Evaluations of European Union Institutions, Doctrinal Assessments & Challenging
Faculty of Law, Pan-European University, Bratislava, Slovak Republic
After comparison of the ‘surrender’ and the ‘extradition’ in the previous chapter, it should be assessed the clear evaluation of the European arrest warrant and the surrender procedure. The chapter deals with their evaluation. It is divided into four sections and is summarised with concluding observations. Section 14.1 is focused on the evaluations by the European Commission—the European Union’s institution which introduced the legislative proposal for the European arrest warrant. Subsequently, Sect. 14.2 is focused on the evaluations by the Council of the European Union, which adopted the Framework Decision 2002/584/JHA on the European arrest warrant. Moreover, on the ground that both European arrest warrant and the surrender procedure are not perfect, special attention is focused on Council’s recommendations. In addition to that, Sect. 14.3 examines the doctrinal assessments—positive as well as doubtful. Finally, Sect. 14.4 challenges the European arrest warrant and the surrender procedure. Its prime objective is, beside positive evaluations, to express that they are not perfect, again.
The adoption in 2002 of the Framework Decision on the European Arrest Warrant – a prime example of mutual recognition in criminal matters – constituted a spectacular development for European Union criminal law […].1 (Valsamis Mitsilegas)
In our opinion, the EAW is not only the most successful EU’s mutual recognition instrument, but it might, in the area of EU Criminal law—or more precisely—in the area of the judicial co-operation in criminal matters, be the most successful mutual recognition instrument ever.
To clarify, for instance, Advocate General Bot argues that the EAW is regarded, rightly, as the instrument of judicial co-operation in criminal matters which produces the best results.2 In addition, the EU’s institutions evaluating the EAW and the surrender procedure consider them, in principle, in a positive view. Furthermore, both the EAW and the surrender procedure meet positive approach as regards doctrinal assessments.
14.1 Evaluations by the European Commission
The European Commission has evaluated the EAW thrice, namely in 2005, in 2007 and in 2011. The evaluation criteria were the general criteria normally used to evaluate the implementation of framework decisions and the specific criteria to the EAW. The European Commission based its reports, principally, on the national provisions giving effect to the EAW, as communicated to it by the Member States and the supplementary information supplied by the Council of the EU.
The European Commission submitted its first report evaluating the application of the Framework Decision on the EAW in 20053 and its revised edition in 2006.4
Under the revised version of the report, in 2004 the EAW gradually replaced extradition between Member States. It has been implemented by all Member States (in 2004 excluding Bulgaria and Romania). However, only half complied with the time limit laid down, namely Belgium, Denmark, Spain, Ireland, Cyprus, Lithuania, Hungary, Poland, Portugal, Slovenia, Finland, Sweden and the United Kingdom. The delay, which lasted up to 16 months in Italy, caused temporary difficulties. Nevertheless, at 22nd April 2005, the date of adoption of the Italian law, all Member States had transposed the Framework Decision on the EAW.5 As observed in Chap. 10—some Member States had to revise their national constitutions in order to do this.
The effectiveness of the EAW was gauged, provisionally, from the 2,603 warrants issued, the 653 persons arrested and the 104 persons surrendered up to September 2004. It should also be noted that refusals to execute a warrant so far account for a modest share of the total warrants issued. The full picture can only be an improvement on these provisional figures, based as they are on returns from only about 20 Member States. In the absence of statistics, it can be mentioned that Italy has, since May 2005, effectively surrendered a number of persons to whom an EAW applied, including in an important case concerning terrorism.6
The surrender of requested persons between Member States has become entirely judicial. This is attested to, for example, by the fact that the large majority of Member States authorises direct contact between judicial authorities, at the different stages of the procedure. However, certain Member States have designated an executive body as the competent judicial authority—Denmark for all aspects and fore some aspects Estonia, Latvia, Lithuania, Finland and Sweden. Guaranteeing greater effectiveness, the Framework Decision on the EAW limits the grounds for refusing the surrender between Member States, ruling out any decision based on political expediency. In general, the framework which it provides has been respected.7
The surrender of nationals, a major innovation of the EAW, has become fact. Most Member States, however, have chosen to apply the condition that, in the case of their nationals, the sentence should be executed on their territory, with a few exceptions, as in case of Ireland, Slovakia and the United Kingdom. In the process, most Member States have opted for equal treatment for their nationals and their residents.8
Unlike the extradition procedure, the execution of the EAW is subject to precise time limits. The Member States have amply fulfilled their obligations in this respect. Most surrenders appear to take place within the time limits laid down in the Framework Decision on the EAW.9
Except Malta and the United Kingdom, all Member States have explicitly adopted the single form of the EAW and provided for several possible means of transmission. A difficulty in this respect is that the Framework Decision on the EAW does not provide for making an Interpol alert equivalent to a request for provisional arrest, unlike an SIS alert. Pending the application of the second SIS, each Member State could remedy this with a national provision.
The European Commission concluded that despite an undeniable initial delay, the EAW is operational in most of the cases provided for. In addition to that, its impact is positive, since the available indicators as regards judicial control, effectiveness and speed are favourable, while fundamental rights are observed.10 However, the first evaluation had been made at an early stage and it remained provisional.
Under the European Commission’s second report evaluating the application of the Framework Decision on the EAW11 of 2007, the EAW is a success. This report shows how its use has grown year by year, in practice making it easy for judges to get persons handed over.
The EAW has been operational throughout all Member States since 1st January 2007 (including Bulgaria and Romania). The balance sheet regarding the surrender system introduced by the Framework Decision on the EAW is largely positive. The total number of requests exchanged between Member States has risen sharply. Therefore the EAW has not only virtually replaced the extradition procedure within the EU, but the use made of it, because of its advantages, is now much more widespread.12
As far as figures are concerned, for the whole of 2005, nearly 6,900 EAWs were issued by the 23 Member States that sent in figures, twice as many as in 2004. In over 1,770 cases, the requested person was traced and arrested. Of those arrested over 1,532 persons were actually surrendered to the issuing Member State (86 %; in comparison—60 % in 2004). Half of those surrendered in 2005 had given their consent to the procedure (in comparison—a third in 2004). And over a fifth of those surrendered in 2005 within the EU were nationals of the Member State that agreed to their surrender.13
With the EAW, surrenders ware effected within much shorter time limits than in the past. On average the time taken to execute requests, which used to be around a year under the old extradition procedure, has been reduced to 43 days, and even 11 days in the frequent cases where the person consents to surrender.14
The EAWs were transmitted mainly by Interpol and/or by the Schengen Information System. In most of the remaining cases they were simply sent direct between the Member States concerned.15
Pursuant to the latest European Commission’s third report evaluating the application of the Framework Decision in the EAW16 of 2011, available statistics compiled for the years between 2005 and 2009 record 54,689 EAWs issued and 11,630 EAWs executed. During that period between 51 and 62 % of requested persons consented to their surrender, on average within 14–17 days. The average surrender time for those who did not consent was 48 days. This contrasts very favourably with the pre-EAW position of a 1-year average for the extradition of requested persons and has undoubtedly reinforced the free movement of persons within the EU by providing a more efficient mechanism to ensure that open borders are not exploited by those seeking to evade justice.17
In details, as far as average time of surrender procedures are concerned, in cases where the person consented to the surrender the average time of surrender was: in 2005 14.7 days, in 2006 14.2 days, in 2007 17.1 days, in 2008 16.5 days and in 2009 16 days. In cases where the person did not consent to the surrender the average time of surrender was: in 2005—47.2 days, in 2006—51 days, in 2007—42.8 days, in 2008—51.7 days and in 2009—48.6 days.18
14.2 Evaluations by the Council of the EU and Its Recommendations
The fourth round of mutual evaluations by the Council of the EU in 2009 addressed the application in practice of the EAW and co-operation between the EU Member States in this regard. In particular, the exercise’s objectives were to evaluate the practical processes operated and encountered by the Member States when acting both as issuing Member State and as executing Member State and to assess relevant training provisions and provision for defence.
The Council of the EU introduced a final report—The practical application of the EAW and corresponding surrender procedures between Member States.19 The report is based on the individual evaluation reports of the EU Member States,20 the report on the first seven evaluation visits and the discussions on those reports in the Multidisciplinary Group on Organised Crime and in the COPEN group of experts on the EAW. The purpose of the final report was not to reproduce the individual recommendations made to the Member States and their content. The general aim of the final report is to identify certain difficulties and to provide the recommendations in order to solve those problems. For this purpose, depending on the case, some of the recommendations were addressed to the Member States.
As far as key findings of the report are concerned, the Council of the EU pointed out that the practitioners who were interviewed in the different Member States had a very positive view of the EAW and its application. A very large majority of the authorities involved in the operation of the EAW are of the view that it has significant advantages compared with the traditional extradition system and emphasise its benefits as a useful tool that speeds up the handling of cases while safeguarding individual rights. National authorities have assumed the innovative nature of the EAW and are aware of the need to introduce a new judicial culture based on mutual trust, as a condition for the EAW system to deploy all its potential. Their willingness to see that the EAW system is effectively enforced is remarkable. In general, the EAW is operating efficiently. The basis for this conclusion is the increasing volume of requests, the percentage of them that result in effective surrender and the fact that the surrender deadlines are generally met.21
The Council of the EU elaborated 21 conclusions based on the national reports. Each conclusion was supplemented by the recommendation. It is beyond the scope of this work to engage in an in-depth analysis of all of them. Nonetheless, worth mentioning are conclusions and recommendations towards22:
the role of the judicial authorities,
the principle of direct contacts,
transmission of the EAW,
grounds for non-execution the EAW,
the rule of speciality, and
Ad 1) One of the main features of the EAW system is that the procedure is governed by the judicial authorities, so that the role of the central and other administrative authorities is limited to providing practical assistance to smooth the process. In some Member States non-judicial central authorities continue to play a role in cardinal aspects of the surrender procedure far beyond the administrative tasks assigned in the Framework Decision on the EAW. This situation seems difficult to reconcile with the letter and the spirit of the Framework Decision on the EAW, irrespective of how understandable it may be in view of the specificities of the national system or associated practical advantages.
As regards the recommendation, the Council called on those Member States that have not done so to consider restricting the mandate of non-judicial authorities, or to put equivalent measures in place so as to ensure compliance with the Framework Decision on the EAW with regard to the powers of judicial authorities.23
Ad 2) Almost all Member States have incorporated specific provisions establishing the principle of direct contacts between the judicial authorities. However, in a significant number of Member States those provisions do not match practice insofar as, despite the arrangements introduced, transmission of EAWs and related additional information is made, for preference, via police channels or central authorities, or through judicial authorities other than those designated to deal with the case. The establishment of contacts through intermediaries does not seem to give rise to major objections on the part of practitioners. This practice may hamper the development of a European judicial culture based on the dialogue between judicial authorities working on the case, and the difficulties that give rise to it could and should be resolved by other means in line with the choice made in the Framework Decision on the EAW to promote direct communication between the issuing and the executing judicial authorities.
The Council urged Member States to analyse their practices and to take measures to promote direct communication between national judicial authorities dealing with EAW cases and their counterparts abroad.24
Ad 3) As far as the transmission of the EAW is concerned, in the majority of the Member States a faxed copy of the EAW is enough for the purposes of deciding on temporary detention and starting the analysis of the case. Within this group of countries, there is a significant number that require the original EAW (or a copy certified by an authorised officer of the issuing Member State as being a true copy) for a decision on surrender. There are also a number of Member States in which EAW proceedings are not initiated unless the original EAW is available. Acceptance of e-mailed EAWs appears to be rather exceptional.
The Council called on Member States that have not yet done so to reconsider the practice of requiring the original EAW and to accept the validity at all the stages of the procedure of EAWs transmitted by any secure means capable of producing written records and allowing their authenticity to be established.25
Ad 4) There are diverging tendencies in the transposition by the EU Member States of the mandatory and optional grounds for non-execution the EAW laid down in the Framework Decision on the EAW. 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.
As regards the recommendation, the Council 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.26
Ad 5) The operation of the rule of specialty rule is problematic in practice. Problems originate mainly from deficiencies in the regular flow of information and the absence of mechanisms that active enable the authorities in criminal proceedings to check the conditions of surrender in good time.
The Council encouraged Member States to analyse their practice with a view to identifying means of resolving problems associated with the practical application of the speciality rule. In addition to that, the co-ordination within the Member States should be improved.27
Ad 6) As far as information deficits are concerned, it could be noted that many of the authorities stressed the lack of appropriate communications with their foreign counterparts throughout the EAW procedure. The level of communication regarding the progress of EAW proceedings is unsatisfactory. The information from the executing authorities concerning delays in the execution process is rarely provided spontaneously.
The Council called on Member States to check their practice when acting as executing Member State and, where necessary, to take measures to ensure that the issuing authority is provided with timely and accurate information on the progress of the EAW procedure, in particular on the final—enforceable—decision, as well as on the period of detention of the requested person, bearing in mind that the length of the EAW procedure should not be extended.28
Besides general recommendations, the Council of the EU introduced also special recommendations for each Member State.29
14.3 Doctrinal Assessments
In the doctrinal assessments the EAW and the surrender procedure have been met, in principle, with a very positive approach and were given very positive evaluations. Some categories of evaluations can be observed in literature, namely
the EAW as an instrument designed for judicial co-operation in criminal matters in the EU,
comparing the EAW and the surrender procedure to extradition, and
the EAW in the context of the mutual recognition of judicial decisions.
Ad 1) The EAW as an instrument designed for judicial co-operation in criminal matters in the EU is considered as a success.
As far as the opinion of Záhora is concerned, he argues that the EAW has emerged as ‘viable institute’.30
Cryer, Friman and Robinson, as regards the EAW and the surrender proceedings argue that the scheme is generally perceived as successful.31