Faculty of Law, Pan-European University, Bratislava, Slovak Republic
Norway and Iceland expressed their wish to enter into the surrender procedure with the European Union Member States. The chapter deals with the ‘Norway/Island surrender procedure’. It is divided into two sections and is summarised with concluding observations. Section 9.1 analyses its legal Basis—an Agreement on the Surrender Procedure between the Member States of the European Union and Iceland and Norway. Further, in Sect. 9.2 are presented its modifications.
[…] Iceland and Norway have expressed their wish to enter into an agreement enabling them to expedite arrangements for handing over suspects and convicts with the Member States of the European Union and to apply a surrender procedure with the Member States […]1 (Agreement on the Surrender Procedure between the Member States of the European Union and Iceland and Norway)
9.1 Legal Basis: Agreement on the Surrender Procedure
Norway and Island have established a variety of forms of co-operation with the EU, for example, the Schengen co-operation2 and the judicial co-operation in criminal matters should be mentioned.
However, their activities on co-operation are limited. For example, as regards Norway as pointed out by Muth, the EAW illustrates its restricted activity radius as dog behind fence. The negotiations to the EAW have shed light on a principal disadvantage that Norway faces—its status as third country from the perspective of the EU Member States’ constitutions. The principle of mutual recognition makes national legal systems more vulnerable against deficiencies of the legal systems of co-operating countries. Therefore, some constitutions do not regard a third country with the same level of trust as they regard legal systems of other EU Member States. This fact has hampered the EAW negotiations from Norwegian perspective. Against this background, also future negotiations on mutual recognition agreements might prove challenging for Norway.3
All Member States of the EU and Norway and Iceland are parties to a number of conventions in the field of extradition, including the European Convention on Extradition. They wished to improve judicial co-operation in criminal matters and considered that relationships among them require close co-operation in the fight against crime. Norway and Iceland expressed their wish to enter into an agreement enabling them to expedite arrangements for handing over suspects and convicts with the EU Member States and to apply a surrender procedure with them.
As a consequence, pursuant to the Council Decision,4 in 2006 the EU, on the one hand, and Iceland and Norway, on the other hand, signed the Agreement on the Surrender Procedure between the Member States of the EU and Iceland and Norway 5 (hereinafter the ‘Agreement on the surrender procedure’). The agreement extends, with some modifications, the mechanism for surrender to Norway and Iceland.
However, Agreement on the surrender procedure has not yet been concluded and has not yet been in force. It was signed more than 6 years ago and therefore, as argues the European Commission, it should now be concluded as soon as possible. 6 The European Commission therefore recommended to the Council of the EU, after obtaining the consent of the European Parliament, to adopt a decision concluding the Agreement.7 In addition, it must be ratified by all EU Member States.
The Agreement on the surrender procedure is aimed at improving the surrender procedure for the purpose of prosecution or execution of sentence between, on the one hand, the EU Member States and, on the other hand, Norway and Iceland, by taking account of, as minimum standards, the terms of the Convention relating to extradition between the Member States of the EU8 of 1996.
The contracting parties undertook to improve the surrender for the purpose of prosecution or execution of sentence between, on the one hand, the EU Member States and, on the other hand, Norway and Iceland […]. In addition, they undertook to ensure that the extradition system between, on the one hand, the EU Member States and, on the other hand, Norway and Iceland shall be based on a mechanism of surrender pursuant to an arrest warrant […].9
Instead of the term ‘European arrest warrant’, the Agreement on the surrender procedure uses the term ‘arrest warrant’. It shall mean a judicial decision issued by a State with a view to the arrest and surrender by another State of a requested person, for the purposes of conducting a criminal prosecution or executing a custodial sentence or detention order.10 Comparing the definitions of the EAW introduced by the Framework Decision on the EAW11 and the Agreement on the surrender procedure, their meaning is the same.
9.1.2 Relation to Law of Extradition
Without prejudice to their application in relations between the EU Member States, Norway and Iceland on the one hand, and, third States on the other hand, the Agreement on surrender procedure from its entry into force shall replace the corresponding provisions of the following conventions applicable in the field of extradition in relations between Norway and Iceland, on the one hand, and the EU Member States, on the other hand12:
the European Convention on Extradition13 of 1957, adopted by the Council of Europe, as well as its first additional protocol14 of 1975 and the second additional protocol15 of 1978,
the European Convention on the Suppression of Terrorism16 of 1977, as well adopted by the Council of Europe, as far as extradition is concerned as amended by the 2003 Protocol once it will enter into force,
the Convention implementing the Schengen Agreement17 of 1990, as far as extradition is concerned, and
Schengen-relevant provisions of the 1995 and 1996 EU Extradition Conventions to the extent that they are in force.
Comparing the list of replaced extradition law by the Framework Decision on the EAW18 and the list of the Agreement on the surrender procedure, the latter is shorter.
However, agreements or arrangements in force when the Agreement on the surrender procedure is concluded in so far as such agreements or arrangements allow the objectives of the Agreement to be extended or enlarged and help to simplify or facilitate further the procedures for surrender of persons who are the subject of an arrest warrant.19 The agreements and arrangements may in no case affect relations with States which are not parties to them.
In addition, States may conclude bilateral or multilateral agreements or arrangements after the Agreement on the surrender procedure has come into force in so far as such agreements or arrangements allow the prescriptions of the Agreement to be extended or enlarged and help to simplify or facilitate further the procedures for surrender of persons who are the subject of an arrest warrant, for example, in particular by fixing shorter time limits, by further limiting the grounds for refusal.20
The Agreement on the surrender procedure may be terminated by the contracting parties. In the event of termination by either Iceland or Norway, the Agreement on the surrender procedure shall remain in force between the EU and the Contracting Party for which it has not been terminated. Its termination shall take effect 6 months after the deposit of the notification of termination. Procedures for complying with requests for surrender still pending at that date shall be completed in conformity with the provisions of the Agreement.21
Thus, in spite of the fact that the surrender procedure between current 28 Member States of the EU is permanent, the ‘Nordic Surrender Procedure’ is not.22
9.2 Modifications of the Procedure
In principle, the surrender procedure under the Agreement on the surrender procedure is almost identical as procedure under the Framework Decision on the EAW. Only some modifications can be observed.
9.2.1 Issuing the Arrest Warrant
Similarly to the Framework Decision on the EAW, the Agreement on the surrender procedure introduced two possible alternatives for issuing the arrest warrant: standard issuing and issuing without verification of the double criminality of the offence. However, some varieties can be observed.
As far as standard issuing is concerned, similarly to procedure under the Framework Decision on the EAW, an arrest warrant can be issued in two cases, namely23:
for existing offence punishable by the law of the issuing State by a custodial sentence or a detention order for a maximum period of at least 12 months, or
for a sentence has been passed or a detention order has been made, for sentences of at least 4 months.
In such instances, the executing State shall impose the dual criminality requirement. Surrender shall be subject to the condition that the acts for which the arrest warrant has been issued constitute an offence under the law of the executing State, whatever the constituent elements or however it is described.24 It should be noticed, that while the Framework Decision on the EAW uses the wording ‘… surrender may be