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European arrest warrant
| The European Union has adopted a Framework Decision on the European arrest warrant and the surrender procedures between Member States. The decision simplifies and speeds up the procedure, given that the whole political and administrative phase is replaced by a judicial mechanism. |
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ACT
Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States.
SUMMARY
The Tampere European Council called on the Member States to make the principle of mutual recognition the cornerstone of a true European law-enforcement area. The European arrest warrant proposed by the Commission is designed to replace the current extradition system by requiring each national judicial authority (the executing judicial authority) to recognise, ipso facto, and with a minimum of formalities, requests for the surrender of a person made by the judicial authority of another Member State (the issuing judicial authority). As of 1 July 2004, the framework decision will therefore replace the existing texts, such as:
- the 1957 European Extradition Convention and the 1978 European Convention on the suppression of terrorism as regards extradition;
- the agreement of 26 May 1989 between 12 Member States on simplifying the transmission of extradition requests;
- the 1995 Convention on the simplified extradition procedure ;
- the 1996 Convention on extradition ;
- the relevant provisions of the Schengen agreement.
Nevertheless, the Member States remain at liberty to apply and conclude bilateral or multilateral agreements insofar as such agreements help to simplify or facilitate further the surrender procedures. The application of such agreements may in no case affect relations with Member States that are not parties to them.
General principles
The framework decision defines "European arrest warrant" as any judicial decision issued by a Member State with a view to the arrest or surrender by another Member State of a requested person, for the purposes of:
- conducting a criminal prosecution;
- executing a custodial sentence;
- executing a detention order.
The warrant applies in the following cases:
- where a final sentence of imprisonment or a detention order has been imposed for a period of at least four months;
- for offences punishable by imprisonment or a detention order for a maximum period of at least one year.
If they are punishable in the issuing Member State by a custodial sentence of at least three years, the following offences, among others, may give rise to surrender without verification of the double criminality of the act: terrorism, trafficking in human beings, corruption, participation in a criminal organisation, counterfeiting currency, murder, racism and xenophobia, rape, trafficking in stolen vehicles, fraud including that affecting the financial interests of the Communities .
For criminal acts other than those mentioned above, surrender may be subject to the condition that the act for which surrender is requested constitutes an offence under the law of executing Member State (double criminality rule).
The Member States appoint the competent (issuing and executing) judicial authorities and inform the General Secretariat of the Council accordingly. They may also designate a central authority responsible for assisting the judicial authorities (administrative support, translations, etc.).
The European arrest warrant must contain information on the identity of the person concerned, the issuing judicial authority, the final judgment, the nature of the offence, the penalty, etc. (a specimen form is attached to the Framework Decision).
Procedures
As a general rule, the issuing authority transmits the European arrest warrant directly to the executing judicial authority. Provision is made for cooperation with the Schengen Information System (SIS) and with Interpol. If the authority of the executing Member State is not known, the issuing Member State will receive assistance from the European judicial network .
All Member States may take necessary and proportionate coercive measures vis-à-vis requested persons. When an individual is arrested, he/she must be made aware of the contents of the arrest warrant and is entitled to the services of a lawyer and an interpreter.
In all cases, the executing authority may decide to keep the individual in custody or to release him/her subject to certain conditions.
Pending a decision, the executing authority (in accordance with national law) hears the person concerned. The executing judicial authority must take a final decision on execution of the European arrest warrant no later than sixty days after the arrest. It then immediately notifies the issuing authority of the decision taken.
However, if the information provided is insufficient, it may ask the issuing authority to provide additional information.
Any period of detention arising from execution of the European arrest warrant must be deducted from the total period of deprivation of liberty imposed.
The arrested person may consent to his or her surrender. Consent may not be revoked and must be given voluntarily and in full knowledge of the consequences. In this specific case the executing judicial authority must take a final decision on execution of the warrant within a period of ten days after consent has been given.
Subject to certain conditions, each Member State is free to provide that consent may be revoked. To do so, it must have made a statement, which is attached to the instrument adopting the Framework Decision, specifying the procedures allowing consent to be revoked.
Grounds for refusal to execute a warrant and refusal to surrender
Each Member State may refuse to execute a European arrest warrant if:
- final judgment has already been passed by a Member State upon the requested person in respect of the same offence (ne bis in idem principle);
- the offence is covered by an amnesty in the executing Member State;
- the person concerned may not be held criminally responsible by the executing State owing to his age.
In certain other circumstances (e.g. criminal prosecution or punishment is statute-barred according to the law of the executing Member State, final judgment passed by a third State in respect of the same act), the executing Member State may refuse to execute the arrest warrant. In all cases grounds for the refusal must be given.
The Framework Decision also provides for the possibility of seizing or handing over certain property that may be required as evidence or has been acquired as a result of the offence.
On presentation of certain information (relating to the arrest warrant, the nature of the offence, the identity of the person concerned, etc.), each Member State must permit the transit through its territory of a requested person who is being surrendered.
The warrant is translated into the official language of the executing Member State and sent by any means capable of producing written records and allowing the executing Member State to establish its authenticity.
Practical, general and final provisions
From 1 January 2004 extradition requests received by Member States will be dealt with in accordance with the national measures adopted to implement the Framework Decision. However, any Member State may make a statement indicating that, as an executing Member State, it will continue to apply the provisions in force before 1 January 2004 to requests relating to acts committed before a certain date, which it must specify.
The Framework Decision applies to Gibraltar.
Member States must take the necessary measures to comply with this Framework Decision by 31 December 2001. The provisions adopted must be transmitted to the General Secretariat of the Council and the Commission.
By 31 December 2004 at the latest the Commission will submit a report to the European Parliament and to the Council on the operation of the Framework Decision, accompanied, where necessary, by legislative proposals.
REFERENCES
| Act | Entry into force | Deadline for transposition in the Member States | Official Journal |
|---|---|---|---|
| Decision 2002/584/JHA | 07.08.2002 | 31.12.2003 | OJ L 190 of 18.07.2002 |
RELATED ACTS
Report from the Commission based on Article 34 of the Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States (revised version) [COM(2006) 8 final - Not published in the Official Journal]
In its revised version, the report focuses above all on the Italian legislation adopted since the first report. The Commission considers that, despite the initial delay, the European arrest warrant is operational in most of the cases provided for by the Member States. A second report scheduled for June 2006 will update the evaluation for all the Member States.
Report from the Commission based on Article 34 of the Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States [COM(2005) 63 final - Not published in the Official Journal]
According the evaluation made by the Commission in its report, the impact of the European arrest warrant since its entry into force on 1 January 2004 has been positive both in terms of depoliticisation and effectiveness and in terms of the speed of the surrender procedure, while the fundamental rights of the persons concerned have been observed. Despite an initial delay in transposal in half the Member States, the European arrest warrant was operational throughout the Union on the date of the report (except in Italy, where it entered into force on 14 May 2005) and in most of the cases provided for. The surrender of an individual to another Member State now takes on average between only 13 and 43 days, compared with extradition, which previously took more than nine months.
The overall success of the European arrest warrant should not make one lose sight of the effort that is still required by the Member States singled out by the Commission as not having fully complied with their obligations. The case of Italy apart, the main difficulties identified in the report in some Member States are an abusive restriction on the application over time of the European arrest warrant, the introduction of grounds of refusal not provided for in the Framework Decision and the involvement of a government authority in the judicial procedure.
Statements provided for in Article 31(2) of Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedure between Member States [Official Journal L 246 of 29.09.2003]
Denmark, Finland and Sweden state that their uniform legislation in force allows the prescriptions of the Framework Decision to be extended and enlarged. They will continue to apply the uniform legislation in force between them, namely:
- Denmark: Nordic Extradition Act (Act No 27 of 3 February 1960, as amended);
- Finland: Nordic Extradition Act (270/1960);
- Sweden: Act (1959:254) concerning extradition to Denmark, Finland, Iceland and Norway for criminal offences.
Statements made by certain Member States on the adoption of the Framework Decision [Official Journal L 190 of 18.07.2002]
France, Italy and Austria have expressed their intention of continuing to apply the extradition system applicable before 1 January 2004 to requests relating to acts committed before a certain date (statements pursuant to Article 32 of the Framework Decision).
Belgium, Denmark, Ireland, Finland and Sweden have stated their intention to consider as revocable the consent to surrender expressed by the person concerned (statements pursuant to Article 13(4) of the Framework Decision).
Last updated: 7.4.2006