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MEMO/05/58

Brussels, 23 February 2005

Commission evaluation report: the European arrest warrant has broadly achieved its objectives

Today the Commission presented its report evaluating the implementation of the European arrest warrant. The EAW was established by the Council Framework Decision of 13 June 2002 and is the first and most symbolic measure giving effect to the mutual recognition principle. Since 1 January 2004, the EAW has replaced the extradition procedure between the Member States.

The EAW is now implemented and applied in all the Member States except Italy. Requests for extradition that they are still presenting in some cases are therefore now likely to be rejected by the other Member States.

According to the Commission report, further efforts are still required in Italy, where the matter is still before Parliament, and in certain Member States to come fully into line with the Framework Decision (in particular, for reasons specific to each country, the Czech Republic, Denmark, Estonia, Ireland, Luxembourg, Malta, the Netherlands, Slovenia and the United Kingdom).

The surrender of wanted persons between Member States is now an entirely judicial procedure under the Framework Decision, and there is no review by executive authorities. The Member States have broadly followed this principle, even though the role conferred on the central authorities sometimes extends beyond what the Framework Decision allows. The Decision’s general aim is to reduce the number of grounds for refusal to surrender people between Member States and to seriously limit the forms of crime for which the double criminality rule applies (the rule that the facts must constitute an offence both in the Member State where the person is located and the Member State seeking that person). This has been achieved, even though a wide variety of legal situations are still allowed, depending on the choice of transposal in each Member State (variable number of grounds for refusal and of guarantees required).

There are still a few difficulties. Three Member States (Czech Republic, Luxembourg and Slovenia) have unilaterally restricted the application of the EAW in time, contrary to the Framework Decision. Requests for extradition that they are still presenting in some cases are therefore now likely to be rejected by the other Member States.

Two Member States (Czech Republic and the Netherlands) require a modulation of penalties to align them on those of their own system before they can be imposed on their own nationals, which effectively reinstates the double criminality rule. Others have introduced grounds for refusal contrary to the Framework Decision (Denmark, Malta, Netherlands, Portugal and the United Kingdom), such as the threat of political discrimination, national security considerations or review of the substance of the case.

But the effectiveness of the EAW can be gauged provisionally from the 2 603 warrants issued, the 653 persons arrested and the 104 persons surrendered up to September 2004. The surrender of nationals, a major innovation in the Framework Decision, is now a fact, though most Member States have chosen to apply the condition that in the case of their nationals the sentence should be executed on their territory.

Apart from the fact that the procedure is quicker now that there is no executive discretion involved, the speed of the EAW procedure flows from the combined effect of there being a single form in all the official languages, several modes of transmitting an arrest warrant and rules setting procedural deadlines that did not exist in the extradition context. On the whole the Member States have transposed these points quite well, even if they still impose differing requirements on points of detail that can in practice generate delays and even failed procedures.

Since the Framework Decision came into operation, the average time taken to execute a warrant is provisionally estimated to have fallen from more than nine months to 45 days. This does not include those frequent cases where the person consents to surrender, for which the average time taken is 18 days.

But the EAW is not only quicker and more efficient than the extradition procedure, it also fully respects fundamental individual guarantees. A judicial authority can always refuse to execute an arrest warrant if it sees that the procedure is vitiated by infringement of Article 6 of the Treaty on European Union, which secures fundamental rights. So far such cases have been mercifully few and far between.

All the Member States have transposed all the provisions of the Framework Decision relating to the rights of persons sought. The Framework Decision has strengthened the right to assistance from a lawyer and the right to offset the portion of the custodial sentence already served. More generally, as a result of the speed with which it is executed, the arrest warrant contributes to better observance of the "reasonable time limit". Through its effectiveness, in particular in obtaining the surrender of nationals of other Member States, it makes it easier to decide to release individuals provisionally irrespective of where they reside in the European Union.


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