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European arrest warrant

The European Union (EU) has adopted a framework decision on the European arrest warrant and the surrender procedures between Member States. The decision simplifies and speeds up the procedures, given that the whole political and administrative phase is replaced by a judicial mechanism.

ACT

Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States [See amending act(s)].

SUMMARY

The European arrest warrant adopted in 2002 replaces the 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). The framework decision entered into force on 1 January 2004 and replaced the existing texts in this area.

However, Member States remain at liberty to apply and conclude bilateral or multilateral agreements insofar as such agreements help to simplify or facilitate the surrender procedures further. The application of such agreements should 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, and 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 the executing Member State (double criminality rule).

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 60 days after the arrest. It then immediately notifies the issuing authority of the decision taken.

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.

Grounds for refusal to execute a warrant and refusal to surrender

A 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/her age.

In certain other circumstances (e.g. when criminal prosecution or punishment is statute-barred according to the law of the executing Member State or when a final judgment has been passed by a third State in respect of the same act), the executing Member State may refuse to execute the arrest warrant. It may also refuse to execute the warrant if the person concerned did not personally appear at the trial where the decision was rendered, unless the appropriate safeguards were taken. In all cases grounds for the refusal must be given.

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

Since 1 January 2004, extradition requests received by Member States have been dealt with in accordance with the national measures adopted to implement the framework decision.

The framework decision applies to Gibraltar.

REFERENCES

Act Entry into force Deadline for transposition in the Member States Official Journal

Framework Decision 2002/584/JHA

7.8.2002

31.12.2003

OJ L 190, 18.7.2002

Amending act(s) Entry into force Deadline for transposition in the Member States Official Journal

Framework Decision 2009/299/JHA

28.3.2009

28.3.2011

OJ L 81, 27.3.2009

RELATED ACTS

Report from the Commission to the European Parliament and the Council of 11 April 2011 on the implementation since 2007 of the Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States [COM(2011) 175 final – Not published in the Official Journal].
This report describes seven years of implementation of the European arrest warrant. The initiative seems to be a success in operational terms – 54,689 warrants have been issued and 11,630 executed. Extradition between EU countries now takes fourteen to seventeen days, if the person consents to their transfer, and forty-eight days if they do not give consent. Previously, this process took more than one year. By using this mechanism to ensure that the opening of borders does not assist those seeking to avoid the application of the law, the free movement of persons in the EU has been strengthened. The Commission notes some shortcomings, however, particularly with regard to respect for fundamental rights. It requests that Member States should bring their legislation into line with Framework Decision 2002/584/JHA where that is not already the case, and implement instruments already adopted in order to improve the functioning of the warrant. The report also notes that too many warrants are issued for minor offences and encourages requesting Member States to apply the principle of proportionality.

Report from the Commission of 24 January 2006 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.

Report from the Commission of 23 February 2005 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 to 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 as well as in terms of the speed of the surrender procedure, while the fundamental rights of the persons concerned have been observed.

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 29.9.2003].
Denmark, Finland and Sweden state that their uniform legislation in force allows the provisions 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.
Last updated: 10.07.2011
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