Definition and General Presentation

The Framework Decision on the EAW introduces a legal definition of the EAW. Leaving aside any differences between the language versions, it is a judicial decision issued by a Member State [of the EU] with a view to the arrest and surrender by another Member State [of the EU] of a requested person, for the purposes of conducting a criminal prosecution or executing a custodial sentence or detention order.²

The Framework Decision on the EAW does not define the terms included in aforementioned definition. In spite this fact, under our opinion, it is possible to analyse its elements³:

Ad 1) The EAW is a judicial decision. In spite of the fact it is a judicial decision, it is not a final court judgment on guilt and punishment. In the concept of surrender the EAW as the judicial decision is understood as an application. As pointed out by Fenyk and Kloučková, the EAW is specific kind of request for arrest and surrender of a requested person, its basis is executable decision, arrest warrant or another executable decision with the same effect.⁴

Under the wording of the Framework Decision on the EAW, the issuing judicial authority shall be the judicial authority of the issuing Member State which is competent to issue an EAW by virtue of the law of that State.⁵ In practice, the EAW as the application is issued by a national court (or tribunal) or a national prosecutor.

Ad 2) As far as the term Member State is concerned, it is understood as any Member State of the EU, i.e. all 28 current Member States of the EU. Moreover, the surrender procedure will be applicable(?) also in Norway and Island (see Chap. 9).

Ad 3) Meaning of the term arrest is interpreted as to seize and hold under the authority of law. For purpose the EAW it means the act of depriving liberty of a requested person in relation to the surrender this person. It is necessary premise to successful surrender. When the person is arrested, he or she must be informed of the EAW and its contents, the possibility of consenting to surrender to the issuing authority and his right to be assisted by legal counsel and an interpreter.

Ad 4) In the EU Criminal law area, the term surrender is entirely new meaning of the transfer of the requested person. As pointed out by Lagodny, the Framework Decision on the EAW generally avoids the term ‘extradition’. Instead, it uses ‘surrender’.⁶ Both extradition and surrender require the physical transfer of a person from one State to another for the purposes of criminal prosecution. This is relevant from the point of view of the individual. However, in the view of the drafters of the Framework Decision on the EAW, there is a difference between extradition and surrender. The difference is to be found in procedural aspects. It should only be a judicial authority that decides on whether or not to surrender and not—in addition—a political/administrative authority. Therefore, one of the main features of ‘surrender’ is the abolition of the granting procedure. In this respect, one could speak of a new ‘system’.⁷

Already the first recital of the Preamble to the Framework Decision on the EAW points out that the formal extradition procedure should be abolished among the Member States in respect of persons who are fleeing from justice after having been finally sentenced and extradition procedures should be speeded up in respect of persons suspected of having committed an offence.⁸ This indicates that the major and relevant change is of a procedural nature, not a matter of substance or of concept.⁹

As far as a national is concerned, the substitution of ‘surrender’ for ‘extradition’ is aimed at ensuring that the prohibition (constitutional or statutory) against extraditing a national does not apply.¹⁰

Changes in procedural values are reflected in the language of the EAW. Gone are the terms ‘requesting’ and ‘requested’ States of the European Convention on Extradition. The terms now reflect the lack of discretion built into the new EAW scheme where Member States are the ‘issuing’ and ‘executing’ authorities. Likewise, fugitives are no longer ‘extradited’ but under the new scheme ‘surrendered’.¹¹

It should be noted that even the International Criminal Court similarly uses the term ‘surrender’ and distinguishes it from the term ‘extradition’. As its Statute¹² reads, ‘surrender’ means the delivering up of a person by a State to the Court. ‘Extradition’ means the delivering up of a person by one State to another as provided by treaty, convention or national legislation.¹³

Ad 5) The term requested person is key term of the definition of the EAW. Pursuant to the explanatory memorandum to the Proposal for the Framework Decision on the EAW, the requested person shall mean a person which has been convicted of an offence or because he is being prosecuted.¹⁴

The Framework Decision on the EAW only refers to the ‘requested person’ without distinguishing his or her nationality. It follows that for purposes of the EAW the nationality of a requested person is not important.

There is another issue not solved explicitly in the Framework Decision on the EAW—the age of a requested person. Taking into account the grounds for non execution of the EAW, the execution of the EAW shall be refused if the person who is the subject of the EAW may not, owing to his age, be held criminally responsible for the acts on which the arrest warrant is based under the law of the executing State.¹⁵ Since the criminal responsibility in the EU Member States is not harmonised, the age of an individual necessary for the criminal responsibility is therefore the domain of Member States.

Ad 6) In general terms, criminal prosecution is understood as conduction of criminal proceedings against a violator of law (or against suspect) in criminal cases.

Neither the term criminal prosecution and nor the term criminal proceedings is not defined at the EU level. However, in the area of on the standing of victims in criminal proceedings the Framework Decision 2001/220/JHA on the standing of victims in criminal proceedings¹⁶ defines the term criminal proceedings. It stipulates that it shall be understood in accordance with the national law applicable.¹⁷

Ad 7) In general terms custodial sentence is understood as a judicial sanction involving deprivation of liberty for a period of time that a person must stay in prison.

The Framework Decision on the EAW does not include definition of this term. Pursuant to the Framework Decision 2008/909/JHA on the application of the principle of mutual recognition to judgments in criminal matters imposing custodial sentences or measures involving deprivation of liberty for the purpose of their enforcement in the EU,¹⁸ the term custodial sentence can be interpreted as sentence involving deprivation of liberty imposed for a limited or unlimited period of time on account of a criminal offence on the basis of criminal proceedings.¹⁹

Ad 8) The term detention order, as well as custodial sentence, in general terms is understood as a judicial sanction. As well as in case of the term custodial sentence, the Framework Decision on the EAW does not include definition of this term. For purposes of the EAW its definition is therefore taken from the European Convention on Extradition. It stipulates that the expression detention order means any order involving deprivation of liberty which has been made by a criminal court in addition to or instead of a prison sentence.²⁰

In the words of the Constitutional Court of the Czech Republic, the EAW does not apply to petty crime.²¹ The EAW is a core development in particular in the fight against cross-border crime throughout the EU. Indeed, it represents a cornerstone for the establishment of a single EU legal and judicial area of extradition. It offers innovative features to simplify and speed up procedures and thus prevent suspected criminals from evading justice.²² In practice, as pointed out by Bureš, the EAW 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 Member States.²³ Zurek argues that its general goal was to accelerate surrendering procedures of criminals.²⁴

The mechanism of the EAW covers the features as follows²⁵:

Ad 1) The purpose of the EAW is the enforced transfer of a person from one Member State to another Member State. The surrender procedure replaced the traditional extradition procedure based on extradition law.

Member States were required to introduce national legislation to bring the EAW into force by 1st January 2004 (the Framework Decision on the EAW came into force on 7th July 2002 and the deadline to introduce legislation to bring the EAW into force was 31st December 2003). For purposes of surrender requested persons, from 1st January 2004 all EU Member States (should) apply national implemented legislation. However, in those days not all current Member States were EU Member States. Some states became Member States of the EU later—in 2004 (for instance the Slovak Republic) and in 2007.

Ad 2) The surrender procedure is a horizontal system replacing the extradition system in all respects and not limited to certain offences, unlike the Treaty of extradition between Italy and Spain²⁶ signed in 2000, which is often considered as the historical antecedent of the EAW (a fundamental difference between the EAW and that treaty is their scope of application—the EAW is applicable in all EU Member States, while the treaty was applicable just in Italy and Spain).

Ad 3) The mechanism of the EAW is based on the principle of mutual recognition of judicial decisions. When a judicial authority of a Member State requests the surrender of a person its decision—the EAW—must be recognised and executed. Refusal to execute an EAW must be confined to a limited number of grounds for non-execution. The EAW allows a person to be arrested and surrendered if in one of Member States he or she has been convicted and sentenced or remanded in custody. Given that the mechanism is particularly binding for the person concerned, it is felt important to allow its use only in cases that are serious enough to justify it.

Ad 4) The procedure for executing the EAW is primarily judicial. In the previous extradition system the provisional arrest warrant and the extradition request were two separate phases of the procedure.

Using surrender procedure it is no longer necessary to distinguish the two phases. The political phase inherent in the extradition procedure is abolished. Accordingly, the administrative redress phase following the political decision is also abolished. The removal of these two procedural levels improves the effectiveness and speed of the mechanism.

This acceleration of procedure has been achieved by requiring only one judicial decision for both arrest and surrender—i.e. the EAW issued by one judicial authority. As a result of this innovation which excludes any political involvement of the ministers of justice and/or foreign affairs, it is possible to argue that the entire EAW procedure is ‘judicialised’.²⁷

Ad 5) The EAW takes account of the principle of citizenship of the EU.²⁸ The exception made for the nationals should no longer apply.

On the one hand, as far as extradition is concerned, many States do not allow the extradition of nationals to another state, but this is usually in circumstances where the State concerned has wide powers to prosecute nationals for offences committed abroad.²⁹

On the other hand, as far as surrender procedure is concerned, the Framework Decision on the EAW relies upon EU citizenship to explain that nationals of Member States are no longer protected against extradition in another Member State if the EAW is issued. At least in some EU Member States, the right not to be extradited to a foreign jurisdiction has long been considered an important element of nationality.³⁰ The Framework Decision on the EAW only refers to the ‘requested person’ without distinguishing his or her nationality.³¹ The primary criterion is not nationality but the place of the person’s main residence, in particular with regard to the execution of sentences.

The rule is made for facilitating the execution of the sentence passed in the country of arrest when it is there that the person is the most likely to achieve integration, and moreover, when an EAW is executed, for making it possible to make it conditional on the guarantee of the person’s subsequent return for the execution of the sentence passed by the foreign authority. As pointed out by the Council of the EU, the Framework Decision on the EAW reflects a philosophy of integration in a common judicial area and involves a new pattern of co-operation based upon mutual trust between Member States.³²

Prior to the EAW, 14 of the then 25 EU Member States’ constitutions contained provisions prohibiting or at least limiting the extradition of nationals.³³

Nowadays, in the ‘EAW era’ the surrender of nationals is a general rule as regards the EU. Deen-Racsmány and Blekxtoon