being required to recognise not merely each others judicial decisions but also each other’s criminal procedure and prosecutorial policy.⁵⁹ As pointed out by Záhora, States did not recognise the foreign judgments in criminal matters adopted by the courts. In case they wanted to execute such a judgment, they firstly had to recognise foreign judgment. After the CISA was adopted, the principle of ne bis in idem has been applicable within the Schengen area.⁶⁰ The application of ne bis in idem therefore necessarily supposes that the EU Member States have mutual trust in their criminal justice systems and that each of them recognises the Criminal law in force in the other Member States even when the outcome would be different if its own national law were applied.⁶¹

To clarify, the incorporation of the ne bis in idem principle in the CISA, and subsequently in EU law, is inextricably linked with rethinking territoriality in the EU. A person who is exercising free movement rights in a borderless area may not be penalised doubly by being subject to multiple prosecutions for the same acts as a result of him or her crossing borders. EU Member States must respect the outcome of proceedings in other Member States in this context in the conditions set out by the CISA. This represents thus another side of mutual recognition in criminal matters, the recognition of decisions finally disposing trials. This form of mutual recognition differs from the EAW and the other measures based on the principle of mutual recognition in criminal matters in the EU, as it does not require the active enforcement of an order in the executing Member State by coercive means, but rather action stopping prosecution. In this manner, it constitutes a safeguard for the individual concerned and may have protective, and not enforcement consequences.⁶²

In the case of Kretzinger ⁶³ the reference for a preliminary ruling before the Court of Justice concerned the interpretation of Article 54 of the CISA, namely whether and to what extent the provisions of the Framework Decision on the EAW have an effect on the interpretation of the notion of ‘enforcement’ within the meaning of Article 54 of the CISA (details see Chap. 11, Sect. 11.​2).

In case of the application of the European Convention on Extradition, the requested State may deny extradition with reference to ne bis in idem, which sometimes also covers a pardon or an amnesty in that State or a third State.⁶⁴

The operation of the principle of ne bis in idem in the extradition context points to the potential for a broader international rule.⁶⁵ It operates in the context of extradition proceedings to prevent an individual being prosecuted for the same offence more than once in different jurisdictions.⁶⁶ Under its literal expression in the Convention, ‘extradition shall not be granted if final judgment has been passed by the competent authorities of the requested Party upon the person claimed in respect of the offence or offences for which extradition is requested. Extradition may be refused if the competent authorities of the requested Party have decided either not to institute or to terminate proceedings in respect of the same offence or offences’.⁶⁷

The first sentence of aforementioned provision, which is mandatory, covers the case of a person on whom final judgment has been passed, i.e. who has been acquitted, pardoned, or convicted. Extradition should therefore be refused because it is no longer possible to re-open the case, the judgment in question having acquired the authority of res judicata. The word ‘final’ indicates that all means of appeal have been exhausted. It was understood that judgment by the court is not to be considered a final judgment, nor is judgment ultra vires. The second sentence, which is permissive, covers the case of a person in regard to whom a decision has been taken precluding proceedings or terminating them, particularly the case in which it has been decided that there are no grounds for prosecution. In these circumstances extradition can be refused, but, if new facts or other matters affecting the verdict come to light, this provision cannot be applied, and the person must be extradited.⁶⁸

Naturally, the European Convention on Extradition is not the only document adopted for purposes of extradition which deals with the principle of ne bis in idem. We can find it, for example, in the Agreement on the simplification and modernisation of methods of transmitting extradition requests of 1989, which was concluded between the 12 Member States of the EC. Further, it is stipulated in the Convention on simplified extradition procedure between the Member States of the EU⁶⁹ of 1995 or in the Convention relating to extradition between the Member States of the EU⁷⁰ of 1996.

Furthermore, besides analysis of the leading international documents containing the provisions on the principle of ne bis in idem, attention should be drawn to practical issues, namely the absence of a definition or at least some precision in the content of ‘ne bis’ and ‘in idem’, and the application of multiple number of legal orders in case of executing the EAW.

If the Framework Decision on the EAW appears to be more precise regarding the principle of ne bis in idem than is the European Convention on Extradition, it still seems to contain a number of potential practical problems. The first concerns the multiple references to the principle of ne bis in idem as a varying reason for refusing to execute the EAW. The meaning of these references is not uniform, and this could cause differences to appear when transposing the Framework Decision on the EAW into national systems. Moreover, the absence of a definition or at least some precision in the content of bis (final judgment?) and idem (the same acts?) presents the danger that national courts would interpret these terms differently, especially in common law countries, on the one hand, and civil law countries on the other.⁷¹

Advocate General Bot argues that the precise meaning of the ne bis in idem principle is hard to define. It may vary very considerably from one EU Member State to another. The differences may relate to both the elements governing application of that principle, namely bis and idem. The concept of bis is used in determining the decisions to which the principle may be applied. The concept of idem relates to the elements which must be regarded as having already formed the subject-matter of a judgment. This may, understood in a manner which is advantageous to the individual, include identity solely of the material acts or, with a stricter meaning, identity of the offences, that is to say those acts together with their legal classification.⁷²

While the application of the ne bis in idem principle may be difficult in domestic settings, problems are likely to multiply in an international context, because States foster different interpretations of the principle.⁷³ In case of the EAW there is possible application at least of three legal orders—the legal order of the State issuing the EAW, the legal order of the State executing the EAW and the EU law. A question which begs consideration is whether a person has been ‘finally’ judged for purposes of the EAW. The Court of Justice argued in the case of Mantello ⁷⁴ that a requested person is considered to have been finally judged in respect of the same acts where further prosecution is definitively barred or where the judicial authorities of a Member State have adopted a decision by which the accused is finally acquitted in respect of the alleged acts. Whether a person has been ‘finally’ judged for the purposes EAW is determined by the law of the Member State in which judgment was delivered. It should be emphasised the Court ruled that for the purposes of the issue and execution of a EAW, the concept of ‘same acts’ […] constitutes an autonomous concept of EU law (details see Chap. 11, Sect. 11.​2).

Ad 3) Last, but not least, pursuant to the Framework Decision on the EAW the executing judicial authority shall refuse to execute the EAW if ‘the person who is the subject of the EAW may not, owing to age, be held criminally responsible for the acts on which the EAW is based under the law of the executing State’.⁷⁵ However, the Framework Decision on the EAW does not specify the lower or upper limits of person’s age. The age of criminal responsibility is anchored in domestic criminal codes of the Member States. This matter is based on their national traditions.

In addition, Apap and Carrera argue that the Framework Decision on the EAW does not include all those cases for which the surrendering State would have responsibilities under the European Convention. In their opinion, the EAW has, among others, dangerously forgotten to include the essential obligation not to surrender an individual in the cases of the prohibition of torture.⁷⁶

Besides the mandatory grounds for non-execution the EAW, the Framework Decision on the EAW introduced also optional grounds. It is clear from the wording of the Framework Decision on the EAW—‘Grounds for optional non-execution of the European arrest warrant’—that it is not the implementation of those grounds by the Member States which is optional but rather the execution of the EAW, which is thus left to the discretion of the national judicial authorities.⁷⁷

The executing judicial authority may refuse to execute the EAW (optional non-execution pursuant to the wording ‘may refuse’) in case of⁷⁸:

Ad 1) The first optional ground for non-execution the EAW is the absence of the dual criminality. The executing judicial authority may refuse to execute the EAW if the act on which the EAW is based does not constitute an offence under the law of the executing Member State.⁷⁹

However, in relation to taxes or duties, customs and exchange, execution of the EAW shall not be refused on the ground that the law of the executing Member State does not impose the same kind of tax or duty or does not contain the same type of rules as regards taxes, duties and customs and exchange regulations as the law of the issuing Member State. The rules concerning tax offences are logical. They exist as well in the extradition procedure.⁸⁰

Ad 2) The executing judicial authority may refuse to execute the EAW where the person who is the subject of the EAW is being prosecuted in the executing Member State for the same act as that on which the EAW is based.⁸¹ The provisions reflect the principle of national sovereignty. It is the ‘second’ ground for non-execution the EAW based on the principle of ne bis in idem.

Ad 3) As the ‘third’ ground for non-execution the EAW based on the principle of ne bis in idem is the situation, where the judicial authorities of the executing Member State have decided, first, either not to prosecute for the offence on which the EAW is based or, second, to halt proceedings, or, third, where a final judgment has been passed upon the requested person in a Member State, in respect of the same acts, which prevents further proceedings.⁸²

Ad 4) The executing judicial authority may refuse to execute the EAW where the criminal prosecution or punishment of the requested person is statute-barred according to the law of the executing Member State and the acts fall within the jurisdiction of that Member State under its own criminal law.⁸³ If the offence is statute-bared under its domestic law, the issuing authority does not seek surrender of a person. Thus, only statute-bars of the executing State are relevant.

The rule origins trace back to extradition. The European Convention on Extradition stipulates that extradition shall not be granted when the person claimed has, according to the law of either the requesting or the requested Party, become immune by reason of lapse of time from prosecution or punishment.⁸⁴

As argues Blekxtoon, some practitioners are of the opinion that the provision does not apply to cases failing within the list of 32 offences. If facts from that list are also punishable under the law of the executing State it is an elementary principle of justice that they cannot lead to surrender to another Member State having more lenient rules on statute-bars. It would mean that the requested person would be advised to stay at home for a certain duration—possibly for life—but that is a normal consequence of extradition practice in general and has always been so. However, this privilege cannot be invoked if the requested person should be arrested in any other State.⁸⁵

Ad 5) As the ‘fourth’ ground for non-execution the EAW based on the principle of ne bis in idem is the situation where the executing judicial authority is informed that the requested person has been finally judged by a third State (a non-EU Member State) in respect of the same acts provided that, where there has been sentence, the sentence has been served or is currently being served or may no longer be executed under the law of the sentencing country.⁸⁶

Ad 6) Further, the executing judicial authority may refuse to execute the EAW if the EAW has been issued for the purposes of execution of a custodial sentence or detention order, where the requested person is staying in, or is a national or a resident of the executing Member State and that State undertakes to execute the sentence or detention order in accordance with its domestic law.⁸⁷ The provisions are the application of the Convention on the Transfer of Sentenced Persons⁸⁸ of 1983, adopted by the Council of Europe.

The Court of Justice held that that ground for optional non-execution has in particular the objective of enabling the executing judicial authority to give particular weight to the possibility of increasing the requested person’s chances of reintegrating into society when the sentence imposed on him expires.⁸⁹ Moreover, Advocate General Mengozzi argues that cited provision of the framework decision is a clear expression of the European legislature’s intention to allow the competent judicial authorities, where appropriate, the possibility of reconciling that principle with another factor which must just as crucially be preserved, such as the success of the sentenced person’s social rehabilitation.⁹⁰

As far as the interpretation of the terms ‘staying’ and ‘resident’ is concerned, in case of Kozłowski the Court of Justice ruled that a requested person is ‘resident’ in the executing Member State when he has established his or her actual place of residence there and he or she is ‘staying’ there when, following a stable period of presence in that State, he or she has acquired connections with that State which are of a similar degree to those resulting from residence; in addition, in order to ascertain whether there are connections between the requested person and the executing Member State which lead to the conclusion that that person is covered by the term ‘staying’, it is for the executing judicial authority to make an overall assessment of various objective factors characterising the situation of that person, including, in particular, the length, nature and conditions of his presence and the family and economic connections which that person has with the executing Member State⁹¹ (details see Chap. 11, Sect. 11.​3).

Ad 7) Last, but not least, the executing judicial authority may refuse to execute the EAW where it relates to offences which⁹²:

In addition to the analysis of the mandatory and optional grounds for non-execution the EAW, it should be noted, that there are diverging tendencies in the transposition by the EU Member States of the mandatory and optional mandatory grounds for non-execution the EAW laid down in the Framework Decision on the EAW.

As pointed out by the European Commission, many Member States have interpreted the provisions on the optional non-execution the EAW as meaning that the State may choose whether a judge is required to refuse surrender where one of the grounds exists or whether the judge has discretion in the matter. As a consequence, many States have made these grounds for refusal mandatory. At the same time, since the provisions are optional some Member States have not transposed it at all. Hence the implementation of the provisions amounts to a patchwork which is contrary to the Framework Decision ⁹³ [on the EAW]. In addition, the European Commission highlighted the ‘principal shortcomings’ of the implementation. There is mentioned, among others, alteration of grounds for non-execution form optional to mandatory.⁹⁴

Furthermore, it could be pointed at the expansion of the grounds for non-execution in a number of Member States. There are situations not provided for in the Framework Decision on the EAW. Some of them rooted in the traditional extradition regime. Moreover, the legislation in some Member States has made the optional grounds for non-execution as mandatory. The Council of the EU called upon Member States to review their legislation in order to ensure that only grounds for non-execution permitted under the Framework Decision on the EAW may be used as a basis for refusal to surrender.⁹⁵

Advocate General Villalón argues that the scant case-law that exists would seem to suggest that the Member States must interpret strictly the optional grounds for non-execution the EAW.⁹⁶ The Court of Justice argues that any national provision which limits the optional grounds for non-execution merely reinforces the system of surrender introduced by the Framework Decision on the EAW to the advantage of an AFSJ.⁹⁷

As far as the accused persons are concerned, the right to be present during hearings of the trial is a fundamental right. It is provided in the United Nations’ International Covenant on Civil and Political Rights.⁹⁸ In addition, it is included in the right to a fair trial provided in the European Convention.⁹⁹