Standard training programme in judicial cooperation in criminal matters within the European Union Version: 3.0 Last up

1. Standard training programme in judicial cooperation in criminal matters within the European Union Version: 3.0 Last updated: 31.10.2012 The European JudicialTraining Network With the support of the European Union

2. (logo of the training organiser) Training organised by (name of training organiser) on (date) at (place) Title (of the training) Version: 3.0 Last updated: 31.10.2012 The European JudicialTraining Network With the support of the European Union

3. Module 8The European Arrest Warrant and the surrender procedure Version: 3.0 Last updated: 31.10.2012

4. Table of contents I. Introduction: background and general objectives II. Concept of the European arrest warrant III. Processing of the European arrest warrant by the issuing authority IV. Processing of the European arrest warrant by the executing authority V. Effects of the surrender VI. Relation to other legal instruments and application over time VII. Transposition and practical implementation VIII. Case-law of the CJEU on the EAW IX. Practical tips X. Case studies > Module 8: The European arrest warrant

5. I. Introduction • Background: • work to simplify extradition procedures • conclusions of Tampere (paragraph 35) • programme of measures to implement the principle of mutual recognition • (11 September 2001) • Proposal for a Framework Decision presented by the European Commission and negotiations • Adoption of the Framework Decision of 13 June 2002. > Module 8: The European arrest warrant

6. I. Introduction • General objectives: achieving the area of freedom, security and justice • Major changes introduced: • “Judicialisation” of the procedure • Broadening of the offences for which surrender can take place. • Reduction in the conventional grounds for refusal and relaxation of verifications: substantial verifications should first and foremost be conducted in the issuing State. • Acceleration, through the setting of time limits (decision on execution of the EAW and decision on the surrender of the person requested) > Module 8: The European arrest warrant

7. II. Concept • Definition: a judicial decision issued in a Member State with a view to the arrest and surrender by another Member State of a requested person, for the purposes of: • conducting a criminal prosecution or • executing a custodial sentence or detention order • Characteristics: • Judicialisation • Covers pre-trial and sentencing > Module 8: The European arrest warrant

8. III. Processing by the issuing authority 3.1. Acts for which a European arrest warrant can be issued • offences punishable by the law of the issuing Member State by a custodial sentence or a detention order for a maximum period of at least 12 months • where a sentence has been passed or a detention order has been made, for sentences of at least four months => Broadening in terms of severity of thepenalty imposed in the issuing State => Severity of the penalty in the issuing State = immaterial >Module 8: The European arrest warrant

9. III. Processing by the issuing authority 3.2. Conditions • Format: a specific form • Language: table of official languages (Article 8.2) • Content: mandatory information (Article 8.1) • Identity and nationality of the requested person • Name, address, contact details of issuing judicial authority • Evidence of enforceable judgment, arrest warrant etc. • Nature and legal classification of the offence • Description of the offence, place, degree of participation • Penalty imposed or scale of penalties provided for by law • If possible, other consequences of the offence. • Principle of proportionality as a criterion for issue (European handbook on issuing an EAW) > Module 8: The European arrest warrant

10. III. Processing by the issuing authority 3.3. Transmission • Between whom? From the issuing judicial authority to the executing judicial authority (but recourse to the central authorities is possible). • How? • Where the issuing authority knows the location of the requested person • Direct transmission or potential recourse to EJN • SIS/Interpol alert Where the issuing authority does not know the location of the requested person • SIS alert (Article 95 CISA), which is equivalent to the EAW • => BUT!! Transitional arrangements due to the current technical limitations of the SIS • partial connection in absence of the 12 new MS, the UK and IRL => Importance of Interpol • lack of ability to transmit a scanned copy of the EAW or transmit all the necessary information • => SIS I and SIS II • Recourse to Interpol • When? • Time limit for EAW receipt > Module 8: The European arrest warrant

11. IV. Processing by the executing authority 4.1.“Flagging” => Possibility of blocking execution of the European arrest warrant upon entry of the alert in the SIS • Schengen convention allows an indicator of validity (a “flag”) to be attached to the alert in question, preventing the person’s arrest for 24 hours. • Possibility maintained in the SIS II (but more narrowly defined options) • Partially contradicts the Framework Decision • by a decision taken by an administrative authority (the SIS central authority), whereas the Framework Decision states that the decision on execution is taken by a judicial authority • “on legal grounds or for special reasons of expediency”, whereas the Framework Decision provides for restrictive and narrowly defined grounds for refusal. • Solution > Module 8: The European arrest warrant

12. IV. Processing by the executing authority 4.2.Obligation to arrest and rights of the person concerned • Obligation on the executing authority to locate and arrest the person • Rights of the person concerned: • To be informed of the existence and content of the EAW and the possibility of consenting to their surrender (+ Directive 22/5/2012) • To benefit from the services of a lawyer and an interpreter (+ Directive 20/10/2010) • Consent: • If they consent to their surrender, a series of conditions must be satisfied • If they do not consent to their surrender, they will be entitled to be heard by the executing judicial authority, in accordance with the law of the executing Member State > Module 8: The European arrest warrant

13. IV. Processing by the executing authority 4.3.Surrender decision • Time limits for the decision to be taken • Grounds for refusal • Conditional surrender • Multiple requests • Appeals • Notification of the decision to the issuing authority > Module 8: The European arrest warrant

14. IV. Processing by the executing authority 4.3.1 Time limits for the decision to be taken • if the person consents to their surrender: the final decision on surrender should be taken within 10 days of consent • of the person does not consent to their surrender: the final decision on the execution of the European arrest warrant should be taken within 60 days of their arrest If these deadlines cannot be met, an extension of 30 days is possible, but the executing judicial authority must immediately inform the issuing judicial authority, giving the reasons for the delay.Exceptional cases where deadlines cannot be met: information from Eurojust. > Module 8: The European arrest warrant

15. IV. Processing by the executing authority 4.3.2 Grounds for refusal • Principle: the European arrest warrant must be executed • Mandatory and optional grounds for refusal • Reasons must be given for any refusal • Any non-execution must be based on one of the permitted grounds for non-execution. • These grounds for refusal have been reduced compared with the pre-existing instruments: • Abolished: • Ground based on the political nature of the offence • Ground based on the nationality of the person concerned  • Relaxed: requirement of double criminality > Module 8: The European arrest warrant

16. IV. Processing by the executing authority 4.3.2 Grounds for refusal • Mandatory grounds for non-execution (Article 3) • Amnesty • Ne bis in idem • Below the age of criminal responsibility • Optional grounds for non-execution (Article 4) • Absence of double criminality (outside list of 32 categories of offence) • Ongoing prosecution in the executing State for the same act • Extended version of the ne bis in idem principle regarding a) (cf. CJEU Gözütok and Brügge judgment) • Broadening of the ne bis in idem principle to third States • Statute of limitations  • Nationality or residence in the executing State  • Territoriality clause > Module 8: The European arrest warrant

17. IV. Processing by the executing authority 4.3.2 Grounds for refusal Fundamental rights • No ground for refusal expressly provided for by the FD butmentioned in recital 12 and Article 1(3) of the FD • Transposition varies between MS and attitudes vary in practice depending on the court => Tip: not blind confidence but an informed confidence (!) > Module 8: The European arrest warrant

18. IV. Processing by the executing authority 4.3.3 Conditional surrender Surrender subject to obtaining certain guarantees from the issuing authority (Article 5). In 3 cases: • Decisions in absentia (+ FD 26/2/2009) • Life sentences and life-time detention orders • Nationality and residence 4.3.4 Multiple requests • Between Member States => between EAWs • Between a Member State and a third State > Module 8: The European arrest warrant

19. IV. Processing by the executing authority 4.3.5 Appeals Silence of the FD regarding any appeals against a decision taken by the executing judicial authority concerning surrender => Application of executing State’s domestic law 4.3.6 Notification of the decision to the issuing authority The decision must be notified immediately to the issuing authority by the executing authority (Article 22). > Module 8: The European arrest warrant

20. IV. Processing by the executing authority 4.4. The surrender itself 4.4.1.Time limits • Principle: surrender no later than 10 days after the final decision on the execution of the European arrest warrant. • If prevented by circumstances beyond control, the executing and issuing judicial authorities shall immediately contact each other and agree on a new surrender date. Surrender shall take place within 10 days of the new date agreed. • Serious humanitarian reasons: temporary postponement of the surrender • If the above time limits expire, the person is released > Module 8: The European arrest warrant

21. IV. Processing by the executing authority 4.4.2. Postponed or conditional surrender • For the purposes of prosecution in the Member State or enforcement of a penalty incurred for another act • Alternative: temporary surrender > Module 8: The European arrest warrant

22. V. Effects of the surrender 5.1 Deduction of the period of detention served in the executing Member State (Article 26) 5.2 Speciality rule and exceptions (Article 27) 5.3 Surrender or subsequent extradition (Article 28) > Module 8: The European arrest warrant

23. VI. Relation to other legal instruments application over time 6.1. Relation to other legal instruments (Article 31) From 1 January 2004, between the MSof the EU,replaces pre-existing extradition treaties • 1957 Convention of the Council of Europe and its protocols • Provisions relating to extradition in the 1977 European Convention on the suppression of terrorism • Convention of 16 May 1989 between the MS on the simplification and modernisation of methods of transmitting extradition requests • EU conventions of 1995 and 1996 • Schengen provisions => BUT application vis-à-vis third States! => Note: 28/6/2006 agreement with Schengen partners (NOR/ISL) > Module 8: The European arrest warrant

24. VI. Relation to other legal instruments application over time 6.2. Application of the European arrest warrant over time(Article 32) • Requests for surrender received before 1 January 2004 are still governed by the previous instruments. • Requests for surrender received after 1 January 2004 are governed by the FD, BUT: • Later date in States that had not transposed the FD on that date • Declarations made regarding the continued application of the former extradition system for acts committed before a specified date, but not later than 7 August 2002 => 5 MS have limited the retroactive effect of the EAW (France, Austria, Italy, Luxembourg, Czech Republic) > Module 8: The European arrest warrant

25. VII. Transposition and practical implementation • At present, the text of the FD has been transposed in all Member States of the EU • 1st evaluations report from the European Commission describes delays and inconsistent transpositions • Statistics • Constitutional problems, examples: • Germany • Poland • Cyprus > Module 8: The European arrest warrant

26. VIII Case-law of the CJEU • Advocaten voor de wereld case(CJEU judgment of 3/5/2007) • Szymon Kozlowski case (CJEU judgment of 17/7/2008) • Santesteban Goicoechea case (CJEU judgment of 12/8/2008) • Leymann and Pustovarov case(CJEU judgment of 1/12/2008) • Wolzeburg case (CJEU judgment of 6/10/2009) • I.B. case (CJEU judgment of 21/10/2010) • Mantello case (CJEU judgment of 16/11/2011)

27. IX. Practical tips • As an executing authority • What should you do when faced with a national implementing law that is not in conformity with the Framework Decision of 13 June 2002? • What should you do if you receive a European arrest warrant issued by an issuing authority within a Member State that shows a lack of confidence towards or is reluctant comply with the Framework Decision? • As an issuing authority • What should be done faced with an executing authority that does not comply with the Framework Decision? • If this is an isolated case • In case of recurrent problems > Module 8: The European arrest warrant

28. X. Case studies • Case study 1: Battisti case In 1993, Cesare Battisti, the former leader of an Italian far-left group, was sentenced in his absence to life imprisonment by Milan Assize Court. He was found guilty of four murders committed in the late 1970s. He was granted political asylum in France, where he wrote novels and earned his living as a caretaker. He benefited from the “Mitterrand doctrine”, a policy established by the former French President, which granted asylum to Italian far-left terrorists provided that they renounced violence. The French authorities therefore rejected requests for Mr Battisti’s extradition on several occasions. Questions: => Could a European arrest warrant be issued by the Italian authorities against Cesare Battisti? => Could a “Mitterrand doctrine” still be conceivable in the current framework of the European Union? > Module 8: The European arrest warrant

29. X. Case studies • Case study 2: Rezala case Sid Ahmed Rezala, a 20-year-old French national, was convicted of three murders committed in France in 1999. Having fled to Portugal, he was arrested in the suburbs of Lisbon. He was imprisoned in Portugal, where the Portuguese authorities rejected a request for extradition on grounds that Rezala risked life imprisonment in France. The Portuguese Constitution does not permit the extradition of a person who would incur a prison sentence of over thirty years in the requesting country. Rezala committed suicide in prison before being tried or extradited. Questions: =>What should have been the Portuguese court’s decision if the request for surrender had been based on a European arrest warrant? => What approach should the Portuguese court have adopted if the person concerned was a Portuguese national? > Module 8: The European arrest warrant

30. X. Case studies • Case study 3 On 25 February 2003, A left Albania and illegally docked in Italy on a boat owned by his brother-in-law B, who had Italian nationality. The boat was intercepted by an Italian Customs patrol. A was sent back to Albania. B was charged in Italy with “facilitation of unauthorised entry and residence”. B left Italy before being arrested. An Italian court issued a European arrest warrant against B. Questions: • Since the Italian court does not know where B is located, how will it disseminate the European arrest warrant? • If the Italian court knows that B has fled to Brussels, to the home of one of his former business partners, can it send the arrest warrant directly to a local judicial authority in Brussels? > Module 8: The European arrest warrant

31. X. Case studies • Case study 3 (continued) B has been arrested by the Belgian Police on the basis of the European arrest warrant. Under Belgian law, facilitation of unauthorised entry and residence is a criminal offence only if the act has been committed for profit. There is nothing to indicate that this is the case here. Questions: • What approach should a Belgian investigating court adopt regarding the request for surrender to the Italian authorities? • Would it be different if the boat had docked in Greece (where Italy has been informed and is prosecuting B on the basis of active nationality jurisdiction, since B has Italian nationality)? > Module 8: The European arrest warrant

32. X. Case studies • Case study 4 A Belgian court issued a European arrest warrant against X in a fraud case. The Italian court refused to execute the EAW on the basis of its implementing law,which states that the warrant cannot be executed if the law of the issuing State does not provide for a fixed time limit for pre-trial detention. Questions: • What do you think of this ground for refusal? • What is the Italian court’s margin of manoeuvre?

33. X. Case studies • Case study 5 X, residing in Brussels, is a suspect in a case in Austria. The prosecutor's request to place him in pre-trial detention is rejected, but the prosecutor appeals and the Court of Appeal grants the request for detention. The appeal procedure takes place without consulting X, pursuant to the legislation (criticised and later amended). An EAW is issued against X and the competent court authorises execution, but X appeals, citing the Belgian implementing law, under which it must be refused if there are valid grounds for believing that execution of the EAW would infringe the person’s fundamental rights. The indictments chamber accepts this reasoning and refuses execution. Question: What do you think of this ground for refusal?

34. X. Case studies • Case study 6 X was charged with drug trafficking in Italy in February 2006, punishable by up to 10 years. A court in Rome issuedan EAW in 2008. It found that other proceedings were ongoing against X for speeding, punishable by up to 6 years. It decidedto insert the two offences in the EAW. The EAW was sent to Cyprus, where X lives. The central authority questionedthe court that issued the EAW about the time that has elapsed between the acts and the issue of the EAW, and the presence or absence of recurring offences. After a response from the Rome court, the EAW was transmitted to the executing authority, which agreedto surrender for drugs trafficking, not for speeding. Questions: • Is the central authority well-placed to ask these questions? • Is this decision consistent with the FD?

35. X. Case studies • Case study 7 X is found in possession of 0.5 grams of cannabis in Warsaw. He is charged with possession of illegal drugs, punishable in PL by up to 2 years. X, who lives in Hamburg (DE), is not arrested but does not respond to summons. The Polish court issues an EAW, the German prosecutor refuses to execute it on the grounds that EAW would never be issued in DE for acts of this magnitude due to the principle of proportionality. Questions: • Is this decision of refusal consistent with the FD? • What other approach could the German prosecutor have adopted?

36. X. Case studies • Case study 8: Assange case In August 2010, Swedish police question J. Assange in connection with a complaint. He is not arrested and leaves the country for the UK, unaware that an EAW had been issued against him by the Swedish prosecutor and transmitted to the British central authority. The warrant relates to acts of rape and sexual violence.The British court agrees to the surrender. On appeal, J. Assange argues that (1) the EAW was not issued by a judicial authority, (2) that the acts asdescribed do not correspond to the classifications used, (3) there is not yet any formal charge against him, (4) in any event, his surrender for such acts would be disproportionate. The appeal is dismissed and the decision upheld by the Supreme Court. Fearing extradition to the U.S., Assange takes refuge in the Venezuelan Embassy and applies for political asylum. Questions • What should we make of the arguments of the defence? • Could Sweden extradite J. Assange to the United States without the consent of the UK? What would be the competent authority in the UK for granting its consent? The contents and opinions expressed herein are solely that of the EJTN, and the European Commission cannot be held responsible for any use that may be made of these contents and opinions.