Principles of Surrender Procedure
Faculty of Law, Pan-European University, Bratislava, Slovak Republic
The chapter deals with the principles of the surrender procedure. It is divided into seven sections and is summarised with concluding observations. First, Sect. 5.1 analyses a major principle of the surrender procedure—the mutual recognition of judicial decisions in criminal matters. As the precondition for mutual recognition, Sect. 5.2 introduces mutual trust between European Union Member States. Section 5.3 deals with direct connection between judicial authorities. Section 5.4 introduces another major principle of surrender procedure—the partial removal of double criminality requirement. While Sect. 5.5 deals with the removal of the rule of reciprocity, Sect. 5.6 deals with the rule of speciality. Last, but not least, Sect. 5.7 deals with the execution the European arrest warrant in line with the Framework Decision 2002/584/JHA on the European arrest warrant and the surrender procedures between Member States.
… judicial co-operation in criminal matters in the Union shall be based on the principle of mutual recognition of judgments and judicial decisions….1 (Treaty on the functioning of the European Union)
Almost all legal institutes, substantive or procedural, are based on principles. The surrender procedure is not exception.
The basic principles of surrender procedure are not explicitly mentioned on a list neither in the core text of the Framework Decision on the EAW nor in its Preamble. In spite of this fact the list of the principles of surrender procedure can be known regarding the philosophy and the text of the Framework Decision on the EAW. Under our opinion, they are as follows2:
mutual recognition of judicial decisions in criminal matters,
mutual trust between EU Member States,
direct connection between judicial authorities,
softened double criminality requirement,
removal of the rule of reciprocity
the rule of speciality, and
execution the EAW in line with the Framework Decision on the EAW.
5.1 Mutual Recognition of Judicial Decisions in Criminal Matters
The mutual recognition of judicial decisions is a major principle of the surrender procedure.3 This section is focused on the principle of mutual recognition and is divided into three subsections. The first introduces the obligation to execute the EAW. The second subsection analyses the mutual recognition in the area of Criminal law. Lastly, the third subsection introduces its central aim.
5.1.1 Obligation to Execute the European Arrest Warrant
Mutual recognition of judicial decisions has dominated the development of EU Criminal law. The Treaty on the functioning of the EU4 stipulates that judicial co-operation in criminal matters in the Union shall be based on the principle of mutual recognition of judgments and judicial decisions and shall include the approximation of the laws and regulations of the Member States.5 Thus, besides approximation of the laws and regulations, the mutual recognition is a basic principle of co-operation in criminal matters in the EU. The European Council referred it as the ‘cornerstone’6 of judicial co-operation in the EU. However, mutual recognition has not been introduced as an obligation with direct effect in EU Member States. It is understood as a general objective.
As far as the EAW is concerned, it is the first concrete measure in the field of Criminal law implementing the principle of mutual recognition. Pursuant to the Framework Decision on the EAW, the EU Member States shall execute any EAW on the basis of the principle of mutual recognition […].7 When a judicial authority of a Member State requests the surrender of a person, its decision must be recognised and executed throughout the entire EU.8 Tomuschat considers the duty of States to execute a foreign sovereign act, i.e., an arrest warrant, on the basis of the principle of mutual recognition as the most prominent characteristic of the EAW.9
In the opinion of the Court of Justice the principle of mutual recognition, which underpins the Framework Decision on the EAW, means that the Member States are in principle obliged to act upon an EAW.10 In addition, in the opinion of Advocate General Sharpston that must plainly be correct, since the objectives underlying the Framework Decision would risk being seriously undermined.11
However, as argue the Court of Justice12 and Advocates General,13 while the system established by Framework Decision on the EAW is based on the principle of mutual recognition, that recognition does not mean that there is an absolute obligation to execute the EAW that has been issued. The Framework Decision includes grounds for non-execution the EAW (detail see Chap. 7, Sect. 7.5).
5.1.2 Mutual Recognition and the Area of Criminal Law
Mutual recognition is a key concept for the European judicial area.14 As pointed out by Calderoni, it remained quite theoretical and its actual realisation proved much more difficult.15 In spite this fact it has been developed from the future vision to basic principle of co-operation in criminal matters in the EU.
As the first attempt in order to introduce the mutual recognition in the area of Criminal law at the European level can be considered international conventions adopted by the Council of Europe adopted in 1960s and 1970s. By the way of example one could point at the European Convention on the Supervision of Conditionally Sentenced or Conditionally Released Offenders,16 the European Convention on the Punishment of Road Traffic Offences,17 the European Convention on the International Validity of Criminal Judgments,18 or the Convention on the Transfer of Sentenced Persons.19 The disadvantage of these conventions was their lack of ratification in States, or in the worst scenario—no ratification. The reason was usually a lack of mutual trust. The consequence was that attempts to introduce mutual recognition in the area of Criminal law did not meet the expected effect. Even if there was a ratification and application of some conventions, it occurred at a regional level, not at the level of Europe.
In the EU the concept of the mutual recognition worked well in the EC framework of an internal market, transporting goods, persons, services and capital across borders. The reasoning must therefore have been that it could solve the problems of criminal law enforcement across borders in the AFSJ, as well.20 Following the Cassis de Dijon 21 case, mutual recognition paved the way for the completion of the market.
As shown in the second chapter, 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 its proposal was based on an analogy with the internal market of the EU. Following the Cassis de Dijon 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.22
Hamuľák considers the ‘transplantation of mutual recognition’ into the area of international co-operation in criminal matters as rational and ambitious approach.23 On the contrary, Peers argued that at first sight, the extension of this principle from its well-established application in the internal market […] might appear unexceptional. However, on closer examination, those analogies are deeply flawed. If anything, the application of the mutual recognition principle in these other areas of EU activity supports a critique of the development of mutual recognition in criminal matters, because the Council of the EU has made the error of assuming that the underlying law need not be comparable.24
The principle of mutual recognition was seen as an alternative to harmonisation.25 In the field of Criminal law currently there is no legislative definition neither of the principle of mutual recognition nor of the concept of harmonisation.26 However, as Kaczorowska argues, the difference between mutual recognition and harmonisation is27:
mutual recognition is a regulatory technique aimed at achieving an objective sought at Community level without the need to harmonise EU Member States’ legislation and thus national law and its peculiarities are maintained; it entails that a Member State will recognise a judgment, or a diploma of higher education delivered by the relevant authorities of another Member State, in accordance with the laws and regulations of that Member State, or accept goods manufactured according to laws and standards applicable in a Member State where the product was manufactured; this is normally subject to some safeguards;
harmonisation occurs when the same laws are adopted in all EU Member States; EC harmonising measures are regulations, directives and decisions; With regard to a regulation, it becomes part of national law at the date specified in that regulation; Consequently pre-existing national legislation which is incompatible with the regulation must be repealed; as to a directive, a Member State is required to achieve the objective it seeks to achieve within the time limit specified in the directive; if this objective has already been achieved, there is no need to legislate.
As argues Herczeg, within the AFSJ the mutual recognition tends to replace the traditional co-operation based on the mutual assistance in criminal matters.28 In accordance with the Tampere conclusions of 1999 (details see Chap. 2, Sect. 2.5), in 2000 the Council adopted the Mutual Recognition Programme.29 It called for an assessment of the need for modern mechanisms for the mutual recognition of final sentences involving deprivation of liberty and for extended application of the principle of the transfer of sentenced persons to cover persons resident in a Member State. As is pointed out in this programme, mutual recognition is designed to strengthen co-operation between Member States.30
5.1.3 Central Aim
The central aim of this principle is the quasi-automatic recognition and execution of judicial decisions in criminal matters from Member State ‘A’ to other Member States of the EU, with minimal formalities and limited grounds for refusal. The political appeal of mutual recognition for the EU Member States lies in the fact that, instead of embarking in a very visible attempt to harmonise their criminal laws under the banner of the EU, they can promote judicial co-operation by not having to change in principle their criminal laws—they ‘only’ agree to accept judicial decisions emanating from other Member States.31
This mechanism is widely understood as being based on the thought that while another Member State may not deal with a certain matter in the same or even a similar way as one’s own State, the results will be such that they are accepted as equivalent to decisions by one’s own State. Based on this idea of equivalence and the trust it is based on, the results the other Member State has reached are allowed to take effect in one’s own sphere of legal influence. A decision taken by an authority in one Member State could be accepted as such in another Member State, even though a comparable authority may not even exist in that state, or could not take such decisions, or would have taken an entirely different decision in a comparable case.
Mutual recognition is just a method used for exchanging items (judicial decisions, evidence, etc.). As a method it consists in asserting the formal lawfulness of the item at the origin and consequently in permitting it to move freely from one country to another in a certain region, avoiding national authorities from raising barriers due to its ‘foreignity’. In other words, mutual recognition fights against the ‘foreignity argument’, i.e. it avoids an object to be rejected in another country simply because of its alien origin.32
In real terms the mutual recognition of judicial decisions comprises the establishment of the free circulation of judicial decisions that have effect across the entire EU. It is therefore founded on the idea of equivalence between the decision of the issuing State and those of the executing State and reciprocal confidence between Member States in the quality of their respective judicial procedures, a guarantee of judicial security.33 Recognising a foreign decision in criminal matters could be understood as giving it effect outside of the state in which it has been rendered, be it by according it the legal effects foreseen for it by the foreign Criminal law, or be it by taking it into account in order to make it have the effects foreseen by the Criminal law of the recognising Member State.34
It has been pointed out that EU leaders should always keep in mind that the principle of mutual recognition of judicial decisions is envisaged not only to strengthen co-operation in the fight against the impunity of those labelled as criminals, but also to enhance the protection of individual rights in judicial proceedings. Ensuring this balance is crucial for a common sense of justice.35
In addition, as Mitsilegas pointed out, applying the mutual recognition has been the motor of European integration in criminal matters in the recent past.36 However, the principle of mutual recognition in the context of co-operation in criminal matters is much younger and less consolidated than it is in the internal market.37
After the Framework Decision on the EAW another instruments based on the mutual recognition have been introduced and adopted at the level of EU. As observed in the second chapter, the case of Advocaten voor de Wereld 38 was the judgment of the Court of Justice, in the words of Geyer, giving the green light to this flagship instrument of EU judicial co-operation in criminal matters. He argues that the Framework Decision on the EAW has not only been the first instrument to implement this principle, but also served as a blueprint for other measures thus far adopted.39
Thus, besides the Framework Decision on the EAW, the principle of mutual recognition of judicial decisions in criminal matters in the EU has been implemented through:
the Framework Decision 2003/577/JHA on orders freezing property or evidence,40
the Framework Decision 2005/214/JHA on the financial penalties,41
the Framework Decision 2006/783/JHA on the confiscation orders,42
the Framework Decision 2008/909/JHA on the judgments in criminal matters imposing custodial sentences or measures involving deprivation of liberty,43
the Framework Decision 2008/947/JHA on the supervision of probation measures and alternative sanctions,44
the Framework Decision 2008/978/JHA on the European evidence warrant,45
the Framework Decision 2009/829/JHA on the supervision measures as an alternative to provisional detention,46 and
the Directive 2011/99/EU on the European protection order.47
5.2 Mutual Trust Between Member States
International co-operation in criminal matters requires a level of trust in another state’s criminal justice system. However, no rule of international law obliges States to trust another States blindly and to co-operate unconditionally. In the EU, mutual trust—or more precisely ‘a high level of confidence’—has been a key notion underlying the system of co-operation in criminal matters.48
To clarify, the mechanism of mutual recognition rests on a high level of mutual trust.49 It means that the executing State can renounce to exert control upon the grounds that motivate the request for evidence of the issuing State, because the executing State can trust that the requesting authorities have already checked the legality, necessity and proportionality of the measure requested. If there is trust in another legal system and in their judges, there is in principle no problem in executing a foreign request in the same way as if it were a national decision or request.
The Framework Decision on the EAW does not explicitly mention this principle in its core text. However, pursuant to its Preamble the mechanism of the EAW is based on a high level of confidence between Member States.50 It seeks to facilitate and accelerate judicial co-operation with a view to contributing to the objective set for the EU to become the AFSJ by basing itself on the high degree of confidence which should exist between the EU Member States. That confidence has also been invoked by Advocates General51 and by the Court of Justice.52 For example, the Court of Justice in the case of Jeremy F 53 argued that the principle of mutual recognition on which the EAW system is based is itself founded on the mutual confidence between the Member States that their national legal systems are capable of providing equivalent and effective protection of the fundamental rights recognised at EU level […], so that it is therefore within the legal system of the issuing Member State that persons who are the subject of an EAW can avail themselves of any remedies which allow the lawfulness of the criminal proceedings […].54
Mutual recognition implies that judiciaries trust each other’s standards of fairness and justice and therefore, mutual confidence depends in particular on the strict upholding by each national judicial system of high standards concerning the protection of individual rights.55 The mutual trust has been an important factor in the developments in the field of International Criminal law within the Europe. International co-operation cannot be imagined without a minimum amount of trust in the rule of law in a foreign State. Therefore one of the basic principles of International law is the presumption of trust in each other’s legal systems, but the mutual trust should be based on mutual knowledge and not simply on blind faith and good intentions.
As pointed out by Gless, mutual trust as a prerequisite is not mentioned in the Tampere Conclusions of 1999. Perhaps the European Council thought it natural, that the Member States trusted each others criminal justice system, at that time.56 However, in 2005 the EU has emphasised the importance of mutual trust in The Hague Programme.57 Having regard to its provisions, judicial co-operation both in criminal and civil matters could be further enhanced by strengthening mutual trust and by progressive development of a European judicial culture based on diversity of the legal systems of the Member States and unity through European law. In an enlarged EU, mutual confidence shall be based on the certainty that all European citizens have access to a judicial system meeting high standards of quality. In order to facilitate full implementation of the principle of mutual recognition, a system providing for objective and impartial evaluation of the implementation of EU policies in the field of justice, while fully respecting the independence of the judiciary and consistent with all the existing European mechanisms, must be established.58
In the opinion of the EU, implementation of the principle of mutual recognition of decisions in criminal matters presupposes that Member States have trust in each others’ criminal justice systems. That trust is grounded, in particular, on their shared commitment to the principles of freedom, democracy and respect for human rights, fundamental freedoms and the rule of law.59
In addition, the Court of Justice in joined cases of Gözütok & Brügge argued that the 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.60 In that case, advocate general Colomer argued that the objective stated in the Treaty on EU of establishing an AFSJ requires that the effectiveness of foreign decisions is guaranteed as between the Member States. In order to fulfil this purpose, the Treaty on EU provides that common action in criminal matters includes facilitating and accelerating co-operation between competent ministries and judicial or equivalent authorities of the Member States in relation to proceedings and the enforcement of decisions. This shared goal cannot be achieved without the mutual trust of the Member States in their criminal justice systems and without the mutual recognition of their respective judgments, adopted in a true common market of fundamental rights.61
In the opinion of Sievers trust is the precondition of the mutual recognition. Besides mutual trust between Member States the other preconditions need to be met, namely equivalence, compatibility and institutional support structures62:
Equivalence: The EU Member States not only have to trust each other, in addition they need to accept each others legal systems as equally legitimate. Legislators and national judges need to acknowledge that a common goal such as efficient criminal prosecution and fundamental rights protection may be attained in an equal measure by the different policies of the foreign state. This requires legislators and judges to accept that different policies are not necessarily inferior.
Compatibility: The legal system of one EU Member State needs to be compatible with the formal rules and procedures of other Member States. This might cause problems between very different systems, for example, between common law and civil law countries. One problem in this respect might be the different competences assigned to police and public prosecutor, or the different kinds of evidence accepted in different phases of a court proceeding.
Institutional support structure: Given the heterogeneity national authorities face, there need to be institutions that address problems which arise if the three preconditions are not yet fully met. These institutions foster the necessary trust; collect and provide information on foreign legal systems, help solve conflicts of jurisdiction and deal with problems arising from incompatibilities between justice systems. Institutional support structures thereby mitigate the transactions costs arising from putting a mutual recognition system into work. In judicial co-operation, it seems unrealistic to expect individual judges to be familiar with the procedural requirements of large numbers of different jurisdictions, let alone to co-ordinate complex cases involving a number of different Member States. The European Judicial Network and even more so Eurojust can be regarded as institutional support structures to enhance EU judicial co-operation (as far as the EAW procedure is concerned, details see Chap. 8).
It should be noted that in the context of the EAW mutual trust has been the reason for abolishing the double criminality requirement for a number of crimes (see below Sect. 5.4).
5.3 Direct Connection Between Judicial Authorities
The processing of the surrender request is an easy example of how the mutual recognition principle is incorporated into the practical process. Government approval is no longer required since the EAW is a judicial decision.63
Taking into account the fact that government approval is no longer required, the surrender procedure allows direct communication between judicial authorities. As is stated in the Preamble to the Framework Decision on the EAW, the role of central authorities in the execution of an EAW must be limited to practical and administrative assistance.64
The role of the executive is removed. As shown in analysis of the key features of the EAW, the procedure for executing the EAW is primarily judicial. The entire EAW procedure is ‘judicialised’.65 As confirmed the Constitutional Court of the Czech Republic, the role of the central authorities is limited to providing practical or administrative assistance.66
As far as transmission of the EAW is concerned, when the location of the requested person is known, the issuing judicial authority may transmit it directly to the executing judicial authority.67 Such a communication can be named simply ‘from judicial authority to judicial authority’. The principle supposes that the place of residence of the requested person in the other EU Member State is known to the authority issuing the EAW.
As regards the competent authorities—the issuing authority and the executing authority—the Framework Decision on the EAW does not define them. It ‘just’ indicates them stating that, first, the issuing judicial authority shall be the judicial authority of the issuing Member State which is competent to issue the EAW by virtue of the law of that State, and, second, the executing judicial authority, similarly, shall be the judicial authority of the executing Member State which is competent to execute the EAW by virtue of the law of that State.68
In the surrender procedure, the central authority, which is often the Ministry for Justice, the Ministry of Foreign Affairs or the General Prosecutor’s Office, has lost its power of decision to extradite and plays a role of co-ordinator. The judges and the public prosecutors became sole competent authorities in the surrender procedure.
Besides the direct connection between judicial authorities, the Framework Decision on the EAW includes the facultative use of central authorities in order to assist them. Each Member State may designate a central authority or when its legal system so provides, more than one central authority to assist the competent judicial authorities. Moreover, each Member State may, if it is necessary as a result of the organisation of its internal judicial system, make its central authority(ies) responsible for the administrative transmission and reception of EAWs as well as for all other official correspondence relating thereto.69
In the Netherlands, any public prosecutor in the Netherlands may act as an issuing judicial authority. The executing authority is the District Court of Amsterdam.70
In Belgium, in the case of surrender in order to prosecute a person the examining magistrate issues an EAW. In the case of surrender in order to execute a criminal sentence or a measure the public prosecutor has the competence to issue an EAW. The Council Chamber decides on the execution of the EAW. It makes the decision after hearing the examining magistrate, the prosecutor and the arrested person.71
The issuing authorities in the Slovak Republic are any district and regional courts, as well as the Specialised Criminal Court of the Slovak Republic and the Supreme Court of the Slovak Republic. The executing authorities are the regional prosecutors’ offices and the regional courts. In case of the execution, the competent authority to initiate proceedings concerning the EAW is the regional prosecution office which has jurisdiction over the place where a requested person has been arrested. If the arrested person indicates that he or she consents to surrender, the executing authority is the regional prosecutor’s office (regional prosecutor). Where the arrested person does not consent to his or her surrender, the executing authority is the regional court (judge) that has jurisdiction over the place where the person has been arrested.72
In the Czech Republic, issuing authority is every district judge upon the request of a public prosecutor in pre-trial proceeding and every presiding judge that carries out a trial can issue the EAW. In pre-trial proceeding, a judge can issue the EAW only upon a motion of a public prosecutor. A presiding judge does not need a motion of a public prosecutor to issue the EAW during a trial. The executing authorities are the regional courts.73
A question which begs consideration is whether police authorities can be competent to issue the EAW. The European Convention on Mutual Assistance in Criminal Matters 74 of 1959, adopted by the Council of Europe, made the contracting States declare what authorities they considered to be judicial authorities within the meaning of the Convention. For the European States this was a good solution, given the differences that exist between them when it comes to defining who is and who is not competent. As a consequence, the term ‘judicial authorities’ may include certain police authorities, as for example in Denmark. In case of the European evidence warrant75 (the other instrument based on the mutual recognition) for a group of the EU Member States it was unthinkable that their own national judges would have to act on the orders of foreign policemen.76 We suppose that in the case of the EAW the situation is the same.
Nevertheless, some Member States do not respect the guidelines of the Framework Decision on the EAW. Some States partially appointed central authorities in the guise of competent authorities, namely Estonia, Latvia, Lithuania, Finland and Sweden. On top of that, Denmark appointed a central authority in the guise of competent authority in all matters, namely the Ministry of Justice. It is the only designated judicial authority under the Framework Decision on the EAW. It is thus the only authority in Denmark with a competence to receive and execute EAWs.77 In addition, as far as Denmark is concerned, it does not share the EU’s ideas on judicial co-operation in criminal matters between the Member States. None of the provisions of the ‘Judicial Co-operation in Criminal Matters’,78 no measure adopted pursuant to that provisions, no provision of any international agreement concluded by the EU pursuant to that provisions, and no decision of the Court of Justice interpreting any such provision or measure or any measure amended or amendable pursuant to that provisions shall be binding upon or applicable in Denmark.79 However, at any time Denmark may decide that it no longer wishes to avail itself of that regime.80
5.4 Softened Double Criminality Requirement
The applicability of the double criminality requirement (also known as dual criminality requirement) means that the requested State gives assistance only in cases where the underlying offence is a crime both under the law of the requesting state as well as under the law of the requested State. It is presumed that the requesting state has made this assessment before sending out the request. The requested State determines whether the facts also constitute a criminal offence under its domestic law.81 For some forms of international co-operation that infringe more upon the rights of individuals, the treaties or conventions stipulate a requirement of double criminality. Traditionally, this concerned all forms of extradition.
Double criminality has been a general principle of international extradition law for some time, but found expression in the European Convention on Extradition. It stipulates that ‘extradition shall be granted in respect of offences punishable under the laws of the requesting Party and of the requested Party by deprivation of liberty or under a detention order for a maximum period of at least one year or by a more severe penalty’.82 Pursuant to cited provision, under the European Convention on Extradition the main condition under which a requested State is obliged to extradite a person to a requesting State is the requirement that the act in relation to which the extradition is requested is punishable under the laws of the requesting State and of the requested State—the absence of this double criminality is a mandatory ground for refusing the requested extradition.
The principle of double criminality has long been applied. It stems from the principle of legality (nulla poena sine lege), but is also closely linked to state sovereignty and reciprocity. It is often asserted that the requirement, although sometimes discretionary, constitutes a major obstacle to effective co-operation and many commentators argue that it is no longer necessary.83
The general approach of the EU instruments is to make assistance less and less dependant the principle double criminality. The European Commission has always regarded double criminality as a serious impediment to swift co-operation. It has continuously attacked the principle, declaring it as problematic in each of its proposals for new instruments, and has successfully reduced its application.84 Many EU’s newer instruments seek to abolish the requirement, at least partially.
A revolutionary step has been taken by the Framework Decision on the EAW. In surrender procedure, the double criminality is softened—it is not required for a certain number of offences. The principle of mutual recognition implies the abolition of the double criminality rule. The mutual trust has been the reason for abolishing the double criminality rule for a number of crimes.85 The long negotiations on this issue led to an overall compromise. In special categories of offences only the sentence as defined by the domestic law of the issuing State is now taken into account.
To clarify, in case of surrender procedure the verification of double criminality is abolished for a list of 32 categories of offences. A key feature of the EAW is the inclusion of a list of 32 offences for which the principle of double criminality is abolished.86 The double criminality of these offences is not checked by the judicial authority of the executing Member State which is competent to execute the EAW. In this case, issuing an EAW is subjected to following cumulative conditions: