Transcript European Arrest Warrant

European Arrest
Warrant
(EAW)
European Union
 Schengen
 Schengen Implementing Convention (SIC) – Articles 59-66

intented to supplement and to facilitate the implementation of the 1957 CoE
Convention
 Agreement of 26 May 1989 between the EC Member States on the
simplification and modernization of methods of transmitting extradition
requests
 1995 Convention on simplified extradition procedure
 1996 Convention relating to extradition
 2002 European arrest warrant
Schengen Implementing
Convention (SIC)
 interruption of prescription - amnesty: ruled by law requesting
State only (Article 62)
 extradition duty for matters of excise duty, VAT and customs
duties (Article 63)
 notice included in the SIS in accordance with Article 95: same
force as a request for provisional arrest under the 1957 CoE
Convention (Article 64)
 transmission allowed via Ministry (Article 65)
 informal (simplified) procedure possible (Article 66)
1996 Convention relating to
extradition
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supplementing
1957 CoE Convention on Extradition
1977 CoE Convention on the Suppression of Terrorism
SIC
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new developments
extraditable offences (changes in threshold)
Dual criminality rule abolished for terrorism
political offence exception abolished
fiscal offences - prescription - amnesty: SIC improved
extradition of own nationals (to be derogated by declaration)
specialty principle abolished (to be derogated by declaration)
Schengen Agreement
Schengen Zone
 SIS Functioning
CSIS
Central Schengen
Information System
Central computer
in
Strasbourg
NSIS
National Schengen
Information Systems
SIRENE
Italy
SIRENE
Belgium
SIRENE
Germany
B
I
SIRENE
France
F
D
S
Dk
SIRENE
Austria
A
CSIS
SIRENE
Netherlands
SIRENE
Sweden
NL
GR
SIRENE
Denmark
SIRENE
Greece
SF
IS
SIRENE
Luxemburg
LUX
E
P
SIRENE
Portugal
SIRENE
Finland
SIRENE
ICELAND
SIRENE
Spian
N
SIRENE
Norway
Schengen Agreement Application Convention
(SAAS)
ALERTS in the SIS
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Art. 95 persons wanted for arrest for extradition purposes
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Art. 96 third country nationals refusing entry into the schengen area or
deportation, expulsion or repatriation matters
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Art. 97 missing persons or person who temporarilly need to be placed
unter police protection in order to prevent threads
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Art. 98 information on witnesses or persons summoned to appear
before a judicial authority
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Art. 99 discreet surveillance on persons or vehicles
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Art. 100 informations on stoles vehicles, stolen or misappropriate
firearms etc.
Interpol
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Blue notice – to collect aaditional
Information about a person‘s identity
Or illegal activities in relation to a
criminal matter
Yellow notice – to help
locate missing persons,
especially minors
Black notice – to seek
information about unidentified
bodies
Orange notice – to warn police, public
entities and other international organizations
of dangerous materials, crimal acts or
events that pose a potential threat to public
safety
Red notice – to seek the arrest or provisional
arrest of a Person with a view to extradition
based on an arrest warrant
Green notice – to provide warnings about
persons who have committed criminal offences
and are likely to repeat these crimes
Differences between the SIS
and Interpol alerts
 The SIS alert guarantees almost real-time transmission of
informations to all national SIS bureaus
 Art. 95 SAAS obliges all contracting parties prior to
issuing an alert, to check whether the arrest is authorized
under the national legislation of the requested
Contracting parties
 Same legal basis in all SIS states
 In SIS: Strict data protection
 SIS is prior to an Interpol for EU countries
Background to the EAW:
• 1999: Tampere European Council
conclusions (35)
• 2000: Programme of measures to implement
the principle of mutual recognition in
criminal matters
• 2001-09-11
based on mutual recognition
Mutual recognition of judicial decisions in criminal
matters
Only in the European Union
 Principle: a decision issued by a judge in Member State
A must be executed in Member State B as if it had been
issued in that Member State B
 = « free circulation » of judicial decisions
 The principle was adopted in 1999 but is implemented
step by step
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3. Mutual recognition of judicial decisions in criminal matters
Supposed to be a radical change compared to the previous regime :
- Full « judiciarisation » of the procedure : the governments can not be
involved in individual cases
- Partial abolition of the requirement of double criminality
- Grounds of refusal strictly defined (full abolition of the exception for
political offence)
- Specific timelimits
- Specific form: a « warrant » or a « certificate »
 Works well with the European Arrest Warrant, less convincing for the
moment for other types of judicial decisions  work in progress…
Mutual recognition of judicial decisions in criminal matters
Why is mutual recognition limited to the European Union ?
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Different level of integration
EU cooperation = political cooperation
Monitoring of EU accession
Nevertheless, not always easy to justify that difference in the
Council of Europe
Objectives
• Political: further the creation of an area of
freedom, justice and
security
– free movement of presentence and final
decisions in criminal matters
• Practical: reduce delays and complexity of
extradition procedures between the Member
States
Guiding principles
• Surrender pursuant to
an EAW should
become a judicially
controlled process
– primary control takes
place by issuing
judicial authority
– limitation of the role of
competent (i.e.
administrative)
authorities
• Human rights
protection
– based on a high level
of confidence in each
other judicial system exceptional suspension
– persecution as ground
of refusal
– safeguard
constitutional
principles
Concept of EAW
Concept of EAW
• Judicial decision
issued by a MS with
a view to the arrest
and surrender of a
requested person by
another MS
• Two purposes:
– conducting criminal
prosecution
(suspects)
– executing a custodial
sentence or
detention order
(convicted persons)
Issuing of an EAW
• Any offence punishable in the issuing state
by at least 12 m or for which a
sentence/detention order has been
passed/made of at least 4m
• List of 33 offences: no double criminality if
punishable in the issuing state by at least 3
years
Formal requirements
 no extradition documents, but one form,
available in all 23 official languages
 no evidentiary requirements!
Evidentiary requirements
None under the 1957 CoE
convention
- For Continental European States, the issuance
of a warrant of arrest within a requesting state,
evidences that a judicial authority, within that
state, has determined that there is sufficient
evidence in the case. On that basis, the
authorities in the requested state should be
able to accept and rely on that determination
and not look behind it to reassess the
underlying basis of the decision.
Common Law States
- Common law states may require, in addition to
the warrant, the submission of evidence by the
foreign state, sufficient to meet a prescribed
domestic standard. Many such states have also
demanded that the evidence be adduced in a
form consistent with the law of the requested
state, before extradition will be granted
- => reason: extradition is considered as a
genuine new criminal procedure which has to
meet all the domestic criterias for criminal
prosecution
Transmission of an EAW
• Direct transmission to competent executing
authority:
– find out through EJN
– transmit through secure telecommunications
network EJN
– if not possible: through Interpol
– in general: any means capable of producing
written records - allowing to establish
authenticity
Transmission of an EAW
Signaling the EAW through SIS
– transitional period: EAW will still have to be
transmitted
• Central authorities may be made responsible
for the administrative transmission or
reception of EAW’s
Handling of an EAW by
executing judicial authority
Obligation to arrest person (unless prima
facie ground of non-execution?)
– detention shall be governed by law of
executing MS + Article 5 ECHR
– right to counsel + interpreter
Handling of an EAW by
executing judicial authority:
information of person concerned
• Duty to inform the arrested person of the
EAW and of its content + of possibility to
consent to surrender
• When EAW in regard of a suspect person
must be heard by a judicial authority in
accordance with the law of the executing
MS and with conditions determined by
issuing & executing judicial authorities
Handling of an EAW by
executing judicial authority:
delays for decision to surrender
• If person consents, decision needs to be
taken within 10 days after consent
• Otherwise:
– decision within 60 days after arrest
– issuing authority may extend by 30 days by
informing the issuing authority
– if time limits are not respected, reasons must be
given
Handling of an EAW by
executing judicial authority:
delays for decision to surrender
• Delays start running at arrest, unless
– 1) privileges/immunities: from the date it is
waived
– 2) speciality: from the day on which the
speciality rules cease to apply
Handling of an EAW by
executing judicial authority:
taking of decision to surrender
Principal obligation for executing state to
execute it- except grounds of non-execution
• Distinction (non-)mandatory grounds
– non-mandatory grounds will depend on the
legislation of the executing MS
– discretion for executing authority?
• In case of refusal: reasoned decision
Handling of an EAW by
executing judicial authority:
taking of decision to surrender
• Mandatory grounds of refusal:
– amnesty
– ne bis in idem (served or no longer executable)
– person under the age of penal responsibility
Handling of an EAW by
executing judicial authority:
taking of decision to surrender
Non-mandatory grounds of execution
– double incrimination when applicable (2)
– other forms of ne bis in idem
– statute-barred offences
– execution of sentence in executing state
– extraterritorial jurisdiction
Dual criminality
 the act in question must be a crime in both the
requesting and requested states !
 historic origin in the 19th century – to protect
one‘s citizen from „unjust“ prosecution
 different standards in the countries of the
19th/early 20th century about what was a
criminal act
 extradition was a tool for foreign policy
Handling of an EAW by
executing judicial authority:
taking of decision to surrender
• Three situations where guarantees may
be demanded by the executing authority
– in absentia
– life sentences
– return of nationals
Non extradition of nationals
 historic background in Continental
Europe:
- ancient greek city states and Rome did not
extradite their citizens to other States
- up until the early 1800's, extradition was directed
almost exclusively to the return of fugitives
sought for political or religious offences.
- Catholic/Protestant States were to protect their
citizens from religious prosecution
traditional „safeguards“ in case
of non-extradition of nationals
 „personal jurisdiction“: international law
recognized the criminal jurisdiction for acts of
foreigners committed on its territory and acts of
its own nationals committed abroad (aut dedere aut
iudicare)
 recognition of foreign judgements: courts would
recognize and enforce a foreign judgement
against their own citizen, even if the defendant
may not have submitted himself under that
jurisdiction otherwise
Anglo-American Law
 The historical basis of English & common law
criminal jurisdiction is territorial, it being the
function of the English criminal courts to
maintain the Queen's peace within her realm Board of Trade v. Owen [1957] A.C. 602
 It would be an unjustifiable interference with the
sovereignty of other nations over the conduct of
persons in their own territory if we were to
punish persons for harmful conduct which did
not take place in the UK – Treacy v DPP [1971]
AC 537
Handling of an EAW: decision in
case of multiple requests
• Due consideration of
all circumstances, in
particular
– relative seriousness
and place of the
offences
– respective dates of
EAW’s
– suspects or convicted
persons
• Decision by executing
judicial authority
(Eurojust advice) in
case of EAW’s – by
competent authority
in case of
concurrence with
extradition request
from third state
Decision to surrender: remedies
available
• Framework decision: ???
• Domestic law of executing MS
• Rule 39 of the Rules of the European
Court
on Human Rights
Surrender of persons pursuant to
an EAW: time limits
• Immediate notification of decision to
surrender to the issuing judicial authority
• Surrender as soon as possible, but no
later than 10 days after final decision, on
date agreed
• In case of unforeseen circumstances
agree on new date and surrender within
10 days of that date
Surrender of persons pursuant to
an EAW: time limits
• Exceptional temporary postponement for
serious humanitarian reasons
• In case of violation of these time limits:
release
Surrender of persons pursuant to
an EAW: postponement
• Possibility to postpone surrender in order
to allow prosecution/service of sentence
in executing MS
• Alternative: surrender on conditions
agreed by executing and issuing judicial
authorities
Effect of surrender pursuant to
EAW:
• Deduction of period of detention served in
the executing MS
• Speciality principle
• Surrender or subsequent extradition