Genesis




(1)
Faculty of Law, Pan-European University, Bratislava, Slovak Republic

 



Abstract

The chapter deals with the genesis of the European arrest warrant. It is divided into seven sections and is summarised with concluding observations. Section 2.1 presents general knowledge on the European integration and its ‘spill over’ into the area of Criminal law. Following general knowledge, Sect. 2.2 specialises on Europeanisation of Criminal law as an area for the development of the European arrest warrant, namely two issues—Third Pillar of the European Union and an Area of freedom, security and justice. Section 2.3 analyses the Corpus Juris project as the first ‘unsuccessful’ concept introducing the European arrest warrant. On the contrary, Sect. 2.4 briefly introduces the mechanism of mutual recognition of judicial decisions as a ‘new wave’ towards the European arrest warrant. While Sect. 2.5 is focused on Tampere European Council conclusions of 1999 and a decision to replace extradition procedure in the European Union, Sect. 2.6 points out at impact of the 9/11 plane attacks in the United States of America on the enactment of the European arrest warrant. Consequently, Sect. 2.7 analyses negotiating and adopting the legislation on the European arrest warrant.




After the attacks on New York and Washington the enactment of the European Arrest Warrant and the surrender procedures between the Member States became a top priority for the EU’s political leaders.1 (Michael Plachta & Wouter van Ballegooij)

As a starting point for a research analysis on the topic of the European arrest warrant (hereinafter ‘EAW’), one may begin with its genesis.

The adoption of the EAW was a political matter, as shown below, in some aspects difficult. In spite of the fact that it is a procedural instrument of the Member States of the European Union (hereinafter ‘EU’), it was introduced by the institutions at the apex of the EU, namely the European Council, the European Commission and the Council of the EU.


2.1 European Integration and Its ‘Spill Over’ into Area of Criminal Law


Before becoming a real political objective, the idea of uniting Europe was just a dream in the minds of philosophers and visionaries. For example, Hugo Grotius, imagined a peaceful ‘United States of Europe’ inspired by humanistic ideals.2 Conceptions of United Europe were known since the Middle Ages, however, successful became document called ‘The Shuman Declaration’3 of 9th May 1950. Robert Schuman, the then French Foreign Minister, proposed the declaration focusing the co-operation into area of coal and steel production to West Germany. As is stated in the declaration, Franco-German production of coal and steel as a whole should be placed under a common High Authority, within the framework of an organisation open to the participation of the other countries of Europe. This proposal was enthusiastically accepted by the then German Chancellor Konrad Adenauer. The French and Germans then invited other Western European countries to join them. Their invitation was taken up by Italy, Belgium, Netherlands and Luxembourg.

Europe needed to recover from the wartime devastation. The Schuman Declaration was the birth of European integration. It made sense that political leaders focused on the iron and steel sector at first. World War II remained fresh in people’s minds. Iron and steel had been used to build weapons. Sharing iron and steel industries would be a good way of discouraging war. Moreover, coal, iron, and steel are also essential to peacetime economies as steel is used in constructing buildings, making transportation networks and vehicles and building big machines and tools used in factories.4

Considering the political situation of destroyed Europe, probably just few people were convicted that this event shall become the milestone for European history. As argue Craig and De Búrca, this important point in the story of modern European integration, however, should be considered in a much longer time-frame.5 This event aimed Europe to peaceful co-existence and co-operation which nowadays is celebrating over half-century anniversary.

Integration requires the creation of a ‘supranational organisation’.6 As a consequence, ‘the Six’—France, West Germany, Italy, Belgium, The Netherlands and Luxembourg—established three European Communities (hereinafter ‘EC’), namely the European Coal and Steel Community 7 in 1951, the European Economic Community 8 in 1957 and the European Atomic Energy Community 9 as well in 1957. Their Member States transferred some policy decisions to the bodies of all of them, the decisions of what were binding on all them. So Member States within supranational organisations transfered some sovereignty to the organisations. Furthermore, in cases of non-compliance with policy decisions or breaches of agreements, the supranational organisation had the power to impose sanctions on member governments.10

The Coal and Steel Community was the first of Western Europe’s major treaties of integration. It was the first significant step along the integration path, establishing a novel structure whose independent institutions had the power to bind its constituent Member States.11 The basic theory behind this development was that war would be more difficult to purpose if European institutions empowered with substantial regulatory authority controlled the coal and steel industries.12 Coal and steel industries were crucial for European economic recovery. They were also vital to national war-making potential. By placing them under an international authority, ‘the Six’ were abridging national sovereignty in the interests of prosperity and security.13 According to the functionalist theory developed by Mitrany, co-operation touching coal, iron and steel fields of the economy spreads also further fields of economy and have reached also political fields.14

EC as subjects of international relations and as well International law, naturally, needed law. Their law was based on the International law mechanism and has been developed and harmonised. As a consequence of integration, EC law has affected all national legal systems in the EC Member States. It is beyond the scope of this work to engage in an in-depth analysis of harmonisation and approximation procedures in the EC Member States, however, one could point out at affected branches of law, in particular Business law, Intellectual property law, Customer protection law, Environmental law and Criminal law.15


2.2 Europeanisation of Criminal Law: Area for the Development of the European Arrest Warrant


The founding treaties establishing the EC did not expressly anticipate the inclusion of criminal law. Similarly, the objective of economic integration while requiring a mechanism of enforcement did not foresee the use of criminal law and the concomitant police involvement as a central part of the structure.16

Before the Treaty on European Union 17 (hereinafter ‘Treaty on EU’), which entered into force in 1993, there was not much co-operation in criminal matters within the EC Member States. The focus was on the creation of the internal market. Thus, although EC law had some implications for national criminal law and despite the fact that some conventions were agreed upon within the European Political Cooperation one can not really say that Criminal law questions were formally on the agenda before the Treaty on EU.18 Prior to 1993, only some international conventions were concluded between Member States. However, this approach proved ineffective.19

On the other hand, establishing the EU and the Third Pillar structure, also known as so-called ‘Temple structure’,20 affected the means for co-operation in the area of Criminal law. There was introduced a new approach to co-operation in criminal matters. For purposes of the EAW two major events should be mentioned—the Third Pillar of the EU and establishing an Area of Freedom, Security and Justice.


2.2.1 Third Pillar of the European Union


In 1993 the legal relations of the EC Member States were put on a new basis by creating the EU. The Treaty on EU legally established the EU and the EC Member States became the EU Member States.

Establishing the EU led to further integration. In addition to economic co-operation represented by the EC, there were as well new areas of co-operation—a common foreign and security policy, and co-operation in the field of justice and home affairs. However, the EU did not replace the EC. It ‘just’ supplemented new forms of co-operation.21 The Treaty on EU introduced a number of amendments of the founding treaties. The major innovation was the Three Pillar structure of the EU, namely the European Community pillar consisting of traditional European community law, the Common Foreign and Security Policy pillar,22 and the most important for our analysis—the Justice and Home Affairs pillar.23 , 24

As far as the Justice and Home Affairs pillar (hereinafter ‘Third Pillar’) is concerned, pursuant to the Treaty on EU, the judicial co-operation in criminal matters was mentioned as one of the areas as matters of common interest.25 For the first time in the European integration, the judicial co-operation had formal intergovernmental26 nature. The Third Pillar did not create new supranational law, but its existence made perfectly clear that judicial co-operation in criminal cases is a matter of common interest of all EU Member States.27 They wished to have some degree of international police and judicial co-operation in criminal matters, but were not ready for the application of the full supranational machinery that operated in the Community pillar. Thus, the Third Pillar gave the Member States an institutionalised forum to discuss these matters, without subjecting themselves to supranational controls.28 However, decision making under the Three Pillar was more intergovernmental and less supranational.29 It should be noted that after the Treaty of Amsterdam30—the first treaty amending the Treaty on EU which came into force in 1999—the Third Pillar was renamed to Police and judicial co-operation in criminal matters.31

Although the EU Member States did not want to break off pieces of criminal law from national sovereignty and transfer them into the Community law, they nevertheless created new legal instruments to enforce European judicial co-operation, among others, the EAW.


2.2.2 Area of Freedom, Security and Justice


As shown, the EU was established in 1993 by the Treaty on the EU. A few years later, the Treaty of Amsterdam, which constituted the first revision of the Treaty on the EU, introduced a new policy field of the EU—an ‘Area of Freedom, Security and Justice’ (hereinafter ‘AFSJ’), a major objective in the field of the Third Pillar.32 Pursuant to the Treaty on EU as amended by the Treaty of Amsterdam33 the EU set itself the objective the establishment of an AFSJ within which European citizens enjoy a high level of safety.34

The AFSJ concept was introduced to reflect the idea that the maintenance of public order, internal peace and security is shared between the Member States and the EU.35 This new integration objective was strengthened by the introduction of a range of new policy objectives and by new and more appropriate legal instruments and improved judicial control. This led to the further expansion of the scope of policy-making concerning Justice and Home Affairs with dozens of new legislative acts adopted, and a considerable number of new legislative initiatives put in place. In the history of the EU integration process, no other area that previously had seen loose intergovernmental co-operation has ever made its way so quickly to the top of the EU’s political and legislative agenda.36 Monar argues that future historians are likely to regard the EU’s creation of the AFSJ as one of the most significant developments in the European integration process to have taken place at the beginning of the twenty-first century.37

The creation of the AFSJ has been a gradual process. It should have been established in 5 years. First of all, in 1998 was introduced the Action plan on how best to implement the provisions of the Treaty of Amsterdam on the AFSJ38 (even before Treaty of Amsterdam came into force). It was sure that the full benefits of any area of freedom will never be enjoyed unless they are exercised in an area where people can feel safe and secure. There was a clear need for improving and speeding up judicial co-operation in criminal matters both among Member States and with third countries.39

Consequently, as Eckes and Konstadinides pointed out, the responsibilities of the EU in protecting its citizens from crime have expanded incrementally. Security-led issues have gained particular relevance following, for example, the 9/11 attacks in the United States of America. These events ‘Europeanised’ internal security issues. This occurred through the adoption of a wide range of legislative instruments related to law enforcement, co-operation on the prevention and combating of crime, and public order management.40 An excellent example of such initiatives is the EAW.


2.3 Corpus Juris: First ‘Unsuccessful’ Concept Introducing the European Arrest Warrant


At the end of the 1980s the outside world became aware for the first time of the huge extent of the financial damage which the EC suffered. It was due to fraud, which was frequently internationally organised, including tax evasion and customs fraud. People became sufficiently aware that this also damaged the EC’s credibility. Protection of the EC’s financial interests gradually gained greater political priority.41 In 1995 it was initiated a research project on identifying the legal framework within which the financial interests of the EC could be best protected. It was concluded that it was necessary to elaborate a criminal code for purposes of the protecting the EC’s financial interests.

As a consequence of the research work, in 1997 was introduced the publication of a Corpus Juris42 project. It was elaborated by experts of the Criminal law under the directions of Professor Mireille Delmas-Marty. The group came up with the project protecting EC’s financial interests as a kind of core of an independent European criminal law and law of criminal procedure.43 Thus, a new European criminal code for the detection, investigation and prosecution of offences affecting the financial interest of the EC was established. It demonstrated that the different traditions of criminal procedure in Europe were close enough for a synthesis to be attempted.44 It called for a genuine harmonisation of criminal law and procedures for dealing with fraud against the financial interests of the EC. The European Parliament suggested that the Corpus Juris could serve as a model for future developments in the area of Criminal law and its enforcement in the EU.

A revised version of the Corpus Juris45 was published in 2000 (hereinafter ‘Corpus Juris 2000’). The Corpus Juris 2000 was radical. It cut through the tangled web of conflicting traditions in criminal justice procedure and set up a new model which embodies the most important principles from both common law and civil law traditions.46 The Corpus Juris 2000 contains substantive47 and procedural provisions.48

The substantive provisions deal with, in particular, the criminal liability, sanctions and the specific offences committed in relation to EC’s financial interests, for example, money laundering and receiving, conspiracy and misappropriation of funds.

As far as the procedural provisions are concerned, a new procedural instrument was introduced—the EAW.49 It might have been valid on the whole territory of the EU. The arrested person could have been transferred onto the territory of the EU Member State where his presence was needed, applying to the preparatory stage as well as the judgment stage.50 However, the application of the EAW was limited in the light of the philosophy of the Corpus Juris—i.e. it could have been applicable only for purposes of EC’s financial interests, not for purposes of criminal proceedings in general.

A question which begs consideration is why the EAW did not succeed. Corpus Juris project was more widely unpopular because of a propaganda campaign against it in certain sections of the British press, including the Daily Mail, the Sun, the Daily Telegraph and Private Eye. In these journals it was claimed that the Corpus Juris had nothing to do with budgetary fraud and was really just a federalist plot, hatched in Brussels, to force the United Kingdom to abandon the common law and to accept, as a system of criminal justice, ‘the Napoleonic system’ which allegedly prevails in continental Europe—a process which would involve the repeal of Magna Charta and the abolition of habeas corpus. It was stated that Corpus Juris project had the official approval of the highest authorities in Brussels, who would rapidly force it upon an unwilling United Kingdom under powers accorded to them by the Treaty on EU.51


2.4 Mutual Recognition of Judicial Decisions in the European Union: A ‘New Wave’ Towards the European Arrest Warrant


Mutual recognition of judicial decisions, that is the process by which a decision or judgment issued by the judicial authority in one EU Member State is recognised and enforced by the judicial authorities of another, was a major change of approach within the EU in order to improve co-operation in criminal matters.

The impetus for greater co-operation in criminal matters was the belief that criminals were benefiting from the free movement of persons at the heart of the internal market. The United Kingdom Presidency of the EU proposed to make the principle of mutual recognition the cornerstone of increased co-operation in criminal justice in Europe. The idea behind the United Kingdom proposal was based on an analogy with the internal market of the EU. Following the Cassis de Dijon 52 case, mutual recognition paved the way for the completion of the market. Murphy argues that if the same principle could be harnessed in relation to criminal justice, then a European criminal law could be built without facing the difficult task of adopting harmonising measures.53 The principle of mutual recognition was seen as an alternative to harmonisation.54 As far as the judicial co-operation is concerned, the parallel with the internal market is apparent. Where goods are legally obtained and placed on the market in one Member State, a second check of whether they are in compliance with the conditions in another Member State is not permissible.55

However, in the area of the Criminal law the mutual recognition has been developed again. The reason is simple—the judicial decisions in criminal matters cannot be considered as ‘products for sale’ in other countries. The European Council held a special meeting on 15th and 16th June 1998 in Cardiff (the United Kingdom). It underlined the importance of effective judicial co-operation in the fight against cross-border crime. It recognised the need to enhance the ability of national legal systems to work closely together and asked the Council of the EU to identify the scope for greater mutual recognition of decisions of each other’s courts.56


2.5 Tampere European Council: Replacement of Extradition Procedure in the European Union


Since the 1950s, the Council of Europe has been concluding multilateral conventions with regard to all forms of international co-operation in criminal matters. Efforts over decades culminated in the completion of a network of treaties on international co-operation in criminal matters.57 In 1957 the Council of Europe adopted the European Convention on Extradition,58 which, apart from numerous bilateral agreements, is considered as the basic multilateral treaty in Europe. In addition, it adopted additional protocols to this Convention.59

Conventions drafted under the aegis of the Council of Europe are open for ratification for its members and for other non-Member States that are invited to do so. However, not all Member States were a party to all the conventions.

The EU adopted instruments that would build upon the work achieved by the Council of Europe. A clear example is the area of extradition. In order to accelerate and simplify the mechanisms of the European Convention on Extradition of 1957, the EU introduced two conventions, namely the Convention on Simplified Extradition Procedure between Member States of the EU 60 of 1995 and the Convention Relating to Extradition between the member States of the EU 61 of 1996. In spite of the fact that these instruments represented real progress at the time of their signature, however, they constitute a heavy and obsolete mechanism in view of what relations between the EU Member States. In addition, they have not been ratified by all Member States. A combination of the slow progress in implementing agreed measures, the continued growth the nature and extent of cross border crime and the expansion of the membership of the EU prompted a fresh examination of the strategy for improving co-operation in criminal matters.62

The European Council held a special meeting on 15th and 16th October 1999 in Tampere (Finland) on the creation of an AFSJ in the EU. It was determined to develop the EU as the AFSJ by making full use of the possibilities offered by the Treaty of Amsterdam. The European Council sent a strong political message to reaffirm the importance of this objective. It agreed on a number of policy orientations and priorities.63 As far as the EAW is concerned, according to Presidency Conclusions:





  • The enjoyment of freedom requires a genuine area of justice, where people can approach courts and authorities in any Member State as easily as in their own. Criminals must find no ways of exploiting differences in the judicial systems of Member States. Judgments and decisions should be respected and enforced throughout the Union, while safeguarding the basic legal certainty of people and economic operators. Better compatibility and more convergence between the legal systems of Member States must be achieved.64


  • Enhanced mutual recognition of judicial decisions and judgments and the necessary approximation of legislation would facilitate co-operation between authorities and the judicial protection of individual rights. The European Council therefore endorses the principle of mutual recognition which, in its view, should become the cornerstone of judicial co-operation in both civil and criminal matters within the Union. The principle should apply both to judgments and to other decisions of judicial authorities.65


  • With respect to criminal matters, the European Council urges Member States to speedily ratify the 1995 and 1996 EU Conventions on extradition. It considers that the formal extradition procedure should be abolished among the Member States as far as persons are concerned who are fleeing from justice after having been finally sentenced, and replaced by a simple transfer of such persons, in compliance with Article 6 of the Treaty on EU. Consideration should also be given to fast track extradition procedures, without prejudice to the principle of fair trial. The European Council invites the Commission to make proposals on this matter in the light of the Schengen Implementing Agreement.66

Two important points can be observed, namely in relation to mutual recognition and to the EAW.

First, the principle of mutual recognition has been recognised as a cornerstone of judicial co-operation in criminal matters since the European Council of Tampere. As pointed out by Apap and Carrera, the Tampere Conclusions are a milestone, in which the EU heads of state and government firmly endorsed the principle that enhanced mutual recognition of judicial decisions and judgments would facilitate co-operation between authorities and the judicial protection of individual rights.67