693Extradition and the European Arrest Warrant
9.5. Extradition and the European Arrest Warrant
The protection of the EU's financial interests in a treaty with Switzerland
tailed ratification ofthat treaty by both the Community (as it then was) and its
ember States,253 and the EU's measures on mutual assistance in criminal matters
paralleled by EU legislation which sets out rules for administrative assistance
tax rnarters.P" It is striking that while mutual assistance or mutual recognition
regards the criminal law aspects of tax fraud is subject to the ordinary legislae
procedure after the entry into force of the Treaty of Lisbon, administrative
peration as regards taxation is still subject to unanimous voting.P"
Non-JHA EU legislation also has implications for disqualifications, in parular
as regards driving licences: Member States must refuse to issue a licence,
to recognize the validity ofa licence, if that licence was restricted, suspended,
withdrawn in another Member State.256Also, it might be questioned whether
easures concerning disqualifications which do not follow from a criminal conction
pronounced by a court would fall within the scope of the EU's criminal
competence.F' A Commission proposal regarding cross-border enforcement
sanctions relating to road safety was not agreed by the Council, due to a
spute as to whether it should have a legal base in EC law (as proposed by the
ommission) or the third pillar (as it then was).258
basic element of cooperation between States regarding criminal matters is the
ncept of extradition, which entails an agreement between States to send a pern
who is absent from a State pending a criminal trial or following the imposin
ofa criminal sentence there to that State, in order to serve the sentence or to
pear at the criminal trial. The basic international framework for extradition for
uropean States is the 1957 Council ofEurope Convention on extradition, which
.5.1. Extradition
A parallel treaty with Liechtenstein has also been proposed. See 9.2.5 above.
As regards tax recovery, see Dir 76/308 ([1976] OJ L 73/18), as consolidated following later
mendments by Dir 2008/55 ([2008] OJ L 150128), replaced by Dir 2010124 ([2010] OJ L 84/1) as
Jan 2012 (Art 28(1)). As regards administrative assistance, see, as regards direct taxation, Dir
([1977] OJ L 336/15), as amended by Dirs 2003/93 ([2003] OJ L 264/23) and 2004/56 ([2004]
157170), and see the proposed replacement Dir in COM (2009) 29, 2 Feb 2009. As regards VAT,
218/92 ([1992] OJ L 24/1), replaced by Reg 179812003 ([2003] OJ L 264/1)-and see the
p,,~P<J>eu recast Reg in COM (2009) 427, 18 Aug 2009, agreed by the Council in June 2010 (Council
28 May 2010). As regards excise duties, see Reg 207312004 ([2004] OJ L 359/1).
See Arts 113, 114(2), and 115 TFEU (former Arts 93, 95(2), and 94 EC), as interpreted in Cases
Commissiol1 " Council [2004] ECR 1-4829 and C-533/03 Commissiol1 v Council [2006]
1-1025.
Art 11(4) ofDir 2006/126 ([2006] OJ L 403/18), applicable from 19Jan 2009 (Art 18).
See further 9.7.3 below.
COM (2008) 151, 19 Mar 2008; see the progress report in Council doc 16634/08, 8 Dec 2008.
Criminal Law: Mutual Recognition and Criminal Procedure692
order not to leave the territory ofa Member State must be recognized by
Member State; this is problematic insofar as there is no express requirement t
the original order has to be consistent with EU free movement law. 245
The Court ofJustice has not yet been asked whether the period of residen
necessary for an EU citizen to obtain permanent residence in a Member Statec~
be accrued while in detention.i" although it has been asked whether rnovem
between Member States due to criminal proceedings affects the possibility of1
of that permanent residence.?? Finally, there is also a link between EU rules
social security and free movement and the transfer of sentenced persons.r"
Thirdly, as for other areas ofEU law, in the area ofEU sex discriminationla
a Member State accepted during litigation that it could not discriminate betwe
men and women in access to management, technical, and trainingjobs in priso
but the Commission agreed that Member States could discriminate on grou
ofsex for the job ofwarder and the Court agreed that they could discrirninatef
head warder posts.249 A national court presumed, no doubt correctly, that WOrn
could not be banned from jobs as social workers in prisons, and they surely cann
be banned from probation and parole work.250
There is also a link between other non-JHA EU law and EU mutual recog
tion measures, for when non-JHA EU legislation prohibits something, and
or all Member States give effect to that obligation by creating a criminal offen
or alternatively when a non-JHA EU measure directly requires that
States enforce a prohibition by criminal penalties.F" then the double criminal:
rule restricting extradition, to the extent that it still exists following the
tion ofEU mutual recognition measures.P? is automatically weakened.
245 Art 2(2)(c) ofthe proposal (n 225 above); the preamble only refers to free movement
son under threat (point 5). See, less problematically, the Framework Decisions on pre-trial
and probation and parole, which each provide for mutual recognition ofsuch orders (Art
4(1)(c) respectively) but refer to free movement rights in the preamble (see n 216 above).
2"6 Art 16 ofDir 2004/38 on EU citizens' movement rights ([2004] OJ L 229/35) is
issue. Note that in the Commission's view, 'time behind bars' should not normally
acquisition of permanent resident status if no links with the host Member State are
3.4 of the Communication on abuse of free movement rights, COM (2009) 313, 2
Even if this is correct in principle, the point must be clarified and is subject to the
proportionality: it is submitted that time 'behind bars' could only be discounted for the acquisitior
of permanent residence rights, if at all, if it resulted from a criminal conviction or (in
pre -trial detention) were regarded as 'time served' pursuant to that conviction. It is also
that the principle of proportionality also requires that time behind bars can only
ess ofacquiring permanent resident status, rather than terminateit. In other words, the
bars 'stops the clock' on the acquisition of that status so that, for example, a period
residence before imprisonment and two years' residence afterward qualifies the
for permanent residence status.
w Case C-145/09 Tsakouridis, pending (opinion of8 June 2010).
248 Case C-302/02 Effing [2005] ECR 1-552.
249 Case 318/86 Commission" France [1988] ECR 3359.
250 Case 14/83 Van Colsonand Kamal1l1 [1984] ECR 1891.
251 See 10.4.1 below. 252 See 9.5-9.7 below.
695Extradition and the European Arrest Warrant
fiscal offences exceptions, and the Terrorism Convention lists SIX 'terrorist'
offences which definitely shall not be classified as 'political offences' by signatory
States, and allows States to exclude other crimes from the scope ofthe exception.
However, parties may still refuse extradition if they suspect that the requesting
State is persecuting the accused, and can enter a reservation ifthey consider that a
particular offence falling within the list of 'terrorist offences' is indeed a political
offence.263
EEC Member States agreed an EPC Convention in 1979 attempting
to restrict the use of such reservations between each other, but this Convention
never entered into force and ratification attempts were abandoned.P"
Because many EU Member States had not ratified one of the Protocols to the
t957 Convention and/or had chosen ala carte from the provisions of the 1957
Convention and its Protocols, extradition between them was deemed unsatisfactory.
Therefore, the Schengen Convention and two EU Conventions of1995 and
96 aimed to restrict Member States' use of reservations and exceptions under
he Council of Europe measures.s" although the EU Conventions are not yet
nforce.P" Also a 1989 EPC Convention tried to speed up existing mechanisms
y allowing authorities to fax extradition requests.P" The Schengen provisions
bolished the fiscal offences exception for VAT, customs duties, and excise duties;
provided for requests to be sent to justice ministries; and allowed for speedy
extradition with the fugitive's consent. Also, the inclusion ofextradition requests
in-the Schengen Information System (SIS) facilitated the practical application
of the extradition rules.i'" The first EU extradition Convention provided for
detailed rules governing such speedy consented extradition, and then the second
Convention attempted to address a large number of barriers to extradition, in
particular: lowering the threshold for extradition to a six months' custodial sent~nce
in the requested State; weakening the double criminality rule as regards
organized crime; abolishing the 'political offence' exception, although Member
States could make a renewable reservation on this point; abolishing also the 'fiscal
().ffences' exception, although Member States could provide that the exception
W-as only abolished to the extent that the Schengen extradition required; requiring
Member States to permit extradition of their nationals to other Member
tates, although Member States could make a renewable reservation on this point;
.ting the Council ofEurope restrictions relating to lapse oftime, specialty, and
re-extradrtron (to other Member States); and integrating the EPC Convention on
requests into the text.
Art 13 ofthe Convention.
UK government Command Paper, Cm 7823 (1980).
Arts 59-66 (Schengen Convention); [1995] OJ C 78/1 (consented extradition); [1996] OJ C
extradition). See also the Schengen Executive Committee Declaration on extradiOJ
L 239/435). 266 See Appendix I for ratification details.
For the text, see: <http://www.asser.nlleurowarrant-webroot/documentslcms_eaw_12_1_
268 On the SIS, see 12.6.1.1 below.
Criminal Law: Mutual Recognition and Criminal Procedure694
all Member States have ratified, although only some Member States have
the First (1975) and Second (1978) Protocols to the Convention.P? In
all Member States have ratified the 1977 Council of Europe Convention
suppression ofterrorism, which affects both extradition and mutual assistance;
a 2003 Protocol to that Convention is not yet in force. 261
To implement extradition, the 'requesting' State (the State of the
tion, which wishes to assert jurisdiction over a fugitive to conduct a
prosecution, or to enforce a sentence or detention order) asks the
State (the 'host' State, which currently has the fugitive) to 'surrender'
tive to it, possibly after a provisional arrest to prevent flight. For this
the requested State holds a special extradition proceeding, the details
are left to national law.
Under the 1957 Council ofEurope Convention, extradition must be
wherever the fugitive has escaped from a custodial sentence ofover
detention, or is accused ofcommitting a crime which would be an
ing in at least one year's detention in both the requesting and requested
'double criminality' rule). However, there are a number ofimportant
to this. A State may limit its extradition obligations to a selected list
exclude a selected list from its obligations, and moreover no State has an
tion to extradite a person charged with a 'political offence' or where
be prejudice, punishment, or prosecution 'on account of the fugitive's
gion, nationality or political opinion'. Military offences are excluded
offences may be. Most important of all, States may choose to refuse extradit
of their own nationals, and many EU Member States initially chose this
Among other rules, lapse oftime to bring criminal proceedings in the re,qu,estir
or requested State prevents extradition.
A separate principle for the protection of the fugitive is the 'specialtv'
This rule prevents the requesting State from bringing other proceedings
the fugitive for offences other than that for which he or she was extradited,
where the requested State gives its consent or the fugitive remains in or
to the requested State. Furthermore, the fugitive cannot be sent to a
('re-extradited') by the requesting State without the requested State's
Requests under the Convention must be exchanged via embassies, but
ties can agree bilaterally on simpler rules for exchanges. In addition to thp "'~"'A'
options allowed in the text of the Convention, reservations to 'any provision
provisions' are allowed. 262
These extensive opt-ours and reservations led to the two subsequent Pn')tr,rr.
and to the Convention on the Suppression of Terrorism, which attempted
restrict their use. The Protocols, inter alia, narrow the 'political "t!-pncp'
259 ETS 24, 86, and 98 respectively. For details ofratification and signatures, see AppendixI,
260 ETS 90. 261 ETS 190. For details ofratification and signatures, see Appendix
262 Art 26(1) (emphasis added).
695Extradition and the European Arrest Warrant
fiscal offences exceptions, and the Terrorism Convention lists SIX 'terrorist'
offences which definitely shall not be classified as 'political offences' by signatory
States, and allows States to exclude other crimes from the scope ofthe exception.
However, parties may still refuse extradition if they suspect that the requesting
State is persecuting the accused, and can enter a reservation ifthey consider that a
particular offence falling within the list of 'terrorist offences' is indeed a political
offence.263
EEC Member States agreed an EPC Convention in 1979 attempting
to restrict the use of such reservations between each other, but this Convention
never entered into force and ratification attempts were abandoned.P"
Because many EU Member States had not ratified one of the Protocols to the
t957 Convention and/or had chosen ala carte from the provisions of the 1957
Convention and its Protocols, extradition between them was deemed unsatisfactory.
Therefore, the Schengen Convention and two EU Conventions of1995 and
96 aimed to restrict Member States' use of reservations and exceptions under
he Council of Europe measures.s" although the EU Conventions are not yet
nforce.P" Also a 1989 EPC Convention tried to speed up existing mechanisms
y allowing authorities to fax extradition requests.P" The Schengen provisions
bolished the fiscal offences exception for VAT, customs duties, and excise duties;
provided for requests to be sent to justice ministries; and allowed for speedy
extradition with the fugitive's consent. Also, the inclusion ofextradition requests
in-the Schengen Information System (SIS) facilitated the practical application
of the extradition rules.i'" The first EU extradition Convention provided for
detailed rules governing such speedy consented extradition, and then the second
Convention attempted to address a large number of barriers to extradition, in
particular: lowering the threshold for extradition to a six months' custodial sent~nce
in the requested State; weakening the double criminality rule as regards
organized crime; abolishing the 'political offence' exception, although Member
States could make a renewable reservation on this point; abolishing also the 'fiscal
().ffences' exception, although Member States could provide that the exception
W-as only abolished to the extent that the Schengen extradition required; requiring
Member States to permit extradition of their nationals to other Member
tates, although Member States could make a renewable reservation on this point;
.ting the Council ofEurope restrictions relating to lapse oftime, specialty, and
re-extradrtron (to other Member States); and integrating the EPC Convention on
requests into the text.
Art 13 ofthe Convention.
UK government Command Paper, Cm 7823 (1980).
Arts 59-66 (Schengen Convention); [1995] OJ C 78/1 (consented extradition); [1996] OJ C
extradition). See also the Schengen Executive Committee Declaration on extradiOJ
L 239/435). 266 See Appendix I for ratification details.
For the text, see: <http://www.asser.nlleurowarrant-webroot/documentslcms_eaw_12_1_
268 On the SIS, see 12.6.1.1 below.
Criminal Law: Mutual Recognition and Criminal Procedure694
all Member States have ratified, although only some Member States have
the First (1975) and Second (1978) Protocols to the Convention.P? In
all Member States have ratified the 1977 Council of Europe Convention
suppression ofterrorism, which affects both extradition and mutual assistance;
a 2003 Protocol to that Convention is not yet in force. 261
To implement extradition, the 'requesting' State (the State of the
tion, which wishes to assert jurisdiction over a fugitive to conduct a
prosecution, or to enforce a sentence or detention order) asks the
State (the 'host' State, which currently has the fugitive) to 'surrender'
tive to it, possibly after a provisional arrest to prevent flight. For this
the requested State holds a special extradition proceeding, the details
are left to national law.
Under the 1957 Council ofEurope Convention, extradition must be
wherever the fugitive has escaped from a custodial sentence ofover
detention, or is accused ofcommitting a crime which would be an
ing in at least one year's detention in both the requesting and requested
'double criminality' rule). However, there are a number ofimportant
to this. A State may limit its extradition obligations to a selected list
exclude a selected list from its obligations, and moreover no State has an
tion to extradite a person charged with a 'political offence' or where
be prejudice, punishment, or prosecution 'on account of the fugitive's
gion, nationality or political opinion'. Military offences are excluded
offences may be. Most important of all, States may choose to refuse extradit
of their own nationals, and many EU Member States initially chose this
Among other rules, lapse oftime to bring criminal proceedings in the re,qu,estir
or requested State prevents extradition.
A separate principle for the protection of the fugitive is the 'specialtv'
This rule prevents the requesting State from bringing other proceedings
the fugitive for offences other than that for which he or she was extradited,
where the requested State gives its consent or the fugitive remains in or
to the requested State. Furthermore, the fugitive cannot be sent to a
('re-extradited') by the requesting State without the requested State's
Requests under the Convention must be exchanged via embassies, but
ties can agree bilaterally on simpler rules for exchanges. In addition to thp "'~"'A'
options allowed in the text of the Convention, reservations to 'any provision
provisions' are allowed. 262
These extensive opt-ours and reservations led to the two subsequent Pn')tr,rr.
and to the Convention on the Suppression of Terrorism, which attempted
restrict their use. The Protocols, inter alia, narrow the 'political "t!-pncp'
259 ETS 24, 86, and 98 respectively. For details ofratification and signatures, see AppendixI,
260 ETS 90. 261 ETS 190. For details ofratification and signatures, see Appendix
262 Art 26(1) (emphasis added).
9.5.2. European Arrest Warrant
697Extradition and the European Arrest Warrant
Art 32. The Court ofJustice has confirmed that in that case, Member States are still free to
the EU's extradition Conventions in order to simplify extradition somewhat as regards such
judgment in Santesteban Goicoechea (n 271 above).
Art 28(3) of the former Convention; Art 9 of the latter Convention (as amended by the
Council doe 12413/03, 11 Sep 2003, adopted by the JHA Council, 3 act 2003.
judgments in: Advocate" voor de Were/d, para 28; Koslowski, para 31; Leymallll, para 42; and
Wc"ze'nbl~rg, para 56 (all n 271 above). 2HO Art 1(2).
Art 1(1) and clause 5 of the preamble. 282 Art 2(1).
Art 21 of that Framework Decision ([2009] OJ L 294120), applicable from 1 Dec 2012 (Art
On the substance, see 9.6.3 below.
Case C-288/05 Kretzinger [2007] ECR 1-6441. On the substance, see 11.8 below.
Art 2(2).
have limited the temporal application of the Framework Decision.I" The
,",\JUJlIUll ofEurope extradition Convention (and the Council ofEurope's terrorConvention,
when the 2003 Protocol to that Convention enters into force)
perrrnrs States to replace the application of these Conventions between themif
they agree a uniform law of extradition.277 So the (EU) Council adopted
conclusions urging Member States to declare officially the non-applicability of
Council of Europe measures between themselves.F" More fundamentally,
Court ofJustice has ruled that the purpose of the Framework Decision is to
the traditional extradition system with a system ofsurrender on the basis
EAW.279
The basic rule is that EAWs must be executed 'on the basis of the principle of
recognition and in accordance with the provisions of [the] Framework
Decision',280 An EAW can be issued whether a person is wanted for trial or whether
has already been convicted and escaped application of a custodial senor
detention order.?" It may be issued for any act punishable in the issuing
(the Member State issuing the arrest warrant) by a period of at least twelve
111'JW.H' or, where a sentence has already been passed, for at least four months.f"
threshold will in principle be waived in the specific circumstances of the
application of the Framework Decision on the recognition of pre-trial superviorders,
although Member States have the option of refusing to waive that
threshold.r" It should also be noted that the mere possibility of issuing an EAW
order to enforce a sentence against a person resident in another Member State
not extinguish the application of the 'enforcement condition' which applies
Schengen double jeopardy rules.f"
central provision of the Framework Decision abolishes the principle of
criminality, where the warrant has been issued for one ofthe standard list
otthirtv-two offences 'as defined by the law ofthe issuing Member State', where
an offence could be subject to a sentence ofat least three years.i" In fact, the
contains more than thirty-two offences, since some points cover more than
offence. For acts not on the list, surrender of the person 'may' be subject to
condition of double criminality in the executing State (the State enforcing
Criminal Law: Mutual Recognition and Criminal Procedure696
269 For details, see 11.5 below. 270 See the provisions discussed in 10.6 below.
271 Art 34(1) ([2002] OJ L 190/1). All references in this section-are to this Framework
unless otherwise indicated. On the EAW, see N Keijzer and E van Sliedregt, eds,
Arrest Warral1t in practice (Asser, 2009); E Guild and L Marin, Still not resolved? Constitutional
the European Arrest Warrant (Wolf, 2009); R Blextoon, ed, Handbook on the European
(Asser, 2005); S Alegre and M Leaf, European Arrest Warrant: A solution ahead of its
2003); and J Wouters and F Naert, 'Of arrest warrants, terrorist offences and extradition
appraisal of the EU's main criminal law measures against terrorism after" 11 September".'
41 CMLRev 909.
272 On validity, see Case C-303/05 Advowtell voor de Wereld [2007] ECR 1-3633.
tion, see Cases: C-66/08 Koslowski [2008] ECR 1-6041; C-296/08 PPU Santesteban Goicoe'chea[2
ECR 1-6307; C-388/08 PPU Levmann and Pustovarov [2008] ECR l-8993; L-l,o.J/C'O
[2009] ECR 1-9621; C-261109 Mantello, pending (opinion 00 Sep 2010); C-306/09
(opinion of6July 2010); C-I05/1O PPU Gataev, withdrawn; and C-264/10 Kita,
273 Advowten voor de Were/d, ibid. See 2.2.2.2 above. This reasoning is presumably
mutandis to a number ofother mutual recognition measures which replace or repeal the
ing provisions of Conventions: see 9.6 and 9.7 below.
274 Art 31(1). Member States are free to retain or adopt treaties which further simnl ifv rhe
cation of the Framework Decision (Art 31(2». The Court ofJustice has confirmed
provision does not mean that Member States can keep applying the Council or "'UWlJ","'C),
measures: judgment in Santesteban Coicoechea (n 271 above). This interpretation presumably ap]
mutatis mutandis to other mutual recognition measures with equivalent provisions.
275 France, Italy, and Austria have applied this option (see declarations in
Also, Austria could refuse to extradite its own nationals until the end of2008
ity applied (Art 33(1».
Extradition between Member States
Framework Decision establishing the European Arrest Warrant
Framework Decision was adopted in June 2002, and Member States were
to apply it by 31 December 2003. 271
It has attracted a significant arnount
law from the Court ofJustice: a reference on its validity and eight references
its interpretarion.F" First of all, as to the legal form of the Framework LJ,;'-l"lVj
the Court ofJustice confirmed that the Council could replace Conventions
means of a Framework Decision.F"
As for the substance of the Framework Decision, it has replaced
responding provisions of the prior EU, EPC, and Council of .LU'lVIJ<::
ures.?" However Member States retained the option to apply earlier extqc.H'ti,
rules as regards acts committed before a certain dateY5 In that case,
measures continue to apply in part as regards requests to those Member
Furthermore, there are specific extradition rules in a number ofEU cnml]'la)
law measures, in particular applying an 'extradite or prosecute' principle.
the rules on sentencing in several EU measures specifically require
least some cases, the penalties should be stringent enough to give rise to
extradition proceedings.270
9.5.2. European Arrest Warrant
697Extradition and the European Arrest Warrant
Art 32. The Court ofJustice has confirmed that in that case, Member States are still free to
the EU's extradition Conventions in order to simplify extradition somewhat as regards such
judgment in Santesteban Goicoechea (n 271 above).
Art 28(3) of the former Convention; Art 9 of the latter Convention (as amended by the
Council doe 12413/03, 11 Sep 2003, adopted by the JHA Council, 3 act 2003.
judgments in: Advocate" voor de Were/d, para 28; Koslowski, para 31; Leymallll, para 42; and
Wc"ze'nbl~rg, para 56 (all n 271 above). 2HO Art 1(2).
Art 1(1) and clause 5 of the preamble. 282 Art 2(1).
Art 21 of that Framework Decision ([2009] OJ L 294120), applicable from 1 Dec 2012 (Art
On the substance, see 9.6.3 below.
Case C-288/05 Kretzinger [2007] ECR 1-6441. On the substance, see 11.8 below.
Art 2(2).
have limited the temporal application of the Framework Decision.I" The
,",\JUJlIUll ofEurope extradition Convention (and the Council ofEurope's terrorConvention,
when the 2003 Protocol to that Convention enters into force)
perrrnrs States to replace the application of these Conventions between themif
they agree a uniform law of extradition.277 So the (EU) Council adopted
conclusions urging Member States to declare officially the non-applicability of
Council of Europe measures between themselves.F" More fundamentally,
Court ofJustice has ruled that the purpose of the Framework Decision is to
the traditional extradition system with a system ofsurrender on the basis
EAW.279
The basic rule is that EAWs must be executed 'on the basis of the principle of
recognition and in accordance with the provisions of [the] Framework
Decision',280 An EAW can be issued whether a person is wanted for trial or whether
has already been convicted and escaped application of a custodial senor
detention order.?" It may be issued for any act punishable in the issuing
(the Member State issuing the arrest warrant) by a period of at least twelve
111'JW.H' or, where a sentence has already been passed, for at least four months.f"
threshold will in principle be waived in the specific circumstances of the
application of the Framework Decision on the recognition of pre-trial superviorders,
although Member States have the option of refusing to waive that
threshold.r" It should also be noted that the mere possibility of issuing an EAW
order to enforce a sentence against a person resident in another Member State
not extinguish the application of the 'enforcement condition' which applies
Schengen double jeopardy rules.f"
central provision of the Framework Decision abolishes the principle of
criminality, where the warrant has been issued for one ofthe standard list
otthirtv-two offences 'as defined by the law ofthe issuing Member State', where
an offence could be subject to a sentence ofat least three years.i" In fact, the
contains more than thirty-two offences, since some points cover more than
offence. For acts not on the list, surrender of the person 'may' be subject to
condition of double criminality in the executing State (the State enforcing
Criminal Law: Mutual Recognition and Criminal Procedure696
269 For details, see 11.5 below. 270 See the provisions discussed in 10.6 below.
271 Art 34(1) ([2002] OJ L 190/1). All references in this section-are to this Framework
unless otherwise indicated. On the EAW, see N Keijzer and E van Sliedregt, eds,
Arrest Warral1t in practice (Asser, 2009); E Guild and L Marin, Still not resolved? Constitutional
the European Arrest Warrant (Wolf, 2009); R Blextoon, ed, Handbook on the European
(Asser, 2005); S Alegre and M Leaf, European Arrest Warrant: A solution ahead of its
2003); and J Wouters and F Naert, 'Of arrest warrants, terrorist offences and extradition
appraisal of the EU's main criminal law measures against terrorism after" 11 September".'
41 CMLRev 909.
272 On validity, see Case C-303/05 Advowtell voor de Wereld [2007] ECR 1-3633.
tion, see Cases: C-66/08 Koslowski [2008] ECR 1-6041; C-296/08 PPU Santesteban Goicoe'chea[2
ECR 1-6307; C-388/08 PPU Levmann and Pustovarov [2008] ECR l-8993; L-l,o.J/C'O
[2009] ECR 1-9621; C-261109 Mantello, pending (opinion 00 Sep 2010); C-306/09
(opinion of6July 2010); C-I05/1O PPU Gataev, withdrawn; and C-264/10 Kita,
273 Advowten voor de Were/d, ibid. See 2.2.2.2 above. This reasoning is presumably
mutandis to a number ofother mutual recognition measures which replace or repeal the
ing provisions of Conventions: see 9.6 and 9.7 below.
274 Art 31(1). Member States are free to retain or adopt treaties which further simnl ifv rhe
cation of the Framework Decision (Art 31(2». The Court ofJustice has confirmed
provision does not mean that Member States can keep applying the Council or "'UWlJ","'C),
measures: judgment in Santesteban Coicoechea (n 271 above). This interpretation presumably ap]
mutatis mutandis to other mutual recognition measures with equivalent provisions.
275 France, Italy, and Austria have applied this option (see declarations in
Also, Austria could refuse to extradite its own nationals until the end of2008
ity applied (Art 33(1».
Extradition between Member States
Framework Decision establishing the European Arrest Warrant
Framework Decision was adopted in June 2002, and Member States were
to apply it by 31 December 2003. 271
It has attracted a significant arnount
law from the Court ofJustice: a reference on its validity and eight references
its interpretarion.F" First of all, as to the legal form of the Framework LJ,;'-l"lVj
the Court ofJustice confirmed that the Council could replace Conventions
means of a Framework Decision.F"
As for the substance of the Framework Decision, it has replaced
responding provisions of the prior EU, EPC, and Council of .LU'lVIJ<::
ures.?" However Member States retained the option to apply earlier extqc.H'ti,
rules as regards acts committed before a certain dateY5 In that case,
measures continue to apply in part as regards requests to those Member
Furthermore, there are specific extradition rules in a number ofEU cnml]'la)
law measures, in particular applying an 'extradite or prosecute' principle.
the rules on sentencing in several EU measures specifically require
least some cases, the penalties should be stringent enough to give rise to
extradition proceedings.270
699Extradition and the European Arrest Warrant
Art 3. Note that this is the only mutual recognition measure which provides for mandatory
for non-execution. On the interpretation of the double jeopardy exception, see Case
, ._,'.h "'11'1 Mantella, pending (opinion of 7 Sep 2010). As with most other EU mutual recognition
measures, the question arises as to the relationship between this specific exception and the general
on double jeopardy set out in Arts 54-58 ofthe Schengen Convention ([2000] OJ L 239). On
issue, see 11.8 below. The Mantello opinion argues that at least the interpretation of the 'same
in Art 3(2 )ofthe Framework Decision must be identical to the interpretation ofthe Schengen
295 Art 4.
On this point, it should be noted that the traditional 'extradite or prosecute' rule found in
Framework Decisions on substantive criminal law (see 11.5 below) is now irrelevant where an
issued, since the EAW Framework Decision does not permit a refusal on the grounds that the
executing State is planning to prosecute the person concerned. On the coordination ofprosecutions
cases, see 11.6 below.
Case C-467/04 Gasparini[2006] ECR 1-9199, para 31.
Art 4(6). See also the discussion ofArt 5(3) below.
See Art 25 of that Framework Decision ([2008] OJ L 327/27), applicable from 5 Dec 2011
fA-let ;~9(1». On the substance, see 9.7.1.2 below. On the relationship between the EAW and the rules
transfer ofsentenced persons in the meantime, see the pending Kita case (n 271 above)
See n 271 above, paras 36-54.
grounds for mandatory non-execution of the warrant: an amnesty in the executState,
if that State had jurisdiction to prosecute the offence under its national
where the double jeopardy rule applies; and where the fugitive is below the
of criminal responsibility in the executing State.F'" Secondly, there are seven
grounds for optional nori-executionr'" residual application of the double crimirule;
a pending prosecution in the executing Member State for the same
(lispendens);296 a decision not to prosecute, or a final sentence, in the executState,
which prevents further proceedings; time-barring of the action in the
executing Member State, ifit has jurisdiction; a prior judgment for the same acts
third State, ifthat judgment has been enforced; the executing Member State's
agreement to enforce the sentence itself, against one ofits nationals or residents or
staying there, where the EAW was issued for the purpose of enforcing a
sentence; or where the executing Member State either regards the acts as taking
within its territory or would not exercise extraterritorial jurisdiction over
which took place outside the issuing State's territory.
The Court ofJustice has clarified that the exception concerning time-barring
applies where there was no final judgment; a final judgment dismissing a
pr<)se:cuticm due to time-barring falls instead within the scope of the mandatory
jeopardy exception.F" Furthermore, the exception relating to possible
execution of a sentence against nationals, residents, or persons staying in the
executing State has attracted a number of references to the Court ofjustice.i"
also interact with the later Framework Decision on the recognition of
custodial sentences, once the latter measure is implemented by Member Stares."?"
of all, in its Kozlowski judgment, the Court ofJustice interpreted the part
the exception relating to persons 'staying in' the executing State.i''" ruling
it could not apply to all persons temporarily located in the executing State,
Criminal Law: Mutual Recognition and Criminal Procedure
the arrest warrantj.f" with the consequence that there will still be an obligation
to establish whether the act in question would be a crime in both States.
The validity ofthis partial abolition ofdual criminality was challenged
the national courts, on the grounds that it breached the principle of the
ofcriminal proceedings and the principles ofequality and non-discrimination."
However, according to the Court ofJustice, while these principles
of the general principles of EU law, and were moreover reaffirmed in the
Charter of Fundamental Rights,288 the principle of legality was not infring
because it was for the issuing Member State to comply with it when it defin
the offences which it sought to punish or prosecute by means of executing
EAW. 289 As for the principles of equality and non-discrimination, the Co
held that abolishing the dual criminality rule only as regards thirty-two speci
offences was not a breach of those principles, since 'the Council was able to(o
the view, on the basis of the principle of mutual recognition and in the light
the high degree oftrust and solidarity between the Member States, that, whet
by reason of their inherent nature or by reason of the punishment incurred
maximum of at least three years, the categories of offences in question featu
among those the seriousness ofwhich in terms ofadversely affecting public org
and public safety justifies dispensing with the verification of double crirninalit
and so any distinction between persons convicted or accused of those crimes
persons convicted or accused of other crimes was justified, even if thoset
groups ofpersons were comparable.P" Also, the lack ofprecision in the definit~
of the offences was not problematic on this ground either, since the Framew
Decision did not have the purpose of harmonizing substantive criminal lawa
the Treaty (as it then was) did not make application of the Framework Decisi
conditional on such harrnonization.F" This reasoning is presumably valid mut
mutandis to the abolition of the dual criminality principle in a number ofot
mutual recognition measures.F?
There are three categories of grounds for which. the execution of anE
could be refused or delayed. The Court ofJustice has ruled that these are theio
grounds which could justify non-execution ofan EAW.293
Firstly, there
286 Art 2(4). 287 Advocatenvoorde Wereld (n 271 above). See further 9.3.5 above.
288 Paras 45-47 ofthe judgment, ibid. 289 Paras 48-54 of the jndgment, ibid.
290 Paras 57-58 ofthe jndgment, ibid.
291 Para 59 ofthe jndgment, ibid. The Court referred to its case law on the uV'~U'C j'cVl'd""y
on which see 11.8 below. Arguably the subsequent wording ofthe Treaty (Art 82
the mutual recognition principle even more strongly (see 9.2.3 above).
292 See 9.6 and 9.7 below. However, note that the Framework Decision on
of financial penalties abolishes dual criminality for a longer list of crimes (9.7.1.1
proposed Directive establishing the European Investigation Order would abolish
entirely (9.6.1.3 below). The Advocatenvoorde Wereldjudgment cannot automatically
analogy to those measures.
293 See the judgments in: Koslowski,para 43; Leymann, para 51; and Wolzenburg,
above).
698
699Extradition and the European Arrest Warrant
Art 3. Note that this is the only mutual recognition measure which provides for mandatory
for non-execution. On the interpretation of the double jeopardy exception, see Case
, ._,'.h "'11'1 Mantella, pending (opinion of 7 Sep 2010). As with most other EU mutual recognition
measures, the question arises as to the relationship between this specific exception and the general
on double jeopardy set out in Arts 54-58 ofthe Schengen Convention ([2000] OJ L 239). On
issue, see 11.8 below. The Mantello opinion argues that at least the interpretation of the 'same
in Art 3(2 )ofthe Framework Decision must be identical to the interpretation ofthe Schengen
295 Art 4.
On this point, it should be noted that the traditional 'extradite or prosecute' rule found in
Framework Decisions on substantive criminal law (see 11.5 below) is now irrelevant where an
issued, since the EAW Framework Decision does not permit a refusal on the grounds that the
executing State is planning to prosecute the person concerned. On the coordination ofprosecutions
cases, see 11.6 below.
Case C-467/04 Gasparini[2006] ECR 1-9199, para 31.
Art 4(6). See also the discussion ofArt 5(3) below.
See Art 25 of that Framework Decision ([2008] OJ L 327/27), applicable from 5 Dec 2011
fA-let ;~9(1». On the substance, see 9.7.1.2 below. On the relationship between the EAW and the rules
transfer ofsentenced persons in the meantime, see the pending Kita case (n 271 above)
See n 271 above, paras 36-54.
grounds for mandatory non-execution of the warrant: an amnesty in the executState,
if that State had jurisdiction to prosecute the offence under its national
where the double jeopardy rule applies; and where the fugitive is below the
of criminal responsibility in the executing State.F'" Secondly, there are seven
grounds for optional nori-executionr'" residual application of the double crimirule;
a pending prosecution in the executing Member State for the same
(lispendens);296 a decision not to prosecute, or a final sentence, in the executState,
which prevents further proceedings; time-barring of the action in the
executing Member State, ifit has jurisdiction; a prior judgment for the same acts
third State, ifthat judgment has been enforced; the executing Member State's
agreement to enforce the sentence itself, against one ofits nationals or residents or
staying there, where the EAW was issued for the purpose of enforcing a
sentence; or where the executing Member State either regards the acts as taking
within its territory or would not exercise extraterritorial jurisdiction over
which took place outside the issuing State's territory.
The Court ofJustice has clarified that the exception concerning time-barring
applies where there was no final judgment; a final judgment dismissing a
pr<)se:cuticm due to time-barring falls instead within the scope of the mandatory
jeopardy exception.F" Furthermore, the exception relating to possible
execution of a sentence against nationals, residents, or persons staying in the
executing State has attracted a number of references to the Court ofjustice.i"
also interact with the later Framework Decision on the recognition of
custodial sentences, once the latter measure is implemented by Member Stares."?"
of all, in its Kozlowski judgment, the Court ofJustice interpreted the part
the exception relating to persons 'staying in' the executing State.i''" ruling
it could not apply to all persons temporarily located in the executing State,
Criminal Law: Mutual Recognition and Criminal Procedure
the arrest warrantj.f" with the consequence that there will still be an obligation
to establish whether the act in question would be a crime in both States.
The validity ofthis partial abolition ofdual criminality was challenged
the national courts, on the grounds that it breached the principle of the
ofcriminal proceedings and the principles ofequality and non-discrimination."
However, according to the Court ofJustice, while these principles
of the general principles of EU law, and were moreover reaffirmed in the
Charter of Fundamental Rights,288 the principle of legality was not infring
because it was for the issuing Member State to comply with it when it defin
the offences which it sought to punish or prosecute by means of executing
EAW. 289 As for the principles of equality and non-discrimination, the Co
held that abolishing the dual criminality rule only as regards thirty-two speci
offences was not a breach of those principles, since 'the Council was able to(o
the view, on the basis of the principle of mutual recognition and in the light
the high degree oftrust and solidarity between the Member States, that, whet
by reason of their inherent nature or by reason of the punishment incurred
maximum of at least three years, the categories of offences in question featu
among those the seriousness ofwhich in terms ofadversely affecting public org
and public safety justifies dispensing with the verification of double crirninalit
and so any distinction between persons convicted or accused of those crimes
persons convicted or accused of other crimes was justified, even if thoset
groups ofpersons were comparable.P" Also, the lack ofprecision in the definit~
of the offences was not problematic on this ground either, since the Framew
Decision did not have the purpose of harmonizing substantive criminal lawa
the Treaty (as it then was) did not make application of the Framework Decisi
conditional on such harrnonization.F" This reasoning is presumably valid mut
mutandis to the abolition of the dual criminality principle in a number ofot
mutual recognition measures.F?
There are three categories of grounds for which. the execution of anE
could be refused or delayed. The Court ofJustice has ruled that these are theio
grounds which could justify non-execution ofan EAW.293
Firstly, there
286 Art 2(4). 287 Advocatenvoorde Wereld (n 271 above). See further 9.3.5 above.
288 Paras 45-47 ofthe judgment, ibid. 289 Paras 48-54 of the jndgment, ibid.
290 Paras 57-58 ofthe jndgment, ibid.
291 Para 59 ofthe jndgment, ibid. The Court referred to its case law on the uV'~U'C j'cVl'd""y
on which see 11.8 below. Arguably the subsequent wording ofthe Treaty (Art 82
the mutual recognition principle even more strongly (see 9.2.3 above).
292 See 9.6 and 9.7 below. However, note that the Framework Decision on
of financial penalties abolishes dual criminality for a longer list of crimes (9.7.1.1
proposed Directive establishing the European Investigation Order would abolish
entirely (9.6.1.3 below). The Advocatenvoorde Wereldjudgment cannot automatically
analogy to those measures.
293 See the judgments in: Koslowski,para 43; Leymann, para 51; and Wolzenburg,
above).
698
In order to examine whether those 'certain connections' exist:
701Extradition and the European Arrest Warrant
9.4 above. There is a specific provision on this point in Art 7(2) of the asylum procedures
2005/85, [2005] OJ L 326/13), which was the subject of the withdrawn Gataev case. See
8(2) of the proposed recast asylum procedures Dir (CaM (2009) 551, 21 act 2009).
the Court's approach in Wolzenburg should apply by analogy to ED citizens' thirdnational
family members who have obtained permanent residence status pursuant to ED
movement law (6.4.1 above), as well as those who obtain status identical or comparable to
hperrnanent residence pursuant to the EEA or the ED-Turkey association agreement (see 6.4.3
On the general question ofequal treatment ofthird-country nationals, see 3.4.3 above. On
migration law links, see the opinion in Koslowski (n 271 above).
the position of dual citizens, see 9.4 above.
the Advocate General's opinions in Kozlowski (para 74) and Wolzenburg (paras 60-63),
of reintegration into society is not the only basis for a limitation of the exception
4(6), in light of the optional restrictions which the Court accepted on the scope of the
exception in the Wolzenburgjudgment. So the Dutch rules limiting the Art 4(6) exception
n 271 above.
the broader interaction between the mutual recognition principle and ED free movement
9.4 above. On the substance of the concept of permanent residence in ED free movement
6.4.1 above. The Court also made a link with an optional provision of the Framework
on recognition of custodial penalties, which applies the same five-year rule: see 9.7.1.2
Subsequently, in the Wolzenburg judgment, the Court ruled that Member
States retain a discretion to permit only some categories of nationals, residents,
pr persons staying on the territory to benefit from the possibility of refusing to
execute a warranr''" on the grounds that allowing a choice for Member States to
l,imit the scope of the exception would further the underlying objectives of the
framework Decision by bringing more people within its scope. However, this
iscretion was constrained by the principle ofequal treatment ofEU citizens who
ere nationals of other Member States, which meant that Member States at the
ery least had to treat EU citizens who had permanent residence status in that
tate the same as that State treated its own citizens.i''" EU citizens who had not yet
btained that status could be treated differently (ie not benefiting from the excepon)
because they were not in a similar position to nationals of the host State,
regards reintegration in the society of that State after serving their sentence,
nee they were not highly integrated into that State in the first place. The Court
iclnot address the question of whether EU free movement or immigration law
ight be a potential barrier as such to execution of an arrest warrant, ie because
e offence that the person is charged with or convicted of is not serious enough
bstantively to justify removal from the territory.305
Furthermore, the Court did not address the question ofwhich third-country
~tionals, if any, could benefit from the same principle.Y" or the position of
citizens.r'" Presumably the Court's ruling, by analogy, means that Member
are free to set other conditions restricting the scope of this ground for
of execution of an EAW, or the other optional grounds for refusal of
xecution in this Framework Decision or other mutual recognition measures,
to the equality principle and also human rights obligations (on which,
discussion further belowj.''" On this point, it should be emphasized
Criminal Law: Mutual Recognition and Criminal Procedure700
301 For further suggestions as to the interpretation of these concepts, see the Wolzel~burJ!
paras 53-70.
302 As the opinion in Koslowski convincingly argues (paras 159-172), reintegration
cuting State's society is not feasible if the person will be expelled, but also an]1 expulsion mustcor
with ED free movement or immigration law. See also the Wolzenburg opinion, paras
... the terms 'resident' and 'staying' cover, respectively, the situations in which the
who is the subject of a European arrest warrant has either established his actual
residence in the executing Member State or has acquired, following a stable
presence in that State, certain connections with that State which are of a similar
to those resulting from residence.
but equally could apply to a person staying there for a period of time
established certain connections there. Moreover, the definitions of ,residlent'
'staying in' had an EU-wide autonomous meaning not dependent on the
the Member States. In order to apply any of the three categories of exceptic
Member States 'must assess whether there is a legitimate interest which
tify the sentence imposed in the issuing Member State being executed on
ritory of the executing Member State', a condition which does not in fact
in the Framework Decision. It followed that this exception 'has in particular
objective ofenabling the executingjudicial authority to give particular
the possibility of increasing the requested person's chances of remtegratmg
society when the sentence imposed on him expires', and therefore that:
Applying these principles, the Court stated that interruptions of stay
compliance with immigration law (ie the immigration law aspects ofthe
status) could not lead automatically to the conclusion that the
was not 'staying in' the Member State, but could be 'of relevance'
ing that issue. On the other hand, the commission of crimes in that
detention in that State following a conviction (ie the criminal law
person's status) were not relevant at all for deciding whether that
ing' there-although they could be relevant for applying the second
assessment, ie deciding whether there was a 'legitimate interest' in not
the EAW in the particular case. The Court did not offer any indication
to interpret the concept of the 'actual state of residence' (ie the
pret the 'resident' requiremenn.''" Nor did the Court address the question
whether the person's future immigration status (ie whether the person
or could or would be, validly expelled as distinct from surrendered)
to the application of the reintegration requirernent.P'"
... it is necessary to make an overall assessment ofvarious objective factors characteris
the situation of that person, which include, in particular, the length, nature
tions of his presence and the family and economic connections which he
executing Member State.
In order to examine whether those 'certain connections' exist:
701Extradition and the European Arrest Warrant
9.4 above. There is a specific provision on this point in Art 7(2) of the asylum procedures
2005/85, [2005] OJ L 326/13), which was the subject of the withdrawn Gataev case. See
8(2) of the proposed recast asylum procedures Dir (CaM (2009) 551, 21 act 2009).
the Court's approach in Wolzenburg should apply by analogy to ED citizens' thirdnational
family members who have obtained permanent residence status pursuant to ED
movement law (6.4.1 above), as well as those who obtain status identical or comparable to
hperrnanent residence pursuant to the EEA or the ED-Turkey association agreement (see 6.4.3
On the general question ofequal treatment ofthird-country nationals, see 3.4.3 above. On
migration law links, see the opinion in Koslowski (n 271 above).
the position of dual citizens, see 9.4 above.
the Advocate General's opinions in Kozlowski (para 74) and Wolzenburg (paras 60-63),
of reintegration into society is not the only basis for a limitation of the exception
4(6), in light of the optional restrictions which the Court accepted on the scope of the
exception in the Wolzenburgjudgment. So the Dutch rules limiting the Art 4(6) exception
n 271 above.
the broader interaction between the mutual recognition principle and ED free movement
9.4 above. On the substance of the concept of permanent residence in ED free movement
6.4.1 above. The Court also made a link with an optional provision of the Framework
on recognition of custodial penalties, which applies the same five-year rule: see 9.7.1.2
Subsequently, in the Wolzenburg judgment, the Court ruled that Member
States retain a discretion to permit only some categories of nationals, residents,
pr persons staying on the territory to benefit from the possibility of refusing to
execute a warranr''" on the grounds that allowing a choice for Member States to
l,imit the scope of the exception would further the underlying objectives of the
framework Decision by bringing more people within its scope. However, this
iscretion was constrained by the principle ofequal treatment ofEU citizens who
ere nationals of other Member States, which meant that Member States at the
ery least had to treat EU citizens who had permanent residence status in that
tate the same as that State treated its own citizens.i''" EU citizens who had not yet
btained that status could be treated differently (ie not benefiting from the excepon)
because they were not in a similar position to nationals of the host State,
regards reintegration in the society of that State after serving their sentence,
nee they were not highly integrated into that State in the first place. The Court
iclnot address the question of whether EU free movement or immigration law
ight be a potential barrier as such to execution of an arrest warrant, ie because
e offence that the person is charged with or convicted of is not serious enough
bstantively to justify removal from the territory.305
Furthermore, the Court did not address the question ofwhich third-country
~tionals, if any, could benefit from the same principle.Y" or the position of
citizens.r'" Presumably the Court's ruling, by analogy, means that Member
are free to set other conditions restricting the scope of this ground for
of execution of an EAW, or the other optional grounds for refusal of
xecution in this Framework Decision or other mutual recognition measures,
to the equality principle and also human rights obligations (on which,
discussion further belowj.''" On this point, it should be emphasized
Criminal Law: Mutual Recognition and Criminal Procedure700
301 For further suggestions as to the interpretation of these concepts, see the Wolzel~burJ!
paras 53-70.
302 As the opinion in Koslowski convincingly argues (paras 159-172), reintegration
cuting State's society is not feasible if the person will be expelled, but also an]1 expulsion mustcor
with ED free movement or immigration law. See also the Wolzenburg opinion, paras
... the terms 'resident' and 'staying' cover, respectively, the situations in which the
who is the subject of a European arrest warrant has either established his actual
residence in the executing Member State or has acquired, following a stable
presence in that State, certain connections with that State which are of a similar
to those resulting from residence.
but equally could apply to a person staying there for a period of time
established certain connections there. Moreover, the definitions of ,residlent'
'staying in' had an EU-wide autonomous meaning not dependent on the
the Member States. In order to apply any of the three categories of exceptic
Member States 'must assess whether there is a legitimate interest which
tify the sentence imposed in the issuing Member State being executed on
ritory of the executing Member State', a condition which does not in fact
in the Framework Decision. It followed that this exception 'has in particular
objective ofenabling the executingjudicial authority to give particular
the possibility of increasing the requested person's chances of remtegratmg
society when the sentence imposed on him expires', and therefore that:
Applying these principles, the Court stated that interruptions of stay
compliance with immigration law (ie the immigration law aspects ofthe
status) could not lead automatically to the conclusion that the
was not 'staying in' the Member State, but could be 'of relevance'
ing that issue. On the other hand, the commission of crimes in that
detention in that State following a conviction (ie the criminal law
person's status) were not relevant at all for deciding whether that
ing' there-although they could be relevant for applying the second
assessment, ie deciding whether there was a 'legitimate interest' in not
the EAW in the particular case. The Court did not offer any indication
to interpret the concept of the 'actual state of residence' (ie the
pret the 'resident' requiremenn.''" Nor did the Court address the question
whether the person's future immigration status (ie whether the person
or could or would be, validly expelled as distinct from surrendered)
to the application of the reintegration requirernent.P'"
... it is necessary to make an overall assessment ofvarious objective factors characteris
the situation of that person, which include, in particular, the length, nature
tions of his presence and the family and economic connections which he
executing Member State.
703Extradition and the European Arrest Warrant
4(6), discussed above. The requirement ofidentical interpretation is bolstered by the referto
both provisions in the Framework Decision on custodial penalties (see ibid). The Court of
has also noted that the two provisions have the same objective (Wolzenburgjudgment, para 62,
above). See also the opinion in Koslowski (para 73), ibid.
See the clearly correct interpretation on this point in the opinions in Kozlowski, paras 40-112
Wolzenburg, paras 121-144 (both ibid), in particular as regards the German rule that nationals
be subject to an EAW without their consent. Of course, the German rule is understandin
light ofthe constitutional problems implementing the Framework Decision there as regards
extradition of nationals (see further below). In any event, the point has limited relevance given the
interpretation of Art 4(6) (see next footnote).
Arts 4(6) and 5(3), discussed above. Since the Wolzenburg judgment (ibid) accepted the blanapplication
of Art 4(6) (and probably Art 5(3), by analogy) to nationals of the executing State,
States with qualms about surrendering their own nationals have an obvious (and legitimate)
available to address their concerns. See also the specific derogation (now expired) for Austria
temporal limitations which some Member States apply (n 274 above).
Art 20, which also refers to a request for a waiver, but does not state what happens ifthe waiver
granted. On this issue, see H Fox, The Law ofState Immunity (OUP, 2002), 503-516.
Arts 27 and 28. An identical specialty provision appears in the Framework Decision on cuspenalties,
except there is no possibility for Member States to waive its application (Art 18 of
measure, n 298 above; see 9.7.1.2 below). It would be logical to interpret these provisions the
way. 322 Leymann and Pustovarov, n 271 above.
permitting refusal to execute an EAW, where the EAW was issued for the purpose
of enforcing a sentence, if the executing Member State will take over the
sentence. An entirely identical interpretation ofthe two provisions is not possible,
however, since only one of the two provisions can apply to persons 'staying in'
the rerritory"? As noted already, the pending lB case concerns the difference
qetween the two provisions when a trial was held in absentia.
As for other traditional restrictions on extradition obligations, Member States
<an no longer refuse to extradite their own nationals.t" although there are some
.vestizial remnants ofthis principlc.:"? There is no reference to a possible refusal to
execute the warrant or guarantees on grounds ofimmunity, privilege, or pardon,
although the Framework Decision provides that where a privilege or immunity
the time period to execute the warrant does not start until that privilege
immunity is waived.F" Nor is there an exception for fiscal offences, military
or political offences as found in the Council of Europe's extradition
c.;Clll\rerltic)n, although there is a provision in the preamble to the Framework
t>e~C1:;]On (discussed below) referring to the prohibition on execution of measures
mtended to persecute people on certain grounds, which corresponds to a part of
traditional 'political offence' exception. There are still possible restrictions
J:"eJating to grounds of specialty (ie the principle that a person cannot be prosfor
an 'offence other' than that named in the EAW), subsequent surrender
Member States, and re-extradition to a non-EU State, but Member States
the option to waive the first two of these protections.F!
Court ofJustice has clarified aspects of the specialty rule, following a
iretel:erlce from a national court.F" According to the Framework Decision, the
does not apply, leaving aside cases where Member States have waived it,
Criminal Law: Mutual Recognition and Criminal Procedure
that the equality principle applies to the entirety of this (and other) Pramewe
Decisions, not just to the specific clauses that mention nationals and residents
the executing State.i''"
Finally on this provision, the pending lB case asks how to distmguish
the separate but similar provision on possible guarantees where the EAW
issued for the purpose of prosecution, where the trial was held in aVj:ertl~!Q.
Next, there are three cases in which the executingjudicial authority
discretion) ask for certain guarantees in accordance with the executing
State's law. Firstly, where the sentence has been passed in absentia, if the
concerned had not been summoned in person or otherwise informeclof
details ofthe hearing, the executing State may request the guarantee that he or
must have 'an opportunity to apply for a retrial' and be present at the judgment
This provision was amended in 2009, by means ofa Framework Decision tllara,
inserted revised (uniform) rules relating to the in absentia exception in fourot
mutual recognition measures.P'" The new rule provides that an executingS
may refuse to execute an EAW unless one of four conditions applies, as sI'
fied further: the person concerned was sufficiently aware of the trial; the pe
concerned was defended by a lawyer which he or she had instructed; the per
concerned has waived his or her right to a retrial; or the person concernedh
right to a full retrial. These new rules reflect the case law ofthe European Go
of Human Rights more accurately.313
Secondly, where a life sentence could be imposed for the crime,
State may be requested to guarantee that the sentence must be reviewable
twenty years at the latest.314 Thirdly, a judicial authority may insist,
EAW is issued for the purpose of prosecution, that a national or resident
executing State must be returned after the trial to serve their sentence
State.I" This provision will also interact in future with the Framework
on recognition of custodial sentences.?" and furthermore it should obvious
be interpreted consistently as far as possible with the nearly identical PfC)Y1SIQ
for non-Dutch citizens to cases where the person concerned could have been prosecuted
Netherlands for the relevant offence and where the person concerned would not lose
residence right (see paras 80-86, Wolzenburg opinion) are only objectionable to the extent
infringe EU free movement or immigration law.
309 See paras 42-47 of the Wolzenburg judgment (n 271 above). 310 Ibid.
311 Art 5(1). In absentia trials are an issue in the pending IB case (ibid). Note also that
tia judgments trigger the application of the Schengen double jeopardy rules: see Case
Bourquain [2008] ECR 1-9425, and further 11.8 below.
312 [2009] OJ L 81/24, rescinding Art 5(1) and inserting a new Art 4a. This Framework
must be applied from 6 Mar 2011, except as regards Italy, which will apply it from 1Jan 2014
and (2), 2009 Framework Decision, and declaration in [2009] OJ L 97/14). The other
amended by the 2009 Framework Decision are the Framework Decisions on recognition
cial penalties, confiscation, custodial sentences, and probation and parole (see 9.7.1, 9.7.4,
below). Note that except as regards Italy, the 2009 Framework Decision will apply even
dates to apply the latter two Framework Decisions. 313 See 9.3.1 and
314 Art 5(2). 315 Art 5(3). 316 See n 298 above.
702
703Extradition and the European Arrest Warrant
4(6), discussed above. The requirement ofidentical interpretation is bolstered by the referto
both provisions in the Framework Decision on custodial penalties (see ibid). The Court of
has also noted that the two provisions have the same objective (Wolzenburgjudgment, para 62,
above). See also the opinion in Koslowski (para 73), ibid.
See the clearly correct interpretation on this point in the opinions in Kozlowski, paras 40-112
Wolzenburg, paras 121-144 (both ibid), in particular as regards the German rule that nationals
be subject to an EAW without their consent. Of course, the German rule is understandin
light ofthe constitutional problems implementing the Framework Decision there as regards
extradition of nationals (see further below). In any event, the point has limited relevance given the
interpretation of Art 4(6) (see next footnote).
Arts 4(6) and 5(3), discussed above. Since the Wolzenburg judgment (ibid) accepted the blanapplication
of Art 4(6) (and probably Art 5(3), by analogy) to nationals of the executing State,
States with qualms about surrendering their own nationals have an obvious (and legitimate)
available to address their concerns. See also the specific derogation (now expired) for Austria
temporal limitations which some Member States apply (n 274 above).
Art 20, which also refers to a request for a waiver, but does not state what happens ifthe waiver
granted. On this issue, see H Fox, The Law ofState Immunity (OUP, 2002), 503-516.
Arts 27 and 28. An identical specialty provision appears in the Framework Decision on cuspenalties,
except there is no possibility for Member States to waive its application (Art 18 of
measure, n 298 above; see 9.7.1.2 below). It would be logical to interpret these provisions the
way. 322 Leymann and Pustovarov, n 271 above.
permitting refusal to execute an EAW, where the EAW was issued for the purpose
of enforcing a sentence, if the executing Member State will take over the
sentence. An entirely identical interpretation ofthe two provisions is not possible,
however, since only one of the two provisions can apply to persons 'staying in'
the rerritory"? As noted already, the pending lB case concerns the difference
qetween the two provisions when a trial was held in absentia.
As for other traditional restrictions on extradition obligations, Member States
<an no longer refuse to extradite their own nationals.t" although there are some
.vestizial remnants ofthis principlc.:"? There is no reference to a possible refusal to
execute the warrant or guarantees on grounds ofimmunity, privilege, or pardon,
although the Framework Decision provides that where a privilege or immunity
the time period to execute the warrant does not start until that privilege
immunity is waived.F" Nor is there an exception for fiscal offences, military
or political offences as found in the Council of Europe's extradition
c.;Clll\rerltic)n, although there is a provision in the preamble to the Framework
t>e~C1:;]On (discussed below) referring to the prohibition on execution of measures
mtended to persecute people on certain grounds, which corresponds to a part of
traditional 'political offence' exception. There are still possible restrictions
J:"eJating to grounds of specialty (ie the principle that a person cannot be prosfor
an 'offence other' than that named in the EAW), subsequent surrender
Member States, and re-extradition to a non-EU State, but Member States
the option to waive the first two of these protections.F!
Court ofJustice has clarified aspects of the specialty rule, following a
iretel:erlce from a national court.F" According to the Framework Decision, the
does not apply, leaving aside cases where Member States have waived it,
Criminal Law: Mutual Recognition and Criminal Procedure
that the equality principle applies to the entirety of this (and other) Pramewe
Decisions, not just to the specific clauses that mention nationals and residents
the executing State.i''"
Finally on this provision, the pending lB case asks how to distmguish
the separate but similar provision on possible guarantees where the EAW
issued for the purpose of prosecution, where the trial was held in aVj:ertl~!Q.
Next, there are three cases in which the executingjudicial authority
discretion) ask for certain guarantees in accordance with the executing
State's law. Firstly, where the sentence has been passed in absentia, if the
concerned had not been summoned in person or otherwise informeclof
details ofthe hearing, the executing State may request the guarantee that he or
must have 'an opportunity to apply for a retrial' and be present at the judgment
This provision was amended in 2009, by means ofa Framework Decision tllara,
inserted revised (uniform) rules relating to the in absentia exception in fourot
mutual recognition measures.P'" The new rule provides that an executingS
may refuse to execute an EAW unless one of four conditions applies, as sI'
fied further: the person concerned was sufficiently aware of the trial; the pe
concerned was defended by a lawyer which he or she had instructed; the per
concerned has waived his or her right to a retrial; or the person concernedh
right to a full retrial. These new rules reflect the case law ofthe European Go
of Human Rights more accurately.313
Secondly, where a life sentence could be imposed for the crime,
State may be requested to guarantee that the sentence must be reviewable
twenty years at the latest.314 Thirdly, a judicial authority may insist,
EAW is issued for the purpose of prosecution, that a national or resident
executing State must be returned after the trial to serve their sentence
State.I" This provision will also interact in future with the Framework
on recognition of custodial sentences.?" and furthermore it should obvious
be interpreted consistently as far as possible with the nearly identical PfC)Y1SIQ
for non-Dutch citizens to cases where the person concerned could have been prosecuted
Netherlands for the relevant offence and where the person concerned would not lose
residence right (see paras 80-86, Wolzenburg opinion) are only objectionable to the extent
infringe EU free movement or immigration law.
309 See paras 42-47 of the Wolzenburg judgment (n 271 above). 310 Ibid.
311 Art 5(1). In absentia trials are an issue in the pending IB case (ibid). Note also that
tia judgments trigger the application of the Schengen double jeopardy rules: see Case
Bourquain [2008] ECR 1-9425, and further 11.8 below.
312 [2009] OJ L 81/24, rescinding Art 5(1) and inserting a new Art 4a. This Framework
must be applied from 6 Mar 2011, except as regards Italy, which will apply it from 1Jan 2014
and (2), 2009 Framework Decision, and declaration in [2009] OJ L 97/14). The other
amended by the 2009 Framework Decision are the Framework Decisions on recognition
cial penalties, confiscation, custodial sentences, and probation and parole (see 9.7.1, 9.7.4,
below). Note that except as regards Italy, the 2009 Framework Decision will apply even
dates to apply the latter two Framework Decisions. 313 See 9.3.1 and
314 Art 5(2). 315 Art 5(3). 316 See n 298 above.
702
705Extradition and the European Arrest Warrant
See 9.8.2 below. 334 CaM (2005) 63, 23 Feb 2005.
CaM (2006) 8, 24 Jan 2006.
The Framework Decision contains provisions on human rights which have
been repeated in subsequent Framework Decisions.F" In particular, the
preamble specifies that:
However, see the different wording of the Framework Decisions on the evidence warrant,
recognition offinancial penalties, and recognition ofconfiscation orders (9.6.1.2, 9.7.1.1, and
."t o,eIOWJ, as well as the proposed Directive establishing the European Investigation Order (9.6.1.3
On human rights and mutual recognition in general, see 9.3.5 above. 330 Art 1(3).
Paras 10 and 13 of the preamble. On human rights protection against extradition, see 9.3.1
332 Arts 11 and 14.
This Framework Decision respects fundamental rights and observes the principles
recognised by Article 6 of the Treaty on European Union and reflected in the Charter of
Fundamental Rights of the European Union, in particular Chapter VI thereof. Nothing
this Framework Decision may be interpreted as prohibiting refusal to surrender a
for whom a European arrest warrant has been issued when there are reasons to
on the basis of objective elements, that the said arrest warrant has been issued for
purpose of prosecuting or punishing a person on the grounds of his or her sex, race,
rCllgllJn, ethnic origin, nationality, language, political opinions or sexual orientation, or
that person's position may be prejudiced for any of these reasons.
This Framework Decision does not prevent a Member State from applying its constirules
relating to due process, freedom of association, freedom of the press and
HCCWJIll of expression in other media.
main text of the Framework Decision then specifies that '[t]his Framework
Decision shall not have the effect of modifying the obligation to respect fundarights
and fundamental legal principles as enshrined in Article 6 of the
on European Union'.330 There are also provisions in the preamble, unique
this Framework Decision, concerning possible suspension of the Framework
lJ(~cisio,n if a Member State is suspended from EU membership due to human
breaches, and protection against extradition, etc in cases of, for example
or the death penalty.'?' Finally, Member States are required to establish
.remedies for fugitives as regards a right to information about the EAW, the right
counsel and an interpreter, and the right to a hearing.P? It should be noted
the subsequent Directive on suspects' rights to interpretation and translation
the proposed Directive on suspects' right to information expressly apply to
proceedings.l"
The Commission presented an initial assessment of the national implemenof
the Framework Decision in 2005,334 and subsequently updated this
analysis in 2006 to take account of the late Italian implementation (Italy being
Member State to implement the Framework Decision) in April 2005.335
to the statistics available to the Commission, 2,603 warrants were
653 persons were arrested, and 104 persons were surrendered up until
September 2004; it estimated that the time to execute a warrant had fallen from
Criminal Law: Mutual Recognition and Criminal Procedure
323 See the clarification of this point in ibid, para 70.
324 Art 27(2) and (3). The last exception is subject to limits set out in Art 27(4): inter
must be refused where the mandatory exceptions in Art 3 apply, and otherwise may
where Art 4 applies; the guarantees in Art 5 also apply.
315 Para 57, LeYl1'lann judgment, n 271 above. 316 Paras 60-63, ibid.
327 Paras 72-76, ibid.
328 Art 28(1)-(3). However, note the absolute requirement ofthe executing
the person concerned can be extradited to a non-El.J State (Art 28(4)).
A modification of the description of the offence as regards the type
which were allegedly imported, without changing the legal description
offence, does not amount to a charge for an 'offence other' than that for
the person concerned was surrendered, given that the offence concerned
fell within the same heading in the list of offences for which dual crirninality
abolished.P" Finally, the exception relating to cases where the criminal pr<o((~ed
ings do not give rise to restrictions on liberty meant that such proceedings
go ahead, but that any pre-trial or post-trial detention which resulted
be applied with the consent of the person concerned or the executing
authorities pursuant to the rules in the Framework Decision. In the meantir
however, the person's liberty could still be restricted ifthat was lawful on
of the charges set out in the EAW. 327 It should be noted that the orovisions
Framework Decision on subsequent surrender to another Member
a large degree identical to the specialty provisions, and so should presumablg
interpreted the same way as far as possible.I"
704
where: the person concerned has stayed in or returned to the State which
to bring the extra charges; the offence is not punishable by a custodial npn~lbr
or detention order; the criminal proceedings do not give rise to
the person concerned could be subject to a restriction on his or her
compared to a deprivation of it;323 the person concerned has consented to
render or to waiver of the specialty principle; or the executing State's authoris
ties have consented to waiver of the principle.F" The Court ruled that in
to determine what was an 'offence other' than that for which the
surrendered.I"
... it is necessary to ascertain whether the constituent elements of the offence,
ing to the legal description given by the issuing State, are those for which the
was surrendered and whether there is a sufficient correspondence between the
tion given in the arrest warrant and that contained in the later procedural
Modifications concerning the time or place of the offence are allowed, in so far
derive from evidence gathered in the course of the proceedings conducted in the
State concerning the conduct described in the arrest warrant, do not alter the
the offence and do not lead to grounds for non-execution under Articles 3 and
Framework Decision.
705Extradition and the European Arrest Warrant
See 9.8.2 below. 334 CaM (2005) 63, 23 Feb 2005.
CaM (2006) 8, 24 Jan 2006.
The Framework Decision contains provisions on human rights which have
been repeated in subsequent Framework Decisions.F" In particular, the
preamble specifies that:
However, see the different wording of the Framework Decisions on the evidence warrant,
recognition offinancial penalties, and recognition ofconfiscation orders (9.6.1.2, 9.7.1.1, and
."t o,eIOWJ, as well as the proposed Directive establishing the European Investigation Order (9.6.1.3
On human rights and mutual recognition in general, see 9.3.5 above. 330 Art 1(3).
Paras 10 and 13 of the preamble. On human rights protection against extradition, see 9.3.1
332 Arts 11 and 14.
This Framework Decision respects fundamental rights and observes the principles
recognised by Article 6 of the Treaty on European Union and reflected in the Charter of
Fundamental Rights of the European Union, in particular Chapter VI thereof. Nothing
this Framework Decision may be interpreted as prohibiting refusal to surrender a
for whom a European arrest warrant has been issued when there are reasons to
on the basis of objective elements, that the said arrest warrant has been issued for
purpose of prosecuting or punishing a person on the grounds of his or her sex, race,
rCllgllJn, ethnic origin, nationality, language, political opinions or sexual orientation, or
that person's position may be prejudiced for any of these reasons.
This Framework Decision does not prevent a Member State from applying its constirules
relating to due process, freedom of association, freedom of the press and
HCCWJIll of expression in other media.
main text of the Framework Decision then specifies that '[t]his Framework
Decision shall not have the effect of modifying the obligation to respect fundarights
and fundamental legal principles as enshrined in Article 6 of the
on European Union'.330 There are also provisions in the preamble, unique
this Framework Decision, concerning possible suspension of the Framework
lJ(~cisio,n if a Member State is suspended from EU membership due to human
breaches, and protection against extradition, etc in cases of, for example
or the death penalty.'?' Finally, Member States are required to establish
.remedies for fugitives as regards a right to information about the EAW, the right
counsel and an interpreter, and the right to a hearing.P? It should be noted
the subsequent Directive on suspects' rights to interpretation and translation
the proposed Directive on suspects' right to information expressly apply to
proceedings.l"
The Commission presented an initial assessment of the national implemenof
the Framework Decision in 2005,334 and subsequently updated this
analysis in 2006 to take account of the late Italian implementation (Italy being
Member State to implement the Framework Decision) in April 2005.335
to the statistics available to the Commission, 2,603 warrants were
653 persons were arrested, and 104 persons were surrendered up until
September 2004; it estimated that the time to execute a warrant had fallen from
Criminal Law: Mutual Recognition and Criminal Procedure
323 See the clarification of this point in ibid, para 70.
324 Art 27(2) and (3). The last exception is subject to limits set out in Art 27(4): inter
must be refused where the mandatory exceptions in Art 3 apply, and otherwise may
where Art 4 applies; the guarantees in Art 5 also apply.
315 Para 57, LeYl1'lann judgment, n 271 above. 316 Paras 60-63, ibid.
327 Paras 72-76, ibid.
328 Art 28(1)-(3). However, note the absolute requirement ofthe executing
the person concerned can be extradited to a non-El.J State (Art 28(4)).
A modification of the description of the offence as regards the type
which were allegedly imported, without changing the legal description
offence, does not amount to a charge for an 'offence other' than that for
the person concerned was surrendered, given that the offence concerned
fell within the same heading in the list of offences for which dual crirninality
abolished.P" Finally, the exception relating to cases where the criminal pr<o((~ed
ings do not give rise to restrictions on liberty meant that such proceedings
go ahead, but that any pre-trial or post-trial detention which resulted
be applied with the consent of the person concerned or the executing
authorities pursuant to the rules in the Framework Decision. In the meantir
however, the person's liberty could still be restricted ifthat was lawful on
of the charges set out in the EAW. 327 It should be noted that the orovisions
Framework Decision on subsequent surrender to another Member
a large degree identical to the specialty provisions, and so should presumablg
interpreted the same way as far as possible.I"
704
where: the person concerned has stayed in or returned to the State which
to bring the extra charges; the offence is not punishable by a custodial npn~lbr
or detention order; the criminal proceedings do not give rise to
the person concerned could be subject to a restriction on his or her
compared to a deprivation of it;323 the person concerned has consented to
render or to waiver of the specialty principle; or the executing State's authoris
ties have consented to waiver of the principle.F" The Court ruled that in
to determine what was an 'offence other' than that for which the
surrendered.I"
... it is necessary to ascertain whether the constituent elements of the offence,
ing to the legal description given by the issuing State, are those for which the
was surrendered and whether there is a sufficient correspondence between the
tion given in the arrest warrant and that contained in the later procedural
Modifications concerning the time or place of the offence are allowed, in so far
derive from evidence gathered in the course of the proceedings conducted in the
State concerning the conduct described in the arrest warrant, do not alter the
the offence and do not lead to grounds for non-execution under Articles 3 and
Framework Decision.
336 See Council doc 8842/1/05, 19 May 2005.
3J7 JHA Council press release, 2-3 June 2005. The questionnaire for the evaluation, which
in 2006, can be found in Council doc 14272/05, 11 Nov 2005.
338 Council doc 11528/05, 5 Sep 2005.
339 COM (2007) 407 and SEC (2007) 979, 11July 2007. See the responses oftwo Member
(Council docs 14308/07 and add 1, 12 and 13 Nov 2007).
707
341 Council doc 830214/09, 28 May 2009.
343 [2010] OJ C 115, point 3.1.1.
Extradition and the European Arrest Warrant
concluded that the Framework Decision was a 'success', and the remaining problems
with its application were 'peripheral'.
The latest fairly complete statistics concerning the EAW, dating from 2008,
show that in that year over 14,000 EAWs were issued by the Member States
supplying statistics.r'" Over 4,500 persons were arrested, and nearly 2,900 were
surrendered, Clearly the EAW is increasingly used in practice.
As for the Council's evaluation, it culminated in a series ofdraft recommendations,
mostly concerning practical aspects of the application ofthe EAW but also
touching on the sensitive issues of the grounds for non-recognition, including
human rights grounds, and the possible abolition of the specialty rule.I" Some
recommendations were addressed to Member States, while another batch were
addressed to the Council's working groups; the latter were then followed up by
Council conclusions, which were adopted in June 2010.342
The Stockholm programme
invited the Commission to consider the evaluation and possibly to make
proposals to 'increase efficiency and legal protection for individuals in the process
(Ifsurrender'.343 It should also be noted that Eurojust, the EU prosecutors' agency,
also has a role as regards EAWs.3
4
4
The implementation of the EAW has been equally controversial at national
level in a number of Member States.v" and three national constitutional courts
struck down the national application ofthe Framework Decision, at least in principle.
First of all, in spring 2005, the Polish constitutional court ruled that the
national law implementing the EAW Framework Decision was unconstitutional
as it permitted the extradition ofPolish citizens, although that court delayed the
application of its judgment for eighteen months so that the constitution could
be modified; the constitutional amendment duly took effect in November 2006.
Next, in July 2005, the German Constitutional court ruled that the national
implementing law was invalid, as regards German citizens; the Spanish and
Hungarian courts responded by disapplying the EAW as regards German warrants
issued for German citizens, but the national law was amended by August
2006. Finally, in November 2005, the Cypriot constitutional court ruled that
the EAW conflicted with the Cypriot constitution as regards the surrender of
Cypriot nationals; so the constitution was amended as from July 2006. However,
the Czech constitutional court in particular upheld the Framework Decision.
How should the EAW be assessed? The initial case law ofthe Court ofJustice is
focusing on the efficient application ofthe EAW, overriding the sound argument
that at least some EU citizens with less than five years' residence in a Member
State may be sufficiently integrated there to benefit from the same protection as a
340 Council doc 9734/4/09, 7 Dec 2009.
342 Council doc 8436/2/10, 28 May 2010.
344 See 11.9 below.
345 See the summary with further references in the 2007 Commission report (n 338 above), and
the analysis in Guild and Marin, n 270 above.
Criminal Law: Mutual Recognition and Criminal Procedure
nine months to forty-three days (thirteen days where the warrant was not
tested). In the Commission's view, however, a number of Member
not in full compliance with the Framework Decision, in particular by
restricting its temporal scope; limiting the partial abolition of double crimin
ity; granting decision-making powers to executive (rather than judicial) bodi
allowing their authorities to demand additional guarantees before surrender;pI."c)...
viding for additional grounds for refusal (including an over-broad application9p
human rights grounds and the imposition ofconditions concerning the surrendb17
ofnationals); insisting on additional procedural requirements for transmission
arrest warrants; failing to apply time limits; and setting out the procedural righ
of the individual too vaguely.
This critical report on the EU's flagship mutual recognition measure resulte
in an unprecedented debate in the JHA Council, which focused on the issu
of the human rights ground for refusal, political grounds for refusal, the use
executive bodies instead ofjudicial bodies, and the limits on the temporal sco
of the Framework Decision.P" The Council did not adopt any formal
sions on these issues, but it asked the Commission to produce a further
by June 2006 and decided to conduct a practical evaluation of the application
the EAW.337 Member States subsequently submitted detailed responses in ,,"",t,nct
objecting to the Commission's analysis.I"
A second Commission report in 2007 concluded that there were still problem:
applying the Framework Decision in some Member States, inter alia as
transitional application of the EAW, surrender of own nationals, sentencing
thresholds, double criminality checks, and incorrect or impermissible grlov.ltl.cls
for non-execution, including a large number relating to human rights.P?
Member States had amended national laws to bring them further into conformity
with the Framework Decision. As for the Commission's previous
half of the Member States' objections related to information which they
already have sent to the Commission, a quarter were valid corrections, and
Commission did not agree with the other quarter of the objections. In practice,
according to the report, in 2005, 6,900 warrants were issued in twentv-tnree
Member States providing statistics, resulting in 1,770 arrests and 1,532 surrenders
with half consenting to surrenders and a fifth being nationals of the executing
State, guarantees ofreturn having been agreed in halfofthose cases. The
execute the warrants was still forty-three days (eleven days in the case
although in 5% of cases the relevant deadlines were not met. The Commission
706
336 See Council doc 8842/1/05, 19 May 2005.
3J7 JHA Council press release, 2-3 June 2005. The questionnaire for the evaluation, which
in 2006, can be found in Council doc 14272/05, 11 Nov 2005.
338 Council doc 11528/05, 5 Sep 2005.
339 COM (2007) 407 and SEC (2007) 979, 11July 2007. See the responses oftwo Member
(Council docs 14308/07 and add 1, 12 and 13 Nov 2007).
707
341 Council doc 830214/09, 28 May 2009.
343 [2010] OJ C 115, point 3.1.1.
Extradition and the European Arrest Warrant
concluded that the Framework Decision was a 'success', and the remaining problems
with its application were 'peripheral'.
The latest fairly complete statistics concerning the EAW, dating from 2008,
show that in that year over 14,000 EAWs were issued by the Member States
supplying statistics.r'" Over 4,500 persons were arrested, and nearly 2,900 were
surrendered, Clearly the EAW is increasingly used in practice.
As for the Council's evaluation, it culminated in a series ofdraft recommendations,
mostly concerning practical aspects of the application ofthe EAW but also
touching on the sensitive issues of the grounds for non-recognition, including
human rights grounds, and the possible abolition of the specialty rule.I" Some
recommendations were addressed to Member States, while another batch were
addressed to the Council's working groups; the latter were then followed up by
Council conclusions, which were adopted in June 2010.342
The Stockholm programme
invited the Commission to consider the evaluation and possibly to make
proposals to 'increase efficiency and legal protection for individuals in the process
(Ifsurrender'.343 It should also be noted that Eurojust, the EU prosecutors' agency,
also has a role as regards EAWs.3
4
4
The implementation of the EAW has been equally controversial at national
level in a number of Member States.v" and three national constitutional courts
struck down the national application ofthe Framework Decision, at least in principle.
First of all, in spring 2005, the Polish constitutional court ruled that the
national law implementing the EAW Framework Decision was unconstitutional
as it permitted the extradition ofPolish citizens, although that court delayed the
application of its judgment for eighteen months so that the constitution could
be modified; the constitutional amendment duly took effect in November 2006.
Next, in July 2005, the German Constitutional court ruled that the national
implementing law was invalid, as regards German citizens; the Spanish and
Hungarian courts responded by disapplying the EAW as regards German warrants
issued for German citizens, but the national law was amended by August
2006. Finally, in November 2005, the Cypriot constitutional court ruled that
the EAW conflicted with the Cypriot constitution as regards the surrender of
Cypriot nationals; so the constitution was amended as from July 2006. However,
the Czech constitutional court in particular upheld the Framework Decision.
How should the EAW be assessed? The initial case law ofthe Court ofJustice is
focusing on the efficient application ofthe EAW, overriding the sound argument
that at least some EU citizens with less than five years' residence in a Member
State may be sufficiently integrated there to benefit from the same protection as a
340 Council doc 9734/4/09, 7 Dec 2009.
342 Council doc 8436/2/10, 28 May 2010.
344 See 11.9 below.
345 See the summary with further references in the 2007 Commission report (n 338 above), and
the analysis in Guild and Marin, n 270 above.
Criminal Law: Mutual Recognition and Criminal Procedure
nine months to forty-three days (thirteen days where the warrant was not
tested). In the Commission's view, however, a number of Member
not in full compliance with the Framework Decision, in particular by
restricting its temporal scope; limiting the partial abolition of double crimin
ity; granting decision-making powers to executive (rather than judicial) bodi
allowing their authorities to demand additional guarantees before surrender;pI."c)...
viding for additional grounds for refusal (including an over-broad application9p
human rights grounds and the imposition ofconditions concerning the surrendb17
ofnationals); insisting on additional procedural requirements for transmission
arrest warrants; failing to apply time limits; and setting out the procedural righ
of the individual too vaguely.
This critical report on the EU's flagship mutual recognition measure resulte
in an unprecedented debate in the JHA Council, which focused on the issu
of the human rights ground for refusal, political grounds for refusal, the use
executive bodies instead ofjudicial bodies, and the limits on the temporal sco
of the Framework Decision.P" The Council did not adopt any formal
sions on these issues, but it asked the Commission to produce a further
by June 2006 and decided to conduct a practical evaluation of the application
the EAW.337 Member States subsequently submitted detailed responses in ,,"",t,nct
objecting to the Commission's analysis.I"
A second Commission report in 2007 concluded that there were still problem:
applying the Framework Decision in some Member States, inter alia as
transitional application of the EAW, surrender of own nationals, sentencing
thresholds, double criminality checks, and incorrect or impermissible grlov.ltl.cls
for non-execution, including a large number relating to human rights.P?
Member States had amended national laws to bring them further into conformity
with the Framework Decision. As for the Commission's previous
half of the Member States' objections related to information which they
already have sent to the Commission, a quarter were valid corrections, and
Commission did not agree with the other quarter of the objections. In practice,
according to the report, in 2005, 6,900 warrants were issued in twentv-tnree
Member States providing statistics, resulting in 1,770 arrests and 1,532 surrenders
with half consenting to surrenders and a fifth being nationals of the executing
State, guarantees ofreturn having been agreed in halfofthose cases. The
execute the warrants was still forty-three days (eleven days in the case
although in 5% of cases the relevant deadlines were not met. The Commission
706
709Extradition and the European Arrest Warrant
Parliament.Y"
349 See n 271 above.
See the opinions in Wolzenburg, Koslowslei, and Santesteban Goicoechea, as well as the questions
the pending IS case and the withdrawn Gataev case (n 271 above).
351 See 9.3.5 above. See also the balance between the mutual trust principles and human rights
protection in the Wolzenburg and Koslowsleiopinions (ibid).
352 See Annex II to the 2004 annual report of Eurojust and the EP recommendation to the
of 15 Mar 2006 (P6_TA-PROV(2006)0083). See also the Commission assessments of the
implementation of other Framework Decisions (9.6.2, 9.7.1.1, and 9.7.4 below).
While the main text of the Framework Decision is ambiguous as to whether
human rights can constitute grounds for non-execution of a warrant, the express
wordinz of the preamble is not: '[n]othing in this Framework Decision may be
interpreted as prohibiting refusal to surrender a person' as regards discriminatory
prosecution, and the Framework Decision 'does not prevent a Member State from
applving its constitutional rules relating to due process' and other specified matters.
it would obviously have been preferable, from the point ofview oflegal certo
set out these provisions as express exclusions from the principle ofmutual
recognition in the main text of the legislation, it can be presumed that this was
considered unnecessary because it was assumed that Member States' international
rights commitments and national constitutions, along with the primary
of the EU (Article 6 TEU) took precedence over the Framework Decision.
for the same reasons, it must be accepted that any further human
obligations stemming from international commitments or national constieven
if not referred to explicitly in the preamble, can also be invoked as
zrounds ofnon-execution. And given the nature ofhuman rights obligations, nonexecution
on human rights grounds must be regarded as mandatory, not discretionThe
vague express reference to human rights obligations in the main text ofthe
Framework Decision should be understood as confirming this interpretation.
Although the Court ofJustice case law on the grounds for non-execution has
consistently concluded that the grounds for non-recognition in the Framework
Decision are exhaustive.?" this does not answer the objection that human rights
zrounds for non-execution stem from the primary law ofthe EU (now including
EU Charter of Fundamental Rights), not secondary legislation. A series of
opinions ofAdvocates General have concluded explicitly that Member States can
to recognize EAWs on human rights grounds.P" As for the argument that
Member States must have mutual trust in each others' systems, as noted above, the
to reject mutual recognition on human rights grounds, on the assumpthat
the problem will be fixed months later in the issuing State or years later
the European Court ofHuman Rights, would mean that human rights protecin
this field would be theoretical and illusory, not real and effective.l"
There is therefore no basis for the Commission's continued arguments that
Member States' legislation transposing the Framework Decision has exceeded
limits of their discretion on this point; and there is still less ground for the
interpretation ofthe Framework Decision advocated by Eurojust or the European
Criminal Law: Mutual Recognition and Criminal Procedure
346 See the opinion in Wolzenburg on this point.
347 cf the inconclusive discussions on the proportionality of issuing EAWs (see
recommendations and conclusions (nn 340 and 341 above)). 348 See generally
Member States' nationals.?" The Court's assumption in the Wolzenburg case
widening the application of the EAW as much as possible will necessarily
to achieve its aims, along with the addition of a further requirement in
apply some exceptions to the Framework Decision in the Koslowski case, is,
respect, misguided, as it overlooks the contrary objectives of free movement
rules and fails to recognize that the enforcement of a sentence in the executinj
State in such cases still accomplishes the objectives ofdeterrence and punishmen
while increasing the chance of rehabilitation. The recommendation
Council evaluation on the EAW to abolish the application ofthe specialty
profoundly unprincipled, since its abolition would allow unscrupulous p[()se:cup
tors to circumvent all of the safeguards in the Framework Decision (for mstancee
by issuing an EAW and then proceeding with the 'real' prosecution for
offences which fall below the punishment threshold in the Framework Decision
or for offences which fall within the scope ofthe grounds for non-execution
EAW). This would hardly improve the legitimacy ofthe EAWand could
the efficient application of the system by wasting executing States'
resources chasing and processing fugitives whose alleged crime was quite
This is already a problem to some extent, with some Member States issuing
warrants for crimes such as the 'theft of a piglet'r"?
The most fundamental issue for the legitimacy of the EAW, other
still-contested issue of the surrender of nationals, is the question of whether
EAW system is compatible with human rights, an issue which applies
to all other mutual recognition measures.r" Certainly it is problematic
Commission keeps criticizing Member States' attempts to protect the
rights of suspects who are the subject of EAWs: the 2007 report, for
objected to the Danish law which provides for refusal ofsurrender on grounds
'torture, degrading treatment, violation of due process as well as if the
appears to be unreasonable on humanitarian grounds', as well as a
which requires in absentia trials to meet basic ECHR criteria.
The answer to this fundamental question depends in part on whether
States' judicial authorities have an obligation, or at least the power,
execution of other Member States' warrants on human rights grounds
tion to the specific double jeopardy and in absentia provisions of the Fr;l111eW'()
Decision). The judgment in Aduocaten voor de Wereld referred to a recluirel:riel
to protect human rights within the context of the Framework Decision;
then ruled that the onus is on the issuing State to ensure the
human rights as regards the dual criminality principle. However, this
not address the issue of whether the executing State can examine the
Member State's request in order to consider non-execution on
grounds.
708
709Extradition and the European Arrest Warrant
Parliament.Y"
349 See n 271 above.
See the opinions in Wolzenburg, Koslowslei, and Santesteban Goicoechea, as well as the questions
the pending IS case and the withdrawn Gataev case (n 271 above).
351 See 9.3.5 above. See also the balance between the mutual trust principles and human rights
protection in the Wolzenburg and Koslowsleiopinions (ibid).
352 See Annex II to the 2004 annual report of Eurojust and the EP recommendation to the
of 15 Mar 2006 (P6_TA-PROV(2006)0083). See also the Commission assessments of the
implementation of other Framework Decisions (9.6.2, 9.7.1.1, and 9.7.4 below).
While the main text of the Framework Decision is ambiguous as to whether
human rights can constitute grounds for non-execution of a warrant, the express
wordinz of the preamble is not: '[n]othing in this Framework Decision may be
interpreted as prohibiting refusal to surrender a person' as regards discriminatory
prosecution, and the Framework Decision 'does not prevent a Member State from
applving its constitutional rules relating to due process' and other specified matters.
it would obviously have been preferable, from the point ofview oflegal certo
set out these provisions as express exclusions from the principle ofmutual
recognition in the main text of the legislation, it can be presumed that this was
considered unnecessary because it was assumed that Member States' international
rights commitments and national constitutions, along with the primary
of the EU (Article 6 TEU) took precedence over the Framework Decision.
for the same reasons, it must be accepted that any further human
obligations stemming from international commitments or national constieven
if not referred to explicitly in the preamble, can also be invoked as
zrounds ofnon-execution. And given the nature ofhuman rights obligations, nonexecution
on human rights grounds must be regarded as mandatory, not discretionThe
vague express reference to human rights obligations in the main text ofthe
Framework Decision should be understood as confirming this interpretation.
Although the Court ofJustice case law on the grounds for non-execution has
consistently concluded that the grounds for non-recognition in the Framework
Decision are exhaustive.?" this does not answer the objection that human rights
zrounds for non-execution stem from the primary law ofthe EU (now including
EU Charter of Fundamental Rights), not secondary legislation. A series of
opinions ofAdvocates General have concluded explicitly that Member States can
to recognize EAWs on human rights grounds.P" As for the argument that
Member States must have mutual trust in each others' systems, as noted above, the
to reject mutual recognition on human rights grounds, on the assumpthat
the problem will be fixed months later in the issuing State or years later
the European Court ofHuman Rights, would mean that human rights protecin
this field would be theoretical and illusory, not real and effective.l"
There is therefore no basis for the Commission's continued arguments that
Member States' legislation transposing the Framework Decision has exceeded
limits of their discretion on this point; and there is still less ground for the
interpretation ofthe Framework Decision advocated by Eurojust or the European
Criminal Law: Mutual Recognition and Criminal Procedure
346 See the opinion in Wolzenburg on this point.
347 cf the inconclusive discussions on the proportionality of issuing EAWs (see
recommendations and conclusions (nn 340 and 341 above)). 348 See generally
Member States' nationals.?" The Court's assumption in the Wolzenburg case
widening the application of the EAW as much as possible will necessarily
to achieve its aims, along with the addition of a further requirement in
apply some exceptions to the Framework Decision in the Koslowski case, is,
respect, misguided, as it overlooks the contrary objectives of free movement
rules and fails to recognize that the enforcement of a sentence in the executinj
State in such cases still accomplishes the objectives ofdeterrence and punishmen
while increasing the chance of rehabilitation. The recommendation
Council evaluation on the EAW to abolish the application ofthe specialty
profoundly unprincipled, since its abolition would allow unscrupulous p[()se:cup
tors to circumvent all of the safeguards in the Framework Decision (for mstancee
by issuing an EAW and then proceeding with the 'real' prosecution for
offences which fall below the punishment threshold in the Framework Decision
or for offences which fall within the scope ofthe grounds for non-execution
EAW). This would hardly improve the legitimacy ofthe EAWand could
the efficient application of the system by wasting executing States'
resources chasing and processing fugitives whose alleged crime was quite
This is already a problem to some extent, with some Member States issuing
warrants for crimes such as the 'theft of a piglet'r"?
The most fundamental issue for the legitimacy of the EAW, other
still-contested issue of the surrender of nationals, is the question of whether
EAW system is compatible with human rights, an issue which applies
to all other mutual recognition measures.r" Certainly it is problematic
Commission keeps criticizing Member States' attempts to protect the
rights of suspects who are the subject of EAWs: the 2007 report, for
objected to the Danish law which provides for refusal ofsurrender on grounds
'torture, degrading treatment, violation of due process as well as if the
appears to be unreasonable on humanitarian grounds', as well as a
which requires in absentia trials to meet basic ECHR criteria.
The answer to this fundamental question depends in part on whether
States' judicial authorities have an obligation, or at least the power,
execution of other Member States' warrants on human rights grounds
tion to the specific double jeopardy and in absentia provisions of the Fr;l111eW'()
Decision). The judgment in Aduocaten voor de Wereld referred to a recluirel:riel
to protect human rights within the context of the Framework Decision;
then ruled that the onus is on the issuing State to ensure the
human rights as regards the dual criminality principle. However, this
not address the issue of whether the executing State can examine the
Member State's request in order to consider non-execution on
grounds.
708
9.6.1. Movement of evidence
9.6. Pre-trial measures
353 See 11.8 below. 354 See further 9.3,5 above. 355 Ibid.
356 On that case law, see 9.3,1 above.
357 On the movement of evidence in civil cases, see 8.5.4 above.
711Pre-trial measures
.1. Mutual assistance in criminal matters
See further 9.8.1 below,
See Commission 2010 work programme (COM (2010) 135, 31 Mar 2010, Annex Il) and the
Plan on implementing the Stockholm programme (COM (2010) 171,20 Apr 2010).
360 COM (2009) 624, 11 Nov 2009. 361 On this proposal, see 9.6.1.3 below,
ETS 30 and ETS 99. For ratification details, see Appendix I.
ETS 182; for ratification details, see Appendix I. 364 Art 5 of the Convention.
365 Art 2 of the Convention.
core texts on cross-border mutual assistance between judicial authorities
criminal law cases are the 1959 Council of Europe Convention ('the 1959
Convention') on mutual assistance, which all Member States have ratified, and
first Protocol to that Convention (1978), which all but one of the Member
has ratified.r'" A Second Protocol to the Convention, which parallels the
Convention of 2000 (see below) in several respects, was agreed in 2001, but
a minority ofEU Member States have ratified it.363
The 1959 Convention applies to all offences except military offences, and there
no sentencing threshold or double criminality requirement for its use, as there
for extradition treaties, except for search and seizure measures.P'" A judge in
'home State' ofthe prosecution, wanting to obtain evidence or other relevant
J.J.J.,J,LC;J.J.,u which another Member State is 'hosting', must send formal requests
'letters rogatory'), usually via his or her national ministry, to the relevant
rni nictrv of the host Member State, which forwards the request to a national
A judge in the prosecuting State can also request the attendance of a witwho
is residing in another State, but any summons the prosecuting judge
to such a witness unless the witness sets foot in the prosecuting Member
and then disobeys a second summons to appear. If a prosecuting judge
like to contact a potential witness in custody in another Member State,
would-be witness can refuse. There is an exception for political offences and
offences; assistance may also be refused if a requested State considers that
executing a request is 'likely to prejudice the sovereignty, security, ordre publicor
essential interests ofits country'.365 In practice, reservations are also applied
existing international (Council ofEurope) framework. Subsequently the EU
moved towards adopting mutual recognition measures in this area, starting
the Framework Decision on the European Evidence Warrant. Further steps
planned in this field, which are linked to plans for legislation harmonizing
national evidence law, for the purpose of ensuring mutual admissibility of evi-
358 The Commission plans to propose legislation on both issues in 2011,359
issued a Green Paper on both issues in 2009 to prepare these measures.i'" In
meantime, however, a group of Member States tabled an initiative in spring
for a Directive establishing a 'European Investigation Order', which will
repeal or replace most (but not all) existing mutual recognition measures
this area.361
Criminal Law: Mutual Recognition and Criminal Procedure
Further measures in addition to (or instead of) extradition proceedings
necessary before a trial with cross-border aspects takes place. It is obviouslv
sary to trace any relevant evidence or witnesses and ensure that the evi(h~n(:e
be used, or that the witnesses will testify, at the triaL if possible. Sometimes
necessary to issue freezing orders to ensure that property is available for pv,r1c'nr
or for subsequent confiscation. Finally, an important issue for individuals
length of any detention awaiting trial, which risks being longer where
cross-border elements to a case. These three issues will be examined in
710
In order to facilitate the movement ofevidence in criminal cases, 357 the EU
adopted specific and general measures on mutual judicial assistance, vU,J.J."U~~'6'
As for specific human rights issues, the mandatory non-execution ofa "",rr"nt
double jeopardy grounds is welcome, but the merely optional non-execution
offinal judgments and (in some cases) termination of prosecution is objectionabk
in light ofthe Court ofJustice's interpretation ofthe double jeopardy rules.353
absentia exception (which appears in most other mutual recognition measures)
only optional, rather than mandatory, but also fails to take account ofthe Poitn'me,l
line ofjurisprudence ofthe European Court ofHuman Righrs.v" As noted
although the 2009 Framework Decision on this issue brings standards into
ECHR case law,356 this ground for refusal is still only optional and the
before the application ofthe 2009 measure in Italy is regrettable. It would obvicillSJy
have been far better to have provided for proper protection in the first place.
Of course, if the interpretation of the relationship between this measure
human rights protection argued above is correct, then any such
problems can be solved by applying the national or international human
obligations which take priority over the Framework Decision. But to <;;11,>U1<;; J.'<;;!
certainty on these important issues, it would ofcourse have been better to
this interpretation explicitly in the text ofthis Framework Decision, and
in other EU mutual recognition measures.
Finally, is the basic principle ofmutual recognition acceptable? And
EU's approach to mutual recognition, as embodied in particular in the Pramewor
Decision establishing the EAW, correct? Due to the broader imphcations
debate, the answer is considered fully in the conclusions to this chapter.
9.6.1. Movement of evidence
9.6. Pre-trial measures
353 See 11.8 below. 354 See further 9.3,5 above. 355 Ibid.
356 On that case law, see 9.3,1 above.
357 On the movement of evidence in civil cases, see 8.5.4 above.
711Pre-trial measures
.1. Mutual assistance in criminal matters
See further 9.8.1 below,
See Commission 2010 work programme (COM (2010) 135, 31 Mar 2010, Annex Il) and the
Plan on implementing the Stockholm programme (COM (2010) 171,20 Apr 2010).
360 COM (2009) 624, 11 Nov 2009. 361 On this proposal, see 9.6.1.3 below,
ETS 30 and ETS 99. For ratification details, see Appendix I.
ETS 182; for ratification details, see Appendix I. 364 Art 5 of the Convention.
365 Art 2 of the Convention.
core texts on cross-border mutual assistance between judicial authorities
criminal law cases are the 1959 Council of Europe Convention ('the 1959
Convention') on mutual assistance, which all Member States have ratified, and
first Protocol to that Convention (1978), which all but one of the Member
has ratified.r'" A Second Protocol to the Convention, which parallels the
Convention of 2000 (see below) in several respects, was agreed in 2001, but
a minority ofEU Member States have ratified it.363
The 1959 Convention applies to all offences except military offences, and there
no sentencing threshold or double criminality requirement for its use, as there
for extradition treaties, except for search and seizure measures.P'" A judge in
'home State' ofthe prosecution, wanting to obtain evidence or other relevant
J.J.J.,J,LC;J.J.,u which another Member State is 'hosting', must send formal requests
'letters rogatory'), usually via his or her national ministry, to the relevant
rni nictrv of the host Member State, which forwards the request to a national
A judge in the prosecuting State can also request the attendance of a witwho
is residing in another State, but any summons the prosecuting judge
to such a witness unless the witness sets foot in the prosecuting Member
and then disobeys a second summons to appear. If a prosecuting judge
like to contact a potential witness in custody in another Member State,
would-be witness can refuse. There is an exception for political offences and
offences; assistance may also be refused if a requested State considers that
executing a request is 'likely to prejudice the sovereignty, security, ordre publicor
essential interests ofits country'.365 In practice, reservations are also applied
existing international (Council ofEurope) framework. Subsequently the EU
moved towards adopting mutual recognition measures in this area, starting
the Framework Decision on the European Evidence Warrant. Further steps
planned in this field, which are linked to plans for legislation harmonizing
national evidence law, for the purpose of ensuring mutual admissibility of evi-
358 The Commission plans to propose legislation on both issues in 2011,359
issued a Green Paper on both issues in 2009 to prepare these measures.i'" In
meantime, however, a group of Member States tabled an initiative in spring
for a Directive establishing a 'European Investigation Order', which will
repeal or replace most (but not all) existing mutual recognition measures
this area.361
Criminal Law: Mutual Recognition and Criminal Procedure
Further measures in addition to (or instead of) extradition proceedings
necessary before a trial with cross-border aspects takes place. It is obviouslv
sary to trace any relevant evidence or witnesses and ensure that the evi(h~n(:e
be used, or that the witnesses will testify, at the triaL if possible. Sometimes
necessary to issue freezing orders to ensure that property is available for pv,r1c'nr
or for subsequent confiscation. Finally, an important issue for individuals
length of any detention awaiting trial, which risks being longer where
cross-border elements to a case. These three issues will be examined in
710
In order to facilitate the movement ofevidence in criminal cases, 357 the EU
adopted specific and general measures on mutual judicial assistance, vU,J.J."U~~'6'
As for specific human rights issues, the mandatory non-execution ofa "",rr"nt
double jeopardy grounds is welcome, but the merely optional non-execution
offinal judgments and (in some cases) termination of prosecution is objectionabk
in light ofthe Court ofJustice's interpretation ofthe double jeopardy rules.353
absentia exception (which appears in most other mutual recognition measures)
only optional, rather than mandatory, but also fails to take account ofthe Poitn'me,l
line ofjurisprudence ofthe European Court ofHuman Righrs.v" As noted
although the 2009 Framework Decision on this issue brings standards into
ECHR case law,356 this ground for refusal is still only optional and the
before the application ofthe 2009 measure in Italy is regrettable. It would obvicillSJy
have been far better to have provided for proper protection in the first place.
Of course, if the interpretation of the relationship between this measure
human rights protection argued above is correct, then any such
problems can be solved by applying the national or international human
obligations which take priority over the Framework Decision. But to <;;11,>U1<;; J.'<;;!
certainty on these important issues, it would ofcourse have been better to
this interpretation explicitly in the text ofthis Framework Decision, and
in other EU mutual recognition measures.
Finally, is the basic principle ofmutual recognition acceptable? And
EU's approach to mutual recognition, as embodied in particular in the Pramewor
Decision establishing the EAW, correct? Due to the broader imphcations
debate, the answer is considered fully in the conclusions to this chapter.
713Pre-trial measures
.2. European Evidence Warrant
to apply the principle ofmutual recognition to aspects ofthe movement
evidence between Member States, in 2008 the Council adopted a Framework
1-3 of the Protocol; see also Art 4 (confidentiality ofsuch requests).
Arts 1(5) and 2(4). 376 Art 1(3); but the Council can extend the scope (Art 1(6)).
Arts 5-10. Denmark, France, and Latvia have invoked a permitted reservation to limit the
of the political offence exception. 378 Art 10(9) of the Convention.
Executive Committee Decision SCH/Com-ex (93)14 ([2000] OJ L 239/427).
For details of these measures, see the first edition of this book, at 172-173. As regards idenand
tracing of criminal proceeds, see also Art 4 of the Framework Decision on money
([2001] OJ L 182/1). 381 [1998J OJ L 191/1.
12.6.1.1 below.
EU has also adopted a number ofmeasures on mutual assistance as regards
crimes, in particular as regards drug trafficking;"? and in conjunction
a number ofJoint Actions harmonizing substantive criminal law. 380
More
generally, aJoint Action on good practice on mutual assistance requires Member
to deposit statements with the Council Secretariat setting out in detail
intentions to respond to mutual assistance requests from other Member
swiftly and effectively."! and the SIS functions as a practical tool for listing
who or objects which are connected with criminal proceedings.P'"
accounts.:'?" although the first two types of assistance can be subjected to
conditions applicable to search and seizure.?" and the first type can be limited
specific offences.l" More generally, the Protocol contains provisions on: the
obligation of requested authorities to inform the requesting authorities about
investigations; the forwarding of additional requests for mutual assistance;
waiver of banking secrecy in relation to mutual assistance; the abolition
the fiscal offence exception (copying the wording of the First Protocol to
Council of Europe Convention); abolishing the political offence exception
(although Member States may limit this abolition to specific offences); and profor
dispute settlement in the Council or Eurojust in case requests are
UlL'LK.eu on grounds of dual criminality or the remaining reservations under the
assistance Convention.V'
measures allow the prosecuting State to assert its authority de facto over
perscms and evidence in another Member State, albeit indirectly through the
of the requested Member State's authorities. They also simplify the 'border
controls previously slowing down the processing of requests between Member
However, the position of the defendant under these rules is problematic,
is no reference to the right to cross-examine witnesses, and there are
limited minimum standards applicable to cross-border hearings (although
Council has the power to adopt a measure on this subject, which it has not
usedj.?" In fact, for suspects (as well as witnesses), there is no express right
Criminal Law: Mutual Recognition and Criminal Procedure712
regarding double jeopardy.P" The First Protocol to the Convention inter
removes the exception for fiscal offences, although a State can still retain
exemption in part.
As for EU measures, the Schengen Convention contains rules on J--'-".,.'
assistance, which: require Member States to abolish the fiscal offence exception
for excise duties, VAT, and customs duties (if they have not yet ratified the
Protocol to the Council of Europe Convention); widen the scope of procee
ings for which assistance could be requested; allow direct contact between
authorities without ministry intervention; and provide for posting nr."r,Qrl'l1rc
documents directly to persons in other Member States.:"?
Subsequently, to supplement the Council ofEurope measures in order to facilitate
the movement ofevidence between Member States,368 the EU adopted a Conventio
on mutual assistance in 2000 and a Protocol to the EU Convention in
Convention and Protocol are in force in a large majority of Member
The most important criminal law provisions ofthe Convention specify that:
(a) the Schengen provisions on posting documents and contacting other
directly have become the normal rule.?"
(b) the State where the evidence is located must normally comply with
malities and procedures which the home State requests;"!
(c) the home State may request that a State with custody over a person
that person (possibly without his or her consent) to be a witness in
in the home State;372 and
(d) the home State may request a hearing by videoconference with a
expert, or the suspect in the territory of the host State; a summons
a conference will be mandatory for a witness or expert. Member
opt out of the provision for video hearings with the suspect.F'
The 2001 Protocol is primarily concerned with financial crime. It
in turn for assistance relating to requests for information on bank
requests for information on bank transactions, and requests for monitoring
366 See the facts ofthe Miraglia case (C-469/03 [2005] ECR 1-2009).
367 Arts 48-53, Schengen Convention ([2000J OJ L 239).
368 On the practice before the Convention, see the report in [2001] OJ C 216/14.
369 [2000] OJ C 197/1 and [2001] OJ C 326/1. For ratification details, see Appendix
Convention and Protocol generally, see E Denza, 'The 2000 Convention on Mutual
in Criminal Matters' (2003) 40 CMLRev 1047; and D McClean, International Cooperation
and Criminal Matters (2nd edn, OUP, 2002), 224-237. On the policing issues
Convention, see 12.9 below.
371 Art 4.
372 Art 9. Consent is required by Cyprus, the Czech Republic, Denmark,
Germany, Latvia, Poland, and the UK.
373 Art 10; Denmark, France, the Netherlands, Poland, and the UK have opted
sion. See also Art 11, on the hearing of witnesses and experts by telephone. On the
rules applicable in such cases, see Viola v Italy, judgment of 5 Oct 2006.
713Pre-trial measures
.2. European Evidence Warrant
to apply the principle ofmutual recognition to aspects ofthe movement
evidence between Member States, in 2008 the Council adopted a Framework
1-3 of the Protocol; see also Art 4 (confidentiality ofsuch requests).
Arts 1(5) and 2(4). 376 Art 1(3); but the Council can extend the scope (Art 1(6)).
Arts 5-10. Denmark, France, and Latvia have invoked a permitted reservation to limit the
of the political offence exception. 378 Art 10(9) of the Convention.
Executive Committee Decision SCH/Com-ex (93)14 ([2000] OJ L 239/427).
For details of these measures, see the first edition of this book, at 172-173. As regards idenand
tracing of criminal proceeds, see also Art 4 of the Framework Decision on money
([2001] OJ L 182/1). 381 [1998J OJ L 191/1.
12.6.1.1 below.
EU has also adopted a number ofmeasures on mutual assistance as regards
crimes, in particular as regards drug trafficking;"? and in conjunction
a number ofJoint Actions harmonizing substantive criminal law. 380
More
generally, aJoint Action on good practice on mutual assistance requires Member
to deposit statements with the Council Secretariat setting out in detail
intentions to respond to mutual assistance requests from other Member
swiftly and effectively."! and the SIS functions as a practical tool for listing
who or objects which are connected with criminal proceedings.P'"
accounts.:'?" although the first two types of assistance can be subjected to
conditions applicable to search and seizure.?" and the first type can be limited
specific offences.l" More generally, the Protocol contains provisions on: the
obligation of requested authorities to inform the requesting authorities about
investigations; the forwarding of additional requests for mutual assistance;
waiver of banking secrecy in relation to mutual assistance; the abolition
the fiscal offence exception (copying the wording of the First Protocol to
Council of Europe Convention); abolishing the political offence exception
(although Member States may limit this abolition to specific offences); and profor
dispute settlement in the Council or Eurojust in case requests are
UlL'LK.eu on grounds of dual criminality or the remaining reservations under the
assistance Convention.V'
measures allow the prosecuting State to assert its authority de facto over
perscms and evidence in another Member State, albeit indirectly through the
of the requested Member State's authorities. They also simplify the 'border
controls previously slowing down the processing of requests between Member
However, the position of the defendant under these rules is problematic,
is no reference to the right to cross-examine witnesses, and there are
limited minimum standards applicable to cross-border hearings (although
Council has the power to adopt a measure on this subject, which it has not
usedj.?" In fact, for suspects (as well as witnesses), there is no express right
Criminal Law: Mutual Recognition and Criminal Procedure712
regarding double jeopardy.P" The First Protocol to the Convention inter
removes the exception for fiscal offences, although a State can still retain
exemption in part.
As for EU measures, the Schengen Convention contains rules on J--'-".,.'
assistance, which: require Member States to abolish the fiscal offence exception
for excise duties, VAT, and customs duties (if they have not yet ratified the
Protocol to the Council of Europe Convention); widen the scope of procee
ings for which assistance could be requested; allow direct contact between
authorities without ministry intervention; and provide for posting nr."r,Qrl'l1rc
documents directly to persons in other Member States.:"?
Subsequently, to supplement the Council ofEurope measures in order to facilitate
the movement ofevidence between Member States,368 the EU adopted a Conventio
on mutual assistance in 2000 and a Protocol to the EU Convention in
Convention and Protocol are in force in a large majority of Member
The most important criminal law provisions ofthe Convention specify that:
(a) the Schengen provisions on posting documents and contacting other
directly have become the normal rule.?"
(b) the State where the evidence is located must normally comply with
malities and procedures which the home State requests;"!
(c) the home State may request that a State with custody over a person
that person (possibly without his or her consent) to be a witness in
in the home State;372 and
(d) the home State may request a hearing by videoconference with a
expert, or the suspect in the territory of the host State; a summons
a conference will be mandatory for a witness or expert. Member
opt out of the provision for video hearings with the suspect.F'
The 2001 Protocol is primarily concerned with financial crime. It
in turn for assistance relating to requests for information on bank
requests for information on bank transactions, and requests for monitoring
366 See the facts ofthe Miraglia case (C-469/03 [2005] ECR 1-2009).
367 Arts 48-53, Schengen Convention ([2000J OJ L 239).
368 On the practice before the Convention, see the report in [2001] OJ C 216/14.
369 [2000] OJ C 197/1 and [2001] OJ C 326/1. For ratification details, see Appendix
Convention and Protocol generally, see E Denza, 'The 2000 Convention on Mutual
in Criminal Matters' (2003) 40 CMLRev 1047; and D McClean, International Cooperation
and Criminal Matters (2nd edn, OUP, 2002), 224-237. On the policing issues
Convention, see 12.9 below.
371 Art 4.
372 Art 9. Consent is required by Cyprus, the Czech Republic, Denmark,
Germany, Latvia, Poland, and the UK.
373 Art 10; Denmark, France, the Netherlands, Poland, and the UK have opted
sion. See also Art 11, on the hearing of witnesses and experts by telephone. On the
rules applicable in such cases, see Viola v Italy, judgment of 5 Oct 2006.
715Pre-trial measures
European Investigation Order
noted above, in order to implement the objective of creating a cornprehensystem
governing all exchanges of criminal evidence between Member
a group of Member States proposed a Directive to establish a European
Order (EIO) in spring 2010.394 This Directive, if adopted in
form originally proposed, would repeal the Framework Decision on the
European Evidence Warrant, substitute (as regards freezing of evidence) for the
Framework Decision on freezing orders.I" and replace the 'corresponding' EU
Council ofEurope Conventions and Protocols on mutual assistance (includthe
Schengen Convention provisions), as regards relations between participatMember
States.396 It is based on Article 82(1)(a) TFEU,397
The proposed Directive follows the structure of the Framework Decision
establishing the EEW with certain amendments, and with the inclusion of some
the specific rules on mutual assistance set out in the 2000 EU mutual assistConvention
and its Protocol. It would apply to all 'investigative measures'
concept is not defined) with the exception ofjoint investigation teams and
measures relating to telecommunications interception.F" It is not certain
whether the proposal would apply to some issues dealt with in other EU measures,
as the criminal records legislation or the issue of covert investigations.P?"
Jtherwrse the EIO would apply to most of the issues excluded from the EEW,
hearings, bodily examinations, analysing data, and similar actions, along with
obtaining banking data.
The proposal would amount to a 'bonfire' of the key traditional grounds for
ofmutual assistance requests or the EEW, most notably as regards double
jeopardy, dual criminality, and territoriality. This would be the first EU measure
abolish fully the possibility of refusal on any of these grounds, never mind all
together. The abolition of the double jeopardy exception takes no account
other EU rules on this issue and status of this principle in the EU Charter of
Fundamental Rights.f" while the combined abolition ofthe dual criminality and
exceptions means that a person could be subject to home, business,
body searchers for committing an act that was not criminal under the national
All references in this subsection are to this initiative, unless otherwise
395 On this measure, see 9.6.2 below.
Art 29; there is no indication ofwhich provisions are considered to 'correspond'. On the posiof
non-participating Member States and associated non-EU States, see generally 9.2.5 above.
397 On the competence issues, see 9.2.4 above. 398 Art 3.
Recital 9 in the preamble to the initiative states that it does not apply to cross-border police
surveillance, which is regulated by Art 40 of the Schengen Convention (see 12.9.2 below).
4DO See 11.8 below.
proposed safeguards have been dropped. The safeguards proposals reflected the
jurisprudence of the European Court of Human Rights.393
Criminal Law: Mutual Recognition and Criminal Procedure714
Decision establishing a European Evidence Warrant (EEW), which
States must apply by 19January 201p83 The Framework Decision will
to all movement of evidence; rather it is the first stage in a two-stage pr,ocecl,UJ
replacing mutual assistance measures with mutual recognition measures,
it will not apply to evidence which could only be obtained by: the holding
hearings, or similar measures; bodily examination or obtaining bodily
gathering real-time information, for example by intercepting teleOOIT1ITlUn
tions or monitoring bank accounts; analysis of existing documents, ootecrs,
data; or the furnishing of communications data by telecommunications
panies.r" The EEW can only be issued if the evidence sought is necessarv
proportionate and if such evidence could be obtained according to the
law of the issuing State in similar cases; but it will be up to the
alone to judge these issues.P" Detailed procedural safeguards proposed
Commission, such as protections relating to privacy and self-incrirnirrati
were dropped."?
Dual criminality will be abolished for searches and seizures for "",rI,>ne'"
ing within the scope of the Framework Decision, for the standard list
two crimes.i'" The grounds for non-recognition (all optional) include a
EEW, double jeopardy, immunity or privilege, territoriality, and national
rity.:"? As for remedies, they must be available in the executing State, at
regards the exercise of coercive measures, although the substance of
could only be challenged in the issuing State. The issuing State must
edies equivalent to those applicable to purely domestic proceedings,
States have obligations as regards time limits and the facilitation
Next, the Framework Decision contains the standard human rights
the additional proviso that 'any obligations incumbent on judicial authoritie
this respect shall remain unaffected'i'?' Finally, the EEW will not enrirr-lv
traditional mutual assistance measures, but will co-exist with them for
tional period until the second stage ofthe EEW is in place and mutual
measures are fully replaced.i"?
From a human rights perspective, it is unfortunate that the exceptions
execution of foreign decisions will be optional only, and that the Cornmissio'
383 Art 23(1) of the Framework Decision ([2008] OJ L 350/72). All further references in
tion are to this Framework Decision, unless otherwise noted.
384 On the second stage, see the proposal for a European Investigation Order (discussed
385 Art 4(2). 386 Art 7.
387 Art 12 of the Commission's proposal (COM (2003) 688, 14 Nov 2003).
388 Art 14. There is a special rule for Germany, allowing it to maintain dual crirninaliry
further six crimes: see Art 23(4) and the German declaration published in [2008] OJ
the definition of 'search and seizure', see Art 2(e).
390 Art 18.
391 Art 1(3); similar wording appears in the Framework Decision on the execution
orders (see 9.7.4 below). 392 Art 21 and recital 25 in the
715Pre-trial measures
European Investigation Order
noted above, in order to implement the objective of creating a cornprehensystem
governing all exchanges of criminal evidence between Member
a group of Member States proposed a Directive to establish a European
Order (EIO) in spring 2010.394 This Directive, if adopted in
form originally proposed, would repeal the Framework Decision on the
European Evidence Warrant, substitute (as regards freezing of evidence) for the
Framework Decision on freezing orders.I" and replace the 'corresponding' EU
Council ofEurope Conventions and Protocols on mutual assistance (includthe
Schengen Convention provisions), as regards relations between participatMember
States.396 It is based on Article 82(1)(a) TFEU,397
The proposed Directive follows the structure of the Framework Decision
establishing the EEW with certain amendments, and with the inclusion of some
the specific rules on mutual assistance set out in the 2000 EU mutual assistConvention
and its Protocol. It would apply to all 'investigative measures'
concept is not defined) with the exception ofjoint investigation teams and
measures relating to telecommunications interception.F" It is not certain
whether the proposal would apply to some issues dealt with in other EU measures,
as the criminal records legislation or the issue of covert investigations.P?"
Jtherwrse the EIO would apply to most of the issues excluded from the EEW,
hearings, bodily examinations, analysing data, and similar actions, along with
obtaining banking data.
The proposal would amount to a 'bonfire' of the key traditional grounds for
ofmutual assistance requests or the EEW, most notably as regards double
jeopardy, dual criminality, and territoriality. This would be the first EU measure
abolish fully the possibility of refusal on any of these grounds, never mind all
together. The abolition of the double jeopardy exception takes no account
other EU rules on this issue and status of this principle in the EU Charter of
Fundamental Rights.f" while the combined abolition ofthe dual criminality and
exceptions means that a person could be subject to home, business,
body searchers for committing an act that was not criminal under the national
All references in this subsection are to this initiative, unless otherwise
395 On this measure, see 9.6.2 below.
Art 29; there is no indication ofwhich provisions are considered to 'correspond'. On the posiof
non-participating Member States and associated non-EU States, see generally 9.2.5 above.
397 On the competence issues, see 9.2.4 above. 398 Art 3.
Recital 9 in the preamble to the initiative states that it does not apply to cross-border police
surveillance, which is regulated by Art 40 of the Schengen Convention (see 12.9.2 below).
4DO See 11.8 below.
proposed safeguards have been dropped. The safeguards proposals reflected the
jurisprudence of the European Court of Human Rights.393
Criminal Law: Mutual Recognition and Criminal Procedure714
Decision establishing a European Evidence Warrant (EEW), which
States must apply by 19January 201p83 The Framework Decision will
to all movement of evidence; rather it is the first stage in a two-stage pr,ocecl,UJ
replacing mutual assistance measures with mutual recognition measures,
it will not apply to evidence which could only be obtained by: the holding
hearings, or similar measures; bodily examination or obtaining bodily
gathering real-time information, for example by intercepting teleOOIT1ITlUn
tions or monitoring bank accounts; analysis of existing documents, ootecrs,
data; or the furnishing of communications data by telecommunications
panies.r" The EEW can only be issued if the evidence sought is necessarv
proportionate and if such evidence could be obtained according to the
law of the issuing State in similar cases; but it will be up to the
alone to judge these issues.P" Detailed procedural safeguards proposed
Commission, such as protections relating to privacy and self-incrirnirrati
were dropped."?
Dual criminality will be abolished for searches and seizures for "",rI,>ne'"
ing within the scope of the Framework Decision, for the standard list
two crimes.i'" The grounds for non-recognition (all optional) include a
EEW, double jeopardy, immunity or privilege, territoriality, and national
rity.:"? As for remedies, they must be available in the executing State, at
regards the exercise of coercive measures, although the substance of
could only be challenged in the issuing State. The issuing State must
edies equivalent to those applicable to purely domestic proceedings,
States have obligations as regards time limits and the facilitation
Next, the Framework Decision contains the standard human rights
the additional proviso that 'any obligations incumbent on judicial authoritie
this respect shall remain unaffected'i'?' Finally, the EEW will not enrirr-lv
traditional mutual assistance measures, but will co-exist with them for
tional period until the second stage ofthe EEW is in place and mutual
measures are fully replaced.i"?
From a human rights perspective, it is unfortunate that the exceptions
execution of foreign decisions will be optional only, and that the Cornmissio'
383 Art 23(1) of the Framework Decision ([2008] OJ L 350/72). All further references in
tion are to this Framework Decision, unless otherwise noted.
384 On the second stage, see the proposal for a European Investigation Order (discussed
385 Art 4(2). 386 Art 7.
387 Art 12 of the Commission's proposal (COM (2003) 688, 14 Nov 2003).
388 Art 14. There is a special rule for Germany, allowing it to maintain dual crirninaliry
further six crimes: see Art 23(4) and the German declaration published in [2008] OJ
the definition of 'search and seizure', see Art 2(e).
390 Art 18.
391 Art 1(3); similar wording appears in the Framework Decision on the execution
orders (see 9.7.4 below). 392 Art 21 and recital 25 in the
9.6.1.4. Criminal records
717Pre-trial measures
See respectively 9.7.2, 9.7.3, and 11.8 below. EU free movement law also contains provisions
the exchange ofpolice records (see 7.4.1 above).
Art 13 of the Convention. Five Member States have reservations on this clause.
Art 22 of the Convention. Eight Member States have reservations on this clause.
Art 4 ofthe First Protocol. The UK and Ireland have reservations on this clause.
[20051 OJ L 322/33. The Decision applied from 21 May 2006 (Art 7).
415 COM (2005) 10, 25 Jan 2005.
disqualifications following a criminal conviction, and to the double jeopardy
pnncrple, and can also affect a person's position in other respects as set out in
national law (the increased possibility of pre-trial detention and different rules
trial procedure and enforcement of a sentence)."?
The Council of Europe's mutual assistance Convention provides that a
request:ed State shall send extracts from its judicial records to a requesting State, to
same extent as it complies with requests from its own authorities. Otherwise,
request shall be complied with in accordance with the requested State's law."!
Convention also provides that all its Contracting Parties will inform the
Contracting Parties at least once a year of all criminal convictions and
)$\lb~;e(lW~nt measures concerning the latter's nationals which are entered into the
record.t" The First Protocol to the Convention supplements the latter
by providing that further information on these convictions must be proon
request.'!"
In order to speed up the transfer of information from criminal records, the
Council adopted, as an interim measure, a Decision in 2005 which sets out
form and detailed rules regarding sending requests for information
convictions and requires immediate transmission of information regarding
COIGV:lCtlOflS of nationals of other Member States."!" Member States had to withany
reservations to the Council of Europe Convention on the first issue,
could retain them on the latter issue.
both the mutual recognition programme and the Hague programme called
hw,or'pr measures to enhance the exchange of information on criminal conthe
Commission had released in the meantime a White Paper on the
in early 2005.415
This White Paper pinpointed difficulties in rapidly identiMember
States where individuals have already been convicted, obtaining
information quickly and by a simple procedure, and in understanding the inforprovided.
To address these issues, the Commission suggested a two-stage
In the first stage, a European index of offenders would be established,
order to make it easier to identify which Member States a person had been
convicted in. In a second stage, a standard format would be used to exchange
detailed information about the convictions.
response to the White Paper, the JHA Council agreed in April 2005 that
on EU citizens would instead be exchanged bilaterally between
States, with an index of offenders used only as regards non-EU
Criminal Law: Mutual Recognition and Criminal Procedure716
One aspect of mutual assistance that has received special attention from the-E
in recent years is the exchange ofinformation concerning criminal records.T
is due to a concerted attempt to increase the effectiveness ofthe rules concerni
the exchange ofthis information. It should also be kept in mind that
linked to other EU legislation on taking account of prior convictions,
law of the place where it was committed. This is fundamentally objectionabli
from the point ofview ofhuman rights principles or national sovereizntv.v''
Furthermore, the EIO Directive would also remove a number ofsundry ot
restrictions or safeguards which currently apply to the EEW or mutual assista
measures: the requirements that the issue of EEWs must be proportionate,a
could only be issued ifsuch as documents, could also be obtained in the issui
State under its law (if they had been present there) would be dropped; theda
protection clause in the EEW Framework Decision would be dropped;4Q2t
flexibility of the executing Member State not to carry out coercive measur
and the possibility of applying a validation procedure where the order wasn
issued by a judge, (ie was issued by a police officer) would be dropped;40J)tfJ.
rules relating to remedies would be significantly weakened.?" the possibil#
of videoconferences with suspects would no longer be subject to an expr
protection for human rights, and the requested Member State would no Ion
have a blanket power to refuse these requests.r" many restrictions relating:e
controlled deliveries (ie 'sting' operations by police or customs officers) wcru'l
be dropped."?" and certain restrictions concerning bank information would
dropped.?"
These changes would be counterbalanced only by the addition ofa single se
tence to the briefreference to the human rights safeguards in the EEW Framewo
Decision, referring to constitutional protection for freedom of expression;4Q8P
the reasons set out elsewhere in this chapter.f" these vague provisions do
provide sufficient protection, at least in the absence of clarification from
Court ofJustice.
401 See the comments in 11.6 below.
402 Art 10 ofthe EEW Framework Decision. It is possible that Art 23 ofthe 2000 EU Convenrio
on this subject (n 369 above), or the EU's 2008 Framework Decision on personal data protection
12.6.4 below), would apply instead, but the proposed Directive does not mention
403 See Arts 11 and 12, EEW Framework Decision.
404 Compare Art 13 of the EIO proposal to Art 18 of the EEW Framework Decisi.on;
that evidence transfers could be suspended pending appeal (Art 11(5), EEW Framework
would also be dropped.
405 Compare Art 21(10) ofthe EIO proposal to Art 10(9), 2000 Convention.
406 Compare Art 26 of the EIO proposal to Art 12, 2000 Convention.
407 Compare Arts 23-25 of the EIO proposal to Arts 1(5), 2(4), and 3(3), 2001
EU Convention.
409 See 9.3.5 and 9.5.2 above.
717Pre-trial measures
See respectively 9.7.2, 9.7.3, and 11.8 below. EU free movement law also contains provisions
exchange of police records (see 7,4.1 above).
Art 13 of the Convention. Five Member States have reservations on this clause.
Art 22 of the Convention. Eight Member States have reservations on this clause.
Art 4 ofthe First Protocol. The UK and Ireland have reservations on this clause.
[2005] OJ L 322/33. The Decision applied from 21 May 2006 (Art 7).
COM (2005) 10, 25 Jan 2005.
disqualifications following a criminal conviction, and to the double jeopardy
and can also affect a person's position in other respects as set out in
law (the increased possibility of pre-trial detention and different rules
trial procedure and enforcement of a sentence)."?
The Council of Europe's mutual assistance Convention provides that a
State shall send extracts from its judicial records to a requesting State, to
same extent as it complies with requests from its own authorities. Otherwise,
request shall be complied with in accordance with the requested State's law."!
Convention also provides that all its Contracting Parties will inform the
Contracting Parties at least once a year of all criminal convictions and
suibs(~qllellt measures concerning the latter's nationals which are entered into the
J,",~"~."a" record.i" The First Protocol to the Convention supplements the latter
by providing that further information on these convictions must be proon
request.":'
order to speed up the transfer of information from criminal records, the
Council adopted, as an interim measure, a Decision in 2005 which sets out
standard form and detailed rules regarding sending requests for information
convictions and requires immediate transmission of information regarding
convictions of nationals of other Member States.'!" Member States had to withany
reservations to the Council of Europe Convention on the first issue,
could retain them on the latter issue.
both the mutual recognition programme and the Hague programme called
measures to enhance the exchange of information on criminal con.
the Comm~ssion had released in the meantime a White Paper on the
m early 2005.410 This White Paper pinpointed difficulties in rapidly identiMember
States where individuals have already been convicted, obtaining
quickly and by a simple procedure, and in understanding the inforprovided.
To address these issues, the Commission suggested a two-stage
In the first stage, a European index of offenders would be established
to make it easier to identify which Member States a person had been
:oDLvi(:ted. in. In a second stage, a standard format would be used to exchange
information about the convictions.
response to the White Paper, the ]HA Council agreed in April 2005 that
on ED citizens would instead be exchanged bilaterally between
States, with an index of offenders used only as regards norr-EU
Criminal Law: Mutual Recognition and Criminal Procedure
401 See the comments in 11.6 below.
402 Art 10 of the EEW Framework Decision. It is possible that Art 23 ofthe 2000 EU Ccmv.ennor
on this subject (n 369 above), or the EU's 2008 Framework Decision on personal data protectlOn
12.6,4 below), would apply instead, but the proposed Directrve does not mention this.
403 See Arts 11 and 12, EEW Framework Decision.
404 Compare Art 13 of the ElO proposal to Art 18 of the EEW Framework Decision; the
that evidence transfers could be suspended pending appeal (Art 11(5), EEW Framework Decision}
would also be dropped. .
40S Compare Art 21(10) of the ElO proposal to Art 10(9), 2000 Conventlon.
406 Compare Art 26 of the EIO proposal to Art 12, 2000 Convention.
407 Compare Arts 23-25 of the EIO proposal to Arts 1(5), 2(4), and 3(3), 2001 Protocol to
. 40S Art
EU ConventlOn.
409 See 9.3.5 and 9.5.2 above.
9.6.1.4. Criminal records
One aspect of mutual assistance that has received special attention from
in recent years is the exchange ofinformation concerning criminal records.
is due to a concerted attempt to increase the effectiveness ofthe rules concernin
the exchange of this information. It should also be kept in mind that this
linked to other ED legislation on taking account of prior convictions, the
law of the place where it was committed. This is fundamentally objectioIlilpl
from the point of view of human rights principles or national sovereignty.4
01
Furthermore, the BIO Directive would also remove a number ofsundry o~~
restrictions or safeguards which currently apply to the EEW or mutual assista~c
measures: the requirements that the issue of EEWs must be proportionate, a.
could only be issued if such as documents, could also be obtamed m the ISSUI
State under its law (if they had been present there) would be dropped; thed
protection clause in the EEW Framework Decision would be dropped;4
0
2 J
flexibility of the executing Member State not to carry out coercive measure
and the possibility of applying a validation procedure where the order wasp.
issued by a judge, (ie was issued by a police officer) would be dropped;
400th
d 404 h ibili
rules relating to remedies would be significantly weakene; t e POSSI ut
of videoconferences with suspects would no longer be subject to an expre
P
rotection for human rights, and the requested Member State would no long
~ .' I t
have a blanket power to refuse these requests; many restnctIOns re a mg
controlled deliveries (ie 'sting' operations by police or customs officers) woul
be dropped;406 and certain restrictions concerning bank information wouldb
dropped.407
These changes would be counterbalanced only by the addition ofa single
tence to the briefreference to the human rights safeguards in the EEW
Decision, referring to constitutional protection for freedom of expression.
the reasons set out elsewhere in this chapter,'" these vague provisions
provide sufficient protection, at least in the absence of clarifICation
Court of]ustice.
716
719Pre-trial measures
Freezing orders
[2010] OJ C 115, point 4.2.3. See also the plans for a police records index (12.6.3 below).
COM (2010) 171,20 Apr 2010.
Arts 11 and 12 ofthe Convention (ETS 141). See now Arts 21 and 22 ofthe replacement 2005
of Europe Convention on the same issue (CETS 198), which has been ratified by only a
ofMember States (see Appendix 1for ratification details).
Art 18 of the 1990 Convention and Art 28 ofthe 2005 Convention, both ibid.
Art 4 ofthe 2001 Framework Decision on money laundering ([2001] OJ L 182/1); Art 3 ofthe
Action on this subject was identical ([1998] OJ L 333/1). See further 9.7.4 below.
[2003] OJ L 196/45. Member States had to comply by 2 Aug 2005 (Art 14(1)).
Art 2(a). 436 On this issue, see further 9.7.4 below.
3(1) and 10. On these rules, see 9.6.1 above. 438 Art 5(1). 439 Art 3(2).
for the future, the Stockholm programme calls for: Member States to irnpleent
ECRIS as soon as possible; the Commission to assess whether networkg
criminal records will prevent offences from being committed, and whether
RIS can be extended to include supervision measures; and the Commission
propose legislation to establish a register of the criminal convictions of thirduntry
nationals in Member States' courts."? The action plan on implementan
of the programme provides for a legislative proposal on the latter point
d proposals for measures implementing ECRIS in 2011, and an evaluation of
and its possible extension in 2014.430
enforcement of foreign freezing orders is governed first of all by the 1990
puncil ofEurope Convention on the proceeds ofcrime, ratified by all Member
ates, which requires States to enforce orders freezing the proceeds of crime
ued by other signatory States.?! However, the obligation is subject to many
ssible grounds for refusal.r"
Initially, EU measures in this area were confined to an obligation to give freezgrequests
from other Member States equal priority with domestic requests.f"
t subsequently freezing orders were the subject ofthe EU's second Framework
ecision concerning mutual recognition in criminal matters.!" The Framework
ecision applies to orders issued by 'judicial authorities' (as defined by the issuing
tate) in the framework of criminal proceedings.t" not only to freeze criminal
sets (the subject of the 1990 Council of Europe Convention), for the purpose
(their subsequent confiscation.f" but also orders concerning the freezing of
idence, for the purpose of subsequent transfer to the issuing State pursuant to
utual assistance rules.P?
Member States must recognize and execute the freezing order of another
ember State, subject only to the most limited list ofgrounds for non-recognition
pearing in any EU measure to date.i" In particular, dual criminality is abolfor
the standard list of thirty-two crimes.":" However, where a freezing
relates to subsequent confiscation (as distinct from securing evidence),
Criminal Law: Mutual Recognition and Criminal Procedure718
nationals.t" The Commission subsequently proposed a Framework
concerning the exchange ofinformation on EU citizens' criminal ".-'.VLU',
the Council adopted in 2009, alongside an implementing Decision."?
States are obliged to apply these measures by 7 and 27 April 2012;418 on
date, the prior EU Decision is repealed and the Framework Decision will
some of the relevant Council ofEurope measures in relations between
States."?
This Framework Decision repeats the obligation in the 2005 Decision
Member State to send to each other Member State information on
nal convictions of nationals of those other States as soon as possible,
this to cases where the person concerned is a dual national of the ~~ .;_,,;
Member State."? This information must be stored in the system establisher
the Framework Decision for possible further transmission.t'" and the LL;H1JlCVI
Decision elaborates upon the process of sending and replying to request;
information on criminal convictions.v" There are specific rules on personal
protection.v" The criminal record information is to be exchanged
ard format.t-" which was established by the Council in the parallel
establishing a European Criminal Records Information System \DL,1'd0).
ECRIS is not an EU-wide database; nor does it give any Member
authorities access to the criminal records database of other Member
Instead, the 2009 Decision establishes the standard format for the supply
nal records information which might be exchanged pursuant to the
Decision, by means of common codes indicating generally the type
and type ofpenalty imposed on the person concerned.t"
A subsequent proposal from the Commission suggests further rules
records, including a derogation from the 2009 Framework Decision,
specific sexual offences against children."? Regarding the criminal
third-country nationals, the Commission has so far issued a discussion
the feasibility of establishing an index oftheir convictions.f"
416 See JHA Council press release, 14 Apr 2005. 417 [2009] OJ L 93/23 and 33.
418 Art 13 of the Framework Decision and Art 8 ofthe 2009 Decision.
419 Art 12 of the Framework Decision. More precisely, Art 22 of the Council
assistance Convention and Art 4 ofthe First Protocol to the Convention are replaced,
ofthat Convention remains in force, with a continued waiver ofMember States' reservations,
42() Art 4, Framework Decision; compare to Art 2 ofthe 2005 Decision. Art 4(4) ofthe
Decision incorporates Art 4 ofthe First Protocol to the Council ofEurope Convention.
421 Art 5, Framework Decision.
422 Arts 6-8, Framework Decision; compare to Art 3 of the 2005 Decision.
423 Art 9, Framework Decision; compare to Art 4 of the 2005 Decision.
424 Art 11, Framework Decision.
425 Art 3 of the 2009 Decision. On such forms ofinformation exchange, see
426 Art 4 of the Decision.
427 COM (2010) 94, 29 Mar 2010, Art 10. On the issue ofdisqualifications, see
428 COM (2006) 359, 4 July 2006.
719Pre-trial measures
Freezing orders
[2010] OJ C 115, point 4.2.3. See also the plans for a police records index (12.6.3 below).
COM (2010) 171,20 Apr 2010.
Arts 11 and 12 ofthe Convention (ETS 141). See now Arts 21 and 22 ofthe replacement 2005
of Europe Convention on the same issue (CETS 198), which has been ratified by only a
ofMember States (see Appendix 1for ratification details).
Art 18 of the 1990 Convention and Art 28 ofthe 2005 Convention, both ibid.
Art 4 ofthe 2001 Framework Decision on money laundering ([2001] OJ L 182/1); Art 3 ofthe
Action on this subject was identical ([1998] OJ L 333/1). See further 9.7.4 below.
[2003] OJ L 196/45. Member States had to comply by 2 Aug 2005 (Art 14(1)).
Art 2(a). 436 On this issue, see further 9.7.4 below.
3(1) and 10. On these rules, see 9.6.1 above. 438 Art 5(1). 439 Art 3(2).
for the future, the Stockholm programme calls for: Member States to irnpleent
ECRIS as soon as possible; the Commission to assess whether networkg
criminal records will prevent offences from being committed, and whether
RIS can be extended to include supervision measures; and the Commission
propose legislation to establish a register of the criminal convictions of thirduntry
nationals in Member States' courts."? The action plan on implementan
of the programme provides for a legislative proposal on the latter point
d proposals for measures implementing ECRIS in 2011, and an evaluation of
and its possible extension in 2014.430
enforcement of foreign freezing orders is governed first of all by the 1990
puncil ofEurope Convention on the proceeds ofcrime, ratified by all Member
ates, which requires States to enforce orders freezing the proceeds of crime
ued by other signatory States.?! However, the obligation is subject to many
ssible grounds for refusal.r"
Initially, EU measures in this area were confined to an obligation to give freezgrequests
from other Member States equal priority with domestic requests.f"
t subsequently freezing orders were the subject ofthe EU's second Framework
ecision concerning mutual recognition in criminal matters.!" The Framework
ecision applies to orders issued by 'judicial authorities' (as defined by the issuing
tate) in the framework of criminal proceedings.t" not only to freeze criminal
sets (the subject of the 1990 Council of Europe Convention), for the purpose
(their subsequent confiscation.f" but also orders concerning the freezing of
idence, for the purpose of subsequent transfer to the issuing State pursuant to
utual assistance rules.P?
Member States must recognize and execute the freezing order of another
ember State, subject only to the most limited list ofgrounds for non-recognition
pearing in any EU measure to date.i" In particular, dual criminality is abolfor
the standard list of thirty-two crimes.":" However, where a freezing
relates to subsequent confiscation (as distinct from securing evidence),
Criminal Law: Mutual Recognition and Criminal Procedure718
nationals.t" The Commission subsequently proposed a Framework
concerning the exchange ofinformation on EU citizens' criminal ".-'.VLU',
the Council adopted in 2009, alongside an implementing Decision."?
States are obliged to apply these measures by 7 and 27 April 2012;418 on
date, the prior EU Decision is repealed and the Framework Decision will
some of the relevant Council ofEurope measures in relations between
States."?
This Framework Decision repeats the obligation in the 2005 Decision
Member State to send to each other Member State information on
nal convictions of nationals of those other States as soon as possible,
this to cases where the person concerned is a dual national of the ~~ .;_,,;
Member State."? This information must be stored in the system establisher
the Framework Decision for possible further transmission.t'" and the LL;H1JlCVI
Decision elaborates upon the process of sending and replying to request;
information on criminal convictions.v" There are specific rules on personal
protection.v" The criminal record information is to be exchanged
ard format.t-" which was established by the Council in the parallel
establishing a European Criminal Records Information System \DL,1'd0).
ECRIS is not an EU-wide database; nor does it give any Member
authorities access to the criminal records database of other Member
Instead, the 2009 Decision establishes the standard format for the supply
nal records information which might be exchanged pursuant to the
Decision, by means of common codes indicating generally the type
and type ofpenalty imposed on the person concerned.t"
A subsequent proposal from the Commission suggests further rules
records, including a derogation from the 2009 Framework Decision,
specific sexual offences against children."? Regarding the criminal
third-country nationals, the Commission has so far issued a discussion
the feasibility of establishing an index oftheir convictions.f"
416 See JHA Council press release, 14 Apr 2005. 417 [2009] OJ L 93/23 and 33.
418 Art 13 of the Framework Decision and Art 8 ofthe 2009 Decision.
419 Art 12 of the Framework Decision. More precisely, Art 22 of the Council
assistance Convention and Art 4 ofthe First Protocol to the Convention are replaced,
ofthat Convention remains in force, with a continued waiver ofMember States' reservations,
42() Art 4, Framework Decision; compare to Art 2 ofthe 2005 Decision. Art 4(4) ofthe
Decision incorporates Art 4 ofthe First Protocol to the Council ofEurope Convention.
421 Art 5, Framework Decision.
422 Arts 6-8, Framework Decision; compare to Art 3 of the 2005 Decision.
423 Art 9, Framework Decision; compare to Art 4 of the 2005 Decision.
424 Art 11, Framework Decision.
425 Art 3 of the 2009 Decision. On such forms ofinformation exchange, see
426 Art 4 of the Decision.
427 COM (2010) 94, 29 Mar 2010, Art 10. On the issue ofdisqualifications, see
428 COM (2006) 359, 4 July 2006.
721Pre-trial measures
Recognition of pre-trial supervision orders
447 See 9.5.2 above. 448 See 9.6.1.3 above.
449 See generally 9.7.4 below, the communication on proceeds of crime (COM (2008) 766,
Nov 2008), and the action plan to implement the Stockholm programme (COM (2010) 171,
Apr 2010).
450 See Annex 3 to the annex to the Commission Green Paper on pre-trial supervision orders
pC (2004) 1046, 17 Aug 2004). 451 See 9.5.2 above.
4f' See 9.4 above and Case C-297/09 X, withdrawn.
4S1 [2009] OJ L 294120, Art 27(1). See also rhe earlier Commission Green Paper on this issue
M (2004) 562, 17 Aug 2004). All subsequent references in this subsection are to this Framework
unless otherwise noted. 454 See 9.7.6 below.
2(2). 456 See Art 5(3) ECHR.
Art 5. See also points 16 and 17 in the preamble. 458 Art 3.
is evidence that foreigners suspected of committing a crime are kept in
tention while awaiting trial in cases where nationals suspected of committing
e same crime would not be,"" because ofthe greater difficulty in ensuring that
feigners will attend the trial and serve any criminal sentence which may be
posed. This difficulty was first of all reduced significantly with the applicapn
of the EAW,451 and it is arguable that discriminatory detention of citizens
f other Member States breaches EU free movement law.452 The issue is now
dressed by a Framework Decision adopted in 2009, which Member Sates must
plement by 1 December 2012.453 Unusually, there is no previous international
easure addressing the same issues as this Framework Decision. This measure
q\Jld overlap in some cases with the proposed Directive establishing a European
r()tection order.454
The Framework Decision specifies that it does not confer a right to pre-trial
ease; this issue is left to national law.f" Implicitly the Framework Decision does
tharrnonize national law as regards when a person can or must receive bail (for
ample in light of the seriousness of the particular offences alleged, the prior
haviour or criminal record of the person concerned, and the risk of abscond),
or of any conditions that can or must be attached to bai1.456 It includes a
a.ndard human rights provision.t'" along with a novel provision specifying that
does not alter national responsibilities as regards 'the protection of victims,
~ general public and the safeguarding ofinternal security, in accordance with'
ticle 33 ofthe prior TEU (now Article 72 TFEU).458 The Framework Decision
complaints regarding non-recognition on human rights grounds
be rejected for the reasons set out above."?
As for the future, this Framework Decision would be replaced, as regards the
of evidence, by the proposed European Investigation Order, discussed
448 As regards freezing of assets, it would be replaced by plans to propose
legislation on this topic in 2011.449
Criminal Law: Mutual Recognition and Criminal Procedure720
a broader dual criminality condition can be applied, to require that an act
tute an offence to which afreezing order couldapply in both States.r'" Other
(all optional) for non-execution are a defective freezing certificate, an imrnuni
or privilege under the executing State's law, or where it is 'instantly clear'
the certificate that the subsequent rendering ofjudicial assistance would
the double jeopardy principle."! An executing Member State may also set
limit for freezing the property."?
The Framework Decision includes the same human rights provisions
Framework Decision establishing the EAW,443 so these provisions presuma
must be interpreted the same way.?" Also, this Framework Decision provides
remedies to be exercised in either the issuing or executing State. Althought
substantive reasons for the freezing can only be challenged in the issuing Sta
both States are obliged to facilitate access to remedies and the issuing State
obliged to set time limits that guarantee access to an effective legal remedy.t"!
According to a Commission report on the application of this Framewq
Decision, eight Member States had not yet applied it by October 2008.446 T
Commission report claims inter alia that some Member States made errors
regards abolition of dual criminality, reimbursement, and contact betwe
judicial authorities, and that fourteen Member States provide for forbidd
grounds for non-execution (in particular concerning human rights). Over
the Commission concluded that application ofthe Framework Decision was'
satisfactory', due to the limited number ofnotifications and the 'numerous oll1i
sions and limitations' in the laws which had been notified.
This measure is subject to the same objections that apply to other EU mu
recognition measures, a fortiori because there are so few grounds for
execution (in particular, there are no grounds for refusing execution on
of in absentia judgments and extraterritoriality), and because they are all
Furthermore, the double jeopardy provision is weak, because it is highly
that it will be evident from the certificate connected to the freezing
the double jeopardy principle is infringed; this will only be evident
further communication between the issuing and executing authorities,
subsequent objections by the suspects. If freezing orders apply beyond
period for a trial to take place within a 'reasonable time', as required by
6 ECHR, it is arguable that they should no longer be executed; it is
nate that the Framework Decision does not set out this principle expressly,
440 Art 3(4).
441 Art 7. There are also some limited grounds for postponement of execution (Art 8).
442 Art 6(2). 443 See clause 6 of the preamble and Art 1, second line.
444 See 9.5.2 above. 445 Art 11.
446 COM (2008) 885, 22 Dec 2008. According to a later update by the Council Secretariat,
Member States (Italy, Portugal, Greece, and Luxembourg) had not yet implemented this
and two (the UK and Cyprus) had only partly implemented it by spring 2009 (Council doe
29 Apr 2009). The UK subsequently fully implemented it (Council doc 5254/10, 12 Jan
721Pre-trial measures
Recognition of pre-trial supervision orders
447 See 9.5.2 above. 448 See 9.6.1.3 above.
449 See generally 9.7.4 below, the communication on proceeds of crime (COM (2008) 766,
Nov 2008), and the action plan to implement the Stockholm programme (COM (2010) 171,
Apr 2010).
450 See Annex 3 to the annex to the Commission Green Paper on pre-trial supervision orders
pC (2004) 1046, 17 Aug 2004). 451 See 9.5.2 above.
4f' See 9.4 above and Case C-297/09 X, withdrawn.
4S1 [2009] OJ L 294120, Art 27(1). See also rhe earlier Commission Green Paper on this issue
M (2004) 562, 17 Aug 2004). All subsequent references in this subsection are to this Framework
unless otherwise noted. 454 See 9.7.6 below.
2(2). 456 See Art 5(3) ECHR.
Art 5. See also points 16 and 17 in the preamble. 458 Art 3.
is evidence that foreigners suspected of committing a crime are kept in
tention while awaiting trial in cases where nationals suspected of committing
e same crime would not be,"" because ofthe greater difficulty in ensuring that
feigners will attend the trial and serve any criminal sentence which may be
posed. This difficulty was first of all reduced significantly with the applicapn
of the EAW,451 and it is arguable that discriminatory detention of citizens
f other Member States breaches EU free movement law.452 The issue is now
dressed by a Framework Decision adopted in 2009, which Member Sates must
plement by 1 December 2012.453 Unusually, there is no previous international
easure addressing the same issues as this Framework Decision. This measure
q\Jld overlap in some cases with the proposed Directive establishing a European
r()tection order.454
The Framework Decision specifies that it does not confer a right to pre-trial
ease; this issue is left to national law.f" Implicitly the Framework Decision does
tharrnonize national law as regards when a person can or must receive bail (for
ample in light of the seriousness of the particular offences alleged, the prior
haviour or criminal record of the person concerned, and the risk of abscond),
or of any conditions that can or must be attached to bai1.456 It includes a
a.ndard human rights provision.t'" along with a novel provision specifying that
does not alter national responsibilities as regards 'the protection of victims,
~ general public and the safeguarding ofinternal security, in accordance with'
ticle 33 ofthe prior TEU (now Article 72 TFEU).458 The Framework Decision
complaints regarding non-recognition on human rights grounds
be rejected for the reasons set out above."?
As for the future, this Framework Decision would be replaced, as regards the
of evidence, by the proposed European Investigation Order, discussed
448 As regards freezing of assets, it would be replaced by plans to propose
legislation on this topic in 2011.449
Criminal Law: Mutual Recognition and Criminal Procedure720
a broader dual criminality condition can be applied, to require that an act
tute an offence to which afreezing order couldapply in both States.r'" Other
(all optional) for non-execution are a defective freezing certificate, an imrnuni
or privilege under the executing State's law, or where it is 'instantly clear'
the certificate that the subsequent rendering ofjudicial assistance would
the double jeopardy principle."! An executing Member State may also set
limit for freezing the property."?
The Framework Decision includes the same human rights provisions
Framework Decision establishing the EAW,443 so these provisions presuma
must be interpreted the same way.?" Also, this Framework Decision provides
remedies to be exercised in either the issuing or executing State. Althought
substantive reasons for the freezing can only be challenged in the issuing Sta
both States are obliged to facilitate access to remedies and the issuing State
obliged to set time limits that guarantee access to an effective legal remedy.t"!
According to a Commission report on the application of this Framewq
Decision, eight Member States had not yet applied it by October 2008.446 T
Commission report claims inter alia that some Member States made errors
regards abolition of dual criminality, reimbursement, and contact betwe
judicial authorities, and that fourteen Member States provide for forbidd
grounds for non-execution (in particular concerning human rights). Over
the Commission concluded that application ofthe Framework Decision was'
satisfactory', due to the limited number ofnotifications and the 'numerous oll1i
sions and limitations' in the laws which had been notified.
This measure is subject to the same objections that apply to other EU mu
recognition measures, a fortiori because there are so few grounds for
execution (in particular, there are no grounds for refusing execution on
of in absentia judgments and extraterritoriality), and because they are all
Furthermore, the double jeopardy provision is weak, because it is highly
that it will be evident from the certificate connected to the freezing
the double jeopardy principle is infringed; this will only be evident
further communication between the issuing and executing authorities,
subsequent objections by the suspects. If freezing orders apply beyond
period for a trial to take place within a 'reasonable time', as required by
6 ECHR, it is arguable that they should no longer be executed; it is
nate that the Framework Decision does not set out this principle expressly,
440 Art 3(4).
441 Art 7. There are also some limited grounds for postponement of execution (Art 8).
442 Art 6(2). 443 See clause 6 of the preamble and Art 1, second line.
444 See 9.5.2 above. 445 Art 11.
446 COM (2008) 885, 22 Dec 2008. According to a later update by the Council Secretariat,
Member States (Italy, Portugal, Greece, and Luxembourg) had not yet implemented this
and two (the UK and Cyprus) had only partly implemented it by spring 2009 (Council doe
29 Apr 2009). The UK subsequently fully implemented it (Council doc 5254/10, 12 Jan
723Post-trial measures
9.7. Post-trial measures
Enforcement of sentences
21, referring to Art 2(1) of the Framework Decision establishing the EAW ([2002] OJ L
468 See 9.8.2 below.
For a detailed analysis ofpost-trial mutual recognition issues, particularly as regards recogni_£,_
•••• _."_1 sentences, see the Commission's Green Paper on criminal sanctions (COM (2004)
Apr 2004), particularly at 23-25, 34-46, and 57-68.
On double jeopardy, see 11.8 below.
Council ofEurope Convention (from 1970) concerns the enforcement
custodial and non-custodial sentences, but it has attracted few ratificafrom
EU Member States; a subsequent Council ofEurope Convention on
tr~nd"pr of sentenced persons was far more successful, attracting unanimous
ollowinz the conclusion of a trial, several cross-border issues may arise.i'" The
obvious possibility is the transfer of enforcement of a sentence, whether
or non-custodial. The next question is whether a criminal conviction
one Member State mayor must be taken into account for the purpose of subcriminal
proceedings in other Member States (in addition to the separate
double jeopardy effect ofthe conviction)."? There may also be a crossconsequence
to a criminal conviction as regards confiscation of criminal
or disqualification from carrying out a profession or activity. Finally, there
cross-border aspects to conditional release on probation or parole, as well as
for the protection of persons.
EAW or similar measure is issued as regards the person concerned by the
Member State, the executing Member State must surrender that person
accordance with the Framework Decision establishing the EAW. In princi,
the executing Member State cannot invoke the custody threshold in the
er Framework Decision (an actual sentence of more than four months, or a
sentence of more than twelve months), except by way of derogation."?
preamble to this Framework Decision makes clear that otherwise the EAW
rarnework Decision fully applies in the event that an EAW is issued to ensure
return of the person concerned to face trial in the issuing State.
Framework Decision may make a useful contribution to reducing unjuspre-trial
detention ofEU citizens accused of crimes outside their country
If it proves insufficient to this end, it may be necessary to adopt
measures addressing this issue. On this point, it should be noted that the
]()Inrni:ssi,on plans to release a Green Paper on pre-trial detention.t'"
Criminal Law: Mutual Recognition and Criminal Procedure722
459 Art 8(1).
460 Art 8(2), which contains a non-exhaustive list of five other types ofsupervision
461 Art 9(1). The concept of consent is not further defined.
462 Art 9(2); see also Art 9(3) and (4).
463 Art 14. Germany, Poland, Hungary, and Lithuania made declarations to this effect
OJ L 294/40).
464 Art 15. It is not clear if the latter point refers only to the mandatory grounds for
execute an EAW, or also to the optional grounds which the Member State concerned
more on the EAW, see 9.5.2 above.
465 Arts 11, 16, and 18. See also Art 13, on the possible adaptation of the supervision
the executing Member State. The Framework Decision does not address the question
pens if the executing Member State has a more severe regime relating to bail, ie ifit
released the person concerned pending trial. 466 Arts 17,
applies to six specified types ofsupervision measurer"? Member States may
the Council of other types of supervision measure which they are
enforce.t'"
Member States are obliged to apply the Framework Decision where the
concerned is lawfully and ordinarily resident in their territory, subject also
person's consent."! They may also, if the person concerned requests,
Framework Decision where that person is not lawfully and ordinarily
but in that case the application of the Framework Decision depends on
sent of executing state.462
The principle of dual criminality is abolished
standard list of thirty-two crimes with a three-year punishment threshold,
Member States may insist, at the time of adoption of the Framework
on applying that principle by way of derogation for 'some or all' of the
on the list, for 'constitutional reasons'.463 There are optional grounds for refus
execution: a defective certificate; absence of consent by the person concerned
the executing State in the circumstances described above; double jeopardy; resi
ual cases ofdual criminality; statute-barring (ifthe alleged offence fell within
jurisdiction ofthe executing State); immunity (in accordance with the execut
State's law); the age of criminal responsibility in the executing State; and w
the executing State would have to refuse to execute an EAW that might be is
in the event ofa breach ofthe order.464 There is no ground for refusal on groti
of territoriality, or the executing State's existing prosecution of or inrention
prosecute the person concerned, but arguably this issue is covered by the lin
the grounds to refuse to execute an EAW.
There are detailed provisions governing which Member State has competf
to take action relating to the supervision order.t'" and providing for coordinati
between Member States' authorities as regards later developments after the super
sion order is issued.v" There is no provision as such which grants the persol1co
cerned a remedy against the decision to approve a supervision order, but then a
the Framework Decision grants the person concerned an explicit or implicit
of consent before the supervision order can be transferred in the first
723Post-trial measures
9.7. Post-trial measures
Enforcement of sentences
21, referring to Art 2(1) of the Framework Decision establishing the EAW ([2002] OJ L
468 See 9.8.2 below.
For a detailed analysis ofpost-trial mutual recognition issues, particularly as regards recogni_£,_
•••• _."_1 sentences, see the Commission's Green Paper on criminal sanctions (COM (2004)
Apr 2004), particularly at 23-25, 34-46, and 57-68.
On double jeopardy, see 11.8 below.
Council ofEurope Convention (from 1970) concerns the enforcement
custodial and non-custodial sentences, but it has attracted few ratificafrom
EU Member States; a subsequent Council ofEurope Convention on
tr~nd"pr of sentenced persons was far more successful, attracting unanimous
ollowinz the conclusion of a trial, several cross-border issues may arise.i'" The
obvious possibility is the transfer of enforcement of a sentence, whether
or non-custodial. The next question is whether a criminal conviction
one Member State mayor must be taken into account for the purpose of subcriminal
proceedings in other Member States (in addition to the separate
double jeopardy effect ofthe conviction)."? There may also be a crossconsequence
to a criminal conviction as regards confiscation of criminal
or disqualification from carrying out a profession or activity. Finally, there
cross-border aspects to conditional release on probation or parole, as well as
for the protection of persons.
EAW or similar measure is issued as regards the person concerned by the
Member State, the executing Member State must surrender that person
accordance with the Framework Decision establishing the EAW. In princi,
the executing Member State cannot invoke the custody threshold in the
er Framework Decision (an actual sentence of more than four months, or a
sentence of more than twelve months), except by way of derogation."?
preamble to this Framework Decision makes clear that otherwise the EAW
rarnework Decision fully applies in the event that an EAW is issued to ensure
return of the person concerned to face trial in the issuing State.
Framework Decision may make a useful contribution to reducing unjuspre-trial
detention ofEU citizens accused of crimes outside their country
If it proves insufficient to this end, it may be necessary to adopt
measures addressing this issue. On this point, it should be noted that the
]()Inrni:ssi,on plans to release a Green Paper on pre-trial detention.t'"
Criminal Law: Mutual Recognition and Criminal Procedure722
459 Art 8(1).
460 Art 8(2), which contains a non-exhaustive list of five other types ofsupervision
461 Art 9(1). The concept of consent is not further defined.
462 Art 9(2); see also Art 9(3) and (4).
463 Art 14. Germany, Poland, Hungary, and Lithuania made declarations to this effect
OJ L 294/40).
464 Art 15. It is not clear if the latter point refers only to the mandatory grounds for
execute an EAW, or also to the optional grounds which the Member State concerned
more on the EAW, see 9.5.2 above.
465 Arts 11, 16, and 18. See also Art 13, on the possible adaptation of the supervision
the executing Member State. The Framework Decision does not address the question
pens if the executing Member State has a more severe regime relating to bail, ie ifit
released the person concerned pending trial. 466 Arts 17,
applies to six specified types ofsupervision measurer"? Member States may
the Council of other types of supervision measure which they are
enforce.t'"
Member States are obliged to apply the Framework Decision where the
concerned is lawfully and ordinarily resident in their territory, subject also
person's consent."! They may also, if the person concerned requests,
Framework Decision where that person is not lawfully and ordinarily
but in that case the application of the Framework Decision depends on
sent of executing state.462
The principle of dual criminality is abolished
standard list of thirty-two crimes with a three-year punishment threshold,
Member States may insist, at the time of adoption of the Framework
on applying that principle by way of derogation for 'some or all' of the
on the list, for 'constitutional reasons'.463 There are optional grounds for refus
execution: a defective certificate; absence of consent by the person concerned
the executing State in the circumstances described above; double jeopardy; resi
ual cases ofdual criminality; statute-barring (ifthe alleged offence fell within
jurisdiction ofthe executing State); immunity (in accordance with the execut
State's law); the age of criminal responsibility in the executing State; and w
the executing State would have to refuse to execute an EAW that might be is
in the event ofa breach ofthe order.464 There is no ground for refusal on groti
of territoriality, or the executing State's existing prosecution of or inrention
prosecute the person concerned, but arguably this issue is covered by the lin
the grounds to refuse to execute an EAW.
There are detailed provisions governing which Member State has competf
to take action relating to the supervision order.t'" and providing for coordinati
between Member States' authorities as regards later developments after the super
sion order is issued.v" There is no provision as such which grants the persol1co
cerned a remedy against the decision to approve a supervision order, but then a
the Framework Decision grants the person concerned an explicit or implicit
of consent before the supervision order can be transferred in the first