Extradition Using European Arrest Warrants
Avoiding Extradition Injustice and Human Rights Transgressions
Extradition procedures between Member States of the European Union have been replaced by the instrument of a European Arrest Warrant (EAW). The EAW leads to a faster and simpler surrender system. Using the old system of extradition procedures, the average time taken to effect surrender of a person from the requested state to the requesting state was about nine months. Now the average time is about 43 days, with the maximum being set at 60 days. If the person agrees to the surrender, the time comes down to about 10 days. EAWs are issued to arrest a person who has been accused or convicted of a crime in one state and has fled to another. Since their introduction many thousands of warrants have been issued. There are, however, concerns about some details of the process.
Operation of the European Arrest Warrant
The member states of the European Union were required to introduce legislation to bring the EAW into force by the deadline of January 1 2004. It is now in force in all 27 member states, although Germany, Cyprus and Poland had to make later alterations to their national legislation in order for this to happen.
Extradition of a person from one member state to another previously could be denied on various grounds, including:
- The act was political
- The act was not a crime in both states (double criminality).
- The person accused/convicted was a citizen of the requested state.
- The offence was too trivial to justify extradition.
With EAWs, there is no longer a political element to the process – it is entirely judicial. Also, there are 32 serious offences to which the test of double criminality does not apply. These include involvement in organised crime or terrorism. Another important change is that the requesting country does not have to show a prima facie case – the executing state is obliged to trust the judicial processes in the requesting state.
The EAW scheme has now been operating for several years, and trends in its use have become apparent. The workings of the scheme have been monitored by various organisations, including the EU Commission itself. Another organisation that has taken a keen interest in the EAW is Fair Trials International (FTI) which is a charity that works for fair trials according to international standards, and supports people who are facing charges in a foreign country.
FTI have identified various difficulties with the operation of the scheme, and have proposed improvements that they would like to see implemented, to make the EAW scheme more effective, and fairer.
Problems With the European Arrest Warrant
- Proportionality
- Human Rights considerations
- Legal aid
- Removal of EAWs
One of the difficulties with the EAW scheme is that many warrants, particularly those received by the UK that have been issued by Poland, have been issued for trivial offences. One, for example, related to the handling of a stolen mobile telephone, worth about £10.
The domestic courts of the executing state are paying insufficient attention to the considerations of human rights and whether allowing the surrender is in fact an abuse of process.
There is a lack of consistency in the availability of legal representation and translation facilities in the respective member states. Legal aid is often very limited.
There is no mechanism for an individual to have an EAW alert removed, following the decision of an executing state to refuse to execute it. For instance, Deborah Dark is the subject of an EAW issued by France. Both Spain and the UK have refused to execute this warrant, due to the passage of time since the offence (twenty years). However, the EAW remains outstanding because France has refused to remove it. As a result if Dark travels from the UK to anywhere in the EU, she is liable to be arrested.
Improving the European Arrest Warrant Scheme
The following is a selective list of amendments which if implemented would improve the EAW scheme.
Checks should be introduced so that warrants are issued proportionally and the use of an EAW is genuinely in the interests of justice.
Guidance and training should be provided to domestic courts to assist them in exercising their powers to refuse to execute a warrant, particularly where the procedures leading to the warrant issue were the result of malfeasance on the part of the issuing authorities.
There should be harmonisation across member states on the provision of legal aid and legal representation, including translation services. Costs should be shared between requesting and executing states.
Harmonisation on laws on pre-trial detention, and bail needs to be achieved, to eliminate the current unfairness.
There needs to be a much more effective system for removing EAW alerts from the relevant Schengen, Eurojust and Europol systems.
The introduction of the European Arrest Warrant scheme has resulted in a marked improvement in the ability of the EU member states to pursue fugitives, and to bring them to justice. However, there are serious concerns with some aspects of the system. Addressing these concerns will make the system even more effective, and fairer.
Acknowledgement: much of the material for this article was obtained from Fair Trials International, and also reports from the UK House of Commons and the European Commission.
European Arrest Warrant Scheme
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