Implementation in the Member States of the European Union
(1)
Faculty of Law, Pan-European University, Bratislava, Slovak Republic
Abstract
The chapter deals with the implementation of the Framework Decision 2002/584/JHA on the European arrest warrant and the surrender procedures between Member States in the national legislations of the Member States of the European Union. It is divided into four sections and is summarised with concluding observations. Section 10.1 introduces how the European Union Member States met the deadline for implementation of the Framework Decision. Subsequently, Sect. 10.2 deals with methods of implementation. Section 10.3 examines special issues while implementing the Framework Decision. Finally, Sect. 10.4 briefly evaluates the degree of implementation.
[…] Member States have largely implemented it properly.1 (Council of the European Union)
The legal basis of the EAW at EU level is the Framework Decision on the EAW. In general, framework decisions are binding upon EU Member States as to the result to be achieved, but leave national authorities to choose the form and methods. Since the framework decisions do not entail effect, in order to fulfil their objectives the EU Member States shall implement them into national legislation. The framework decisions can best be compared with the legal instrument of a directive—both instruments are binding upon EU Member States as to the result to be achieved but leave to the national authorities the choice of form and methods.
As a starting point for further analysis, to clarify, it should be noted that the European Commission cannot bring a Member State before the Court of Justice for a failure to comply with its obligations stemming from the framework decisions which would include its correct implementation. The Member States are aware of it. Not surprisingly the implementation of the Framework Decision on the EAW is not perfect, as this chapter examines.
10.1 Deadline for Implementation
First of all, the deadline for implementation of the Framework Decision on the EAW should be examined. The Framework Decision stipulates that the Member States shall take the necessary measures to comply with the provisions of this Framework Decision by 31st December 2003.2 It was the firm intention of the Council of the EU that the EAW would be operative between EU Member States from 1st January 2004.
Only 13 Member States had met the deadline for implementation, namely Belgium, Denmark, Spain, Ireland, Cyprus, Lithuania, Hungary, Poland, Portugal, Slovenia, Finland, Sweden and the United Kingdom.3 Although the delay did result in the full operation of the EAW falling behind schedule, as argues Mackerel, the timescale for the entry into force of the EAW throughout the EU was a great success compared to some previous extradition agreements.4
10.2 Methods of Implementation
As a preliminary remark it must be again emphasised that Article 34(2)(b) of the Treaty on EU as amended both by the Treaty of Amsterdam5 and by the Treaty of Nice6 explicitly excludes any direct effect of framework decisions. Framework decisions are binding upon EU Member States as to the result to be achieved, but leave national authorities to choose the form and methods. In order to fulfil their objectives the EU Member States shall implement them into national legislation.
As far as the Framework Decision on the EAW is concerned, the method of its implementation does not vary considerably. In principle, two methods can be observed:
adoption of an amendment in order to supplement and ‘update’ earlier existing legislation in the area of procedural criminal law, and
adoption of an entirely new legislation.
It is beyond the scope of this work to engage in an in-depth analysis of implementing legislation in all EU Member States. However, some examples should be mentioned.
In Germany, the government and its administration strongly support the principle of mutual recognition and with it the EAW. Therefore the implementing legislation which had been drafted by the Ministry of Justice aimed at transposing the Framework Decision on the EAW as closely as possible into national law.7 However, it became quite a difficult undertaking for German legislator. It has been implemented twice—in 2004 and in 2006. In the German system of law, the national law implementing the EAW—the ‘first’ European Arrest Warrant Act 8 of 2004—amended the national Act on the International Judicial Assistance in Criminal Matters. 9 However, the Federal High Constitutional Court declared the ‘first’ European Arrest Warrant Act as null and void,10 because it violated the German Constitution, i.e. the Basic Law.11 In its opinion it was contrary to the German constitutional guarantee concerning non-extradition of nationals (details see Chap. 12, Sect. 12.2). As a consequence, new lawmaking proceedings were accelerated and in 2006 the ‘second’ European Arrest Warrant Act 12 was adopted. Again, it did not enter into force as a separate law but rather provisions amended the German Act on International Assistance in Criminal Matters. Specific provisions on EAW procedures are to be found in this Act in case of the assistance to the EU Member States.
As part of the EU pre-accession works Poland had to transpose a number of framework decisions, including the Framework Decision on the EAW. It was the first framework decision ever transposed into Polish law. Therefore its implementation was considered as a testing ground for future transposition efforts.13 The provisions transposing the Framework Decision on the EAW were inserted into the Code of Criminal Procedure 14 by the implementing act.15
In the Czech Republic, similarly to Poland, the provisions transposing the Framework Decision on the EAW were inserted into the Code of Criminal Procedure 16 by the amending act.17 Specific provisions on EAW and the surrender procedure are to be found in this Code. However, later a new legislation containing all mutual recognition instruments, including the EAW and repealing the former provisions in the Code of Criminal Procedure, was adopted the Act No. 140/2013 Coll. on the International Judicial Co-operation in Criminal Matters.18
In the Slovak Republic, the Framework Decision on the EAW has been implemented into national the legal order twice—in 2004 and 2010. The first implementation of the Framework Decision provisions was performed by the means of the Act No. 403/2004 Coll. on the European Arrest Warrant. 19 It was adopted as a special law in Slovak national law for purposes of the Framework Decision implementation and introducing a binding legislation for practitioners. Thus, it was not a law amending already existing legislation. However, it was repealed by a new implementing law. The second implementation of the Framework Decision was performed by the means of the ‘second’ Act No. 154/2010 Coll. on the European Arrest Warrant.20 Exactly the same as its forerunner, it was adopted as a special law in Slovak national law for purposes of the Framework Decision.
In Belgium, the Framework Decision on the EAW was transposed into national law by a special law—Act on the European arrest warrant.21 However, the future of that act was endangered. As observed in the third chapter, a Belgian non-profit-making association Advocaten voor de Wereld (eng. Lawyers for the World) brought an action before Belgian Court of Arbitration seeking the annulment, in whole or in part, of this Act transposing the provisions of the Framework Decision into national law. The Court of Arbitration referred for a preliminary ruling to the Court of Justice a question concerning the validity of the Framework Decision as to whether it was compatible with the Treaty on EU for purposes of EAW adoption. In the end, the Belgian Act on the European arrest warrant was not annulled (details see the third chapter).
As regards Cyprus, similarly to the Slovak Republic and Belgium, the Framework Decision on the EAW was transposed into the national legal order by a special law—the Act to Provide for the European Arrest Warrant […],22 which faithfully reproduced the textual content of its European parent act.23
Last, but not least, in the United Kingdom, the implementation of the Framework Decision on the EAW was far from a straightforward task. In the parliamentary debates leading to the adoption of the national legislation, the government stressed the importance of the EAW reflecting mutual recognition in EU criminal law as an alternative to harmonisation. The government also supported the EAW by highlighting its potential contribution to the fight against organised crime post-EU enlargement. However, both at the level of legislative drafting for implementation and at the level of judicial interpretation, a number of sensitive issues had to be addressed. As a result, the Framework Decision was implemented by the means of the Extradition Act 2003. 24 The Extradition Act did not copy the Framework Decision, but implementing the United Kingdom’s obligations was part of its aim. From a legislative drafting point of view, it has been pointed out repeatedly that the Extradition Act 2003 does not follow the same wording and structure of the Framework Decision. This choice may be explained by the effort to ensure continuity with pre-existing extradition law and practice, in particular bearing in mind that the Extradition Act extends beyond the implementation of the EAW to a general reform of the United Kingdom extradition system.25
10.3 Special Issues
The provisions of the Framework Decision on the EAW have not been implemented in a uniform way throughout the EU. As argues Gay, some States have wasted no time in taking liberties and diverging from the text and even from the spirit of the Framework Decision, especially since the European Commission has no means at its disposal if there is default within the context of the Third Pillar.26
This subsection deals with five special issues—in our view the principal—what have been appeared when implementing the Framework Decision on the EAW.
10.3.1 Definition of the Term ‘European Arrest Warrant’
In principle, the definition of the EAW and the obligation to execute it have been accepted and implemented in line with the Framework Decision on the EAW. In addition, some member States have made direct reference to the mutual recognition principle, namely Spain, Latvia, Austria, Portugal, Slovenia and the Slovak Republic.27
On the other hand, some interesting observations should be mentioned as regards the terminology. The Framework Decision on the EAW carries the title ‘… on the European arrest warrant and surrender procedures between the Member States’. The term ‘extradition’ is not used, neither within the title nor anywhere else in its core text in connection to the EAW. Thus, in connecting to the EAW the term ‘surrender’ should apply. However, some Member States have not accepted such a terminology—intentionally or by virtue of misunderstanding.
In Germany there is no terminology in connection to the term ‘surrender’. German scholars Sinn and Wörner ask a basic question as to whether do Germans surrender or extradite by an EAW? German legislator decided to rule EAW proceedings a special case of international extradition proceedings, rather than to formally install a new kind of European surrender. Thus, systematically correct describing the German procedure the EAW complies with an application for European extradition. As argue Sinn and Wörner, this does not mean that one must use the term ‘surrender’. One can even raise arguments to legally justify this new term, saying that the EAW caused so many changes to the basic procedure of extradition that it actually is something new. As this is a very European-friendly interpretation, talk of ‘surrendering suspects’ somehow is just as European-friendly.28
In the United Kingdom, the national legislation—the Extradition Act 2003—is not familiar with the term ‘surrender’. Instead, its wording constantly uses the term ‘extradition’. While the Part 1 of the Extradition Act deals with the ‘extradition to category 1 territories’, the Part 2 deals with the ‘extradition to category 2 territories’. In spite of the fact it is not mentioned in the Extradition Act, ‘category 1 territories’ are all other EU Member States. Thus, the scheme that emerges from the Part 1 corresponds with the requirements of the Framework Decision on the EAW. Part 2 of the Act reconstructs the law on extradition towards other parts of the world. As observed, the Extradition Act 2003 does not follow the same wording and structure of the Framework Decision. This choice may be explained by the effort to ensure continuity with pre-existing extradition law and practice.29
The national law of the Slovak Republic is a prime example of misunderstanding caused by legislator. Slovak national law—the Act on the EAW—has schizophrenic context. It confuses the most principal terms—‘extradition’ (Slovak ‘vydávanie’) and ‘surrender’ (Slovak ‘odovzdávanie’).30 Observing its core text it is not clear that the EAW is based on the surrender procedure, which replaced extradition between EU Member States. It seems to be as a separate instrument of extradition as far as the EU is concerned. The definition of the EAW was implemented by Article 3(d) and by Article 3(c) of the Act on the EAW. Under Article 3(d), the EAW shall mean ‘a decision issued by a judicial authority of a Member State with view to the arrest and extradition of a requested person for this State from another Member State for the purposes of conducting a criminal prosecution or carrying out a custodial sentence’ (emphasis added). Article 3(c) specifies that, for the purposes of the Act on the EAW. The meaning of the term ‘custodial sentence’ shall also include detention order. With regard to the literal meaning of this definition, it seems that the EAW is based on the extradition procedure and is used only if the executing State is an EU Member State. This meaning supports Article 1(1) of the Act on the EAW, which defines its subject matter. Under this Article, the Act on the EAW lays down the procedure of the Slovak authorities relating to the extradition of persons between EU Member States based on the EAW and related proceedings. On the other hand, we can also find provisions that include the term ‘surrender’, for instance Article 3(j), Article 6(1)(a) or Article 8 of the Act on the EAW. Thus, one could clearly state that the Slovak national implementing legislation—the Act on the EAW—has schizophrenic context and confuses the most principal terms—‘extradition’ and ‘surrender’. This has caused a legislative misunderstanding because of the contradictory meaning of the Act on the EAW, even thought its explanatory report declares that the draft law is terminologically based on the former law, but it specifies its basic institutes and procedures.31 Comparing the philosophy of the Framework Decision on the EAW and the context of the Act on the EAW, we cannot be absolutely sure that the innovative idea of the EAW is reflected in the Slovak legislation. Naturally, adopting a new implementing legislation there has been progress. However, there is still much work to do.
10.3.2 Scope of Application
Few problems have arisen in relation to the scope of the EAW. While almost all EU Member States have transposed it correctly, national legislation of some States is not in line with the Framework Decision on the EAW.
In relation to an EAW for the purposes of serving a custodial sentence, both the Netherland’s and Austria’s legislation require not only that the sentence be for at least 4 months but simultaneously that the related offence be punishable by at least 12 months. This is the system that was in place under the old extradition regime. However, under the Framework Decision on the EAW, there is no longer a link between the length of the actual and potential punishment. This means that where a person has already been sentenced and that sentence is 4 months of imprisonment or more, the maximum possible sentence is irrelevant. As a result, the Netherland’s and Austria’s implementations are contrary to the Framework Decision.32
In Italy, aggravating circumstances are excluded when calculating the 12 month threshold. Moreover, where an EAW is issued by Italian authorities for execution, the legislation does not refer to the 4 month threshold referred to in the Framework Decision on the EAW.33
In the most States have been implemented the list of 32 offences in complete conformity with the Framework Decision on the EAW (including the Slovak Republic).
In contrast, in Italy legislation disregards the list of 32 offences and replaces it with its own list of corresponding offences found in national Criminal law. As shown in the first chapter of this work—Genesis—when the EAW was negotiated, the strongest resistance came from Italy. It opposed the compromise reached by 14 other EU Member States (of then 15 Member States). The then Italian Prime Minister Silvio Berlusconi