The European Arrest Warrant (EAW) is an arrest warrant valid throughout all member states of the European Union (EU). Once issued by a member state, it requires the receiving member state to arrest and transfer a criminal suspect or sentenced person to the issuing state so that the person can be put on trial or complete a detention period. Extradition must take place within 90 days of arrest or within 10 days if the arrested person consents to surrender.
An EAW can only be issued for the purposes of conducting a criminal prosecution (not merely an investigation), or enforcing a custodial sentence.[1] It can only be issued for offences carrying a maximum penalty of 12 months or more. Where sentence has already been passed an EAW can only be issued if the prison term to be enforced is at least four months long.
The introduction of the EAW system was intended to increase the speed and ease of extradition throughout EU countries by removing the political and administrative phases of decision-making which had characterised the previous system of extradition in Europe, and converting the process into a system run entirely by the judiciary. Since 2004 the use of the EAW has steadily risen. Member state country evaluation reports suggest that the number of EAWs issued has increased from approximately 3000 in 2004 to 13,500 in 2008.
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Agreement in principle on the introduction of the EAW was reached by EU member states at the Laeken Summit in December 2001 and the Framework Decision adopted on 13 June 2002.[2] and entered into force on 7 August 2003, with a deadline for final implementation by member states of 31 December 2003.
The resulting European Arrest Warrant legislation came into force on 1 January 2004 in eight member states, namely Belgium, Denmark, Finland, Ireland, Portugal, Spain, Sweden, and the United Kingdom. By 1 November 2004 all member states had implemented the legislation except Italy, which did so on 22 April 2005.[3]
The European Commission evaluated the implementation of the European Arrest Warrant in a report issued in February 2005.[4] The report concluded that the legislation was adopted successfully overall although there were differences in the way each member state implemented the Framework Decision.
Since the Framework Decision came into operation, the average time taken to execute a warrant is provisionally estimated to be 43 days (as opposed to more than nine months under the old system of extradition). This does not include cases where the person consents to surrender, for which the average time taken is 13 days.[5]
The first reported use of the EAW was in January 2004 when a Swedish suspect was arrested in Spain and transferred back to Sweden.[6] Member state country evaluation reports suggest that the number of EAWs issued has increased from approximately 3,000 in 2004 to 13,500 in 2008. Much of this increase has been driven by the large number of EAWs being issued by Poland, which in 2008 issued 4,829 EAWs, approximately 40% of all EAWs issued that year.[7] In 2008, 515 people were extradited from the UK under the EAW system.[8]
A valid European Arrest Warrant may only be issued by the competent judicial authority in the issuing member state. In the England and Wales, this authority is the "appropriate judge" as defined in section 149 of the Extradition Act 2003. That means a Justice of the Peace, District Judge (Magistrates Courts) or a judge entitled to exercise the jurisdiction of the Crown Court. Section 149 also states that in Scotland the "appropriate judge" is a sheriff and in Northern Ireland a resident magistrate or Justice of the Peace.[9] The issuing state must complete a form stating the nature of the offence and giving a short description of the circumstances surrounding the offence, details of the person sought and the applicable penalty. This form is then sent to the relevant receiving state if the issuing state knows the location of the person sought. If the issuing state does not know, they will distribute the EAW to all member states via SIRENE and Interpol.[10]
Once arrested, the person must be informed of the EAW and its contents. They must also be informed that they have the right to consent to surrender and the right to legal advice and an interpreter. If they do not consent to surrender they will face a hearing, where a judge will decide whether any of the legal bars to extradition exist. These legal bars include:
If one of these legal bars applies, the judge must discharge the arrested person. If none of these legal bars apply, the judge must order the extradition of the arrested person. There must be an opportunity for both parties to appeal the decision. Extradition must take place within 90 days of arrest or within ten days if the arrested person consents to surrender.
The EAW partly recognizes the double criminality principle.[11] This means that, for certain specified offences (such as fraud and money laundering), EU members may be obliged to extradite individuals even if the offense in question does not constitute a criminal offense in the extraditing country.
In July 2005 an EAW was executed to allow the extradition of Osman Hussain, one of the suspects in the 21 July 2005 London bombings, back to Britain from Italy. EAWs were also issued by Italian prosecutor Guido Salvini in 2005 against twenty-two CIA agents accused of the kidnapping of Hassan Mustafa Osama Nasr (Imam Rapito affair).
On 1 October 2008, Frederick Toben was detained at London’s Heathrow Airport under a European Arrest Warrant issued by the German authorities for allegedly publishing "anti-Semitic and/or revisionist" material.
On 24 February 2011 a EAW was upheld after a hearing at Belmarsh Magistrates Court in respect of the proposed extradition of Julian Assange.
Since its implementation in 2004, the EAW system has been criticised for inappropriate use. Following a report by an internal working party, the Presidency of the Council of the European Union suggested in 2007 that it would be appropriate to have a discussion at EU level on the principle of proportionality which is outset in article 5 of the Treaty establishing the European Community and how to take this principle into consideration by judicial authorities when issuing a European arrest warrant.[12]
EAWs have been issued for minor offences such as possession of 0.45 grams of cannabis; theft of two car tires; driving a car under the influence of alcohol, where the limit was not significantly exceeded (0.81 mg/l) and the theft of a piglet.[12] In the UK, persons arrested under an EAW have been extradited for minor offences such as the stealing of ten chickens (Romania), unintentionally receiving a stolen mobile phone (Poland), and theft of £20 worth of petrol (Czech Republic).[13]
At the other extreme, the EAW has failed in some cases. The Irish Supreme Court refused to extradite an Irish citizen to Hungary who was alleged to have killed two children through negligent driving. While the Irish Court never questioned the facts of the case or the fairness or outcome of the Hungarian trial, it decided that the person did not technically "flee" from Hungary, only "failed to return," having left the country with the consent of the Hungarian authorities; therefore, the legal requirements for extradition under an EAW had not been established.[14][15] However, the requirement that the person have "fled" the requesting jurisdiction has since been removed from Irish law, and a new warrant has been issued by the Hungarian authorities.[16]
Fair Trials International, the London-based human rights charity, claims to have highlighted a number of cases which demonstrate that the European Arrest Warrant system is causing serious injustice and jeopardizing the right to a fair trial.[17] In particular
Controversial cases include: