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HOW EFFECTIVE IS THE EUROPEAN ARREST WARRANT AS A MEANS OF COMBATING TRANSNATIONAL CRIME?

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... Criminal Matters between the Member States of the European Union, 29th May 2000 ... or DEFINITIVE DECISION BY A EUROPEAN MEMBER STATE IN RESPECT OF THE SAME ... – PowerPoint PPT presentation

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Title: HOW EFFECTIVE IS THE EUROPEAN ARREST WARRANT AS A MEANS OF COMBATING TRANSNATIONAL CRIME?


1
HOW EFFECTIVE IS THE EUROPEAN ARREST WARRANT AS A
MEANS OF COMBATING TRANSNATIONAL CRIME?
  • Daniel BERNARD
  • Federal Prosecutor of Belgium
  • CICERO FOUNDATION SEMINAR
  • PARIS, 11 DECEMBER 2006

2
  • European instruments adopted in the frame of the
    principle of
  • MUTUAL RECOGNITION within the European Union
  •  cornerstone  of judicial co-operation
    (Tampere,1998)
  • Instruments adopted and implemented
  • 1. Convention on Mutual Assistance in Criminal
    Matters between the Member States of the European
    Union, 29th May 2000
  • ? JOINT INVESTIGATION TEAMS
  • 2. FWD on the EUROPEAN ARREST WARRANT 13.06.20
    (25 MS)
  • 3. FWD on the FREEZING ORDERS 22.07.2003
    (14 MS)
  • In project FWD on the EUROPEAN EVIDENCE
    WARRANT
  • FWD on the CONFISCATION ORDERS

3
ACTORS involved in judicial co-operation
concerning the fight against organised crime
inside the European Union
  • On a judicial level
  • 1. NATIONAL JUDICIAL AUTHORITIES
  • 2. CENTRAL AUTHORITIES
  • 3. EUROJUST
  • 4. EUROPEAN JUDICIAL NETWORK
  • 5. LIAISON MAGISTRATES
  • On a police level
  • 1. NATIONAL POLICE AUTHORITIES
  • 2. EUROPOL
  • 3. LIAISON OFFICERS

4
THE FRAMEWORK DECISION ON THE EUROPEAN ARREST
WARRANTPRELIMINARIES
  • 1. The mechanism of the EAW is based on a high
    level of confidence between Member States
  • 2. Main role of the judicial authorities the
    role of central authorities in the execution of a
    EAW is limited to practical and administrative
    assistance
  • 3. The EAW should replace all the previous
    instruments concerning extradition in relations
    between EU MS
  • 4. All the rules relating the respect of the
    fundamental rights are still applicable refusal
    to surrender a person if
  • ? serious risk for death penalty or inhuman
    treatment
  • ? EAW based on discrimination

5
THE FRAMEWORK DECISION ON THE EUROPEAN ARREST
WARRANTDEFINITION
  • The EAW is
  • - a judicial decision
  • - issued by a Member State
  • - with a view to the arrest and the surrender by
    another Member State
  • - For the purpose of
  • ? conducting a criminal prosecution
  • ? executing a custodial sentence / detention
    order

6
THE FRAMEWORK DECISION ON THE EUROPEAN ARREST
WARRANTSCOPE
  • The EAW may be issued
  • ? for sentences of at least 4 months
  • ? for acts punishable by the law of the issuing
    MB for a maximum period of at least 12 months
  • but control of double criminality
  • There is no control of double criminality
  • For 32 offences limitatively listed if they are
    punishable
  • in the issuing MS for a maximum period of at
    least
  • 3 years

7
THE FRAMEWORK DECISION ON THE EUROPEAN ARREST
WARRANT THE GROUNDS FOR MANDATORY NON-EXECUTION
  • ? OFFENCE COVERED BY AMNESTY IN THE EXECUTING
    MS
  • ? FINAL JUDGMENT or DEFINITIVE DECISION BY A
    EUROPEAN MEMBER STATE IN RESPECT OF THE SAME
    FACTS ne bis in idem
  • ? LEGAL MINORITY (under the law of the executing
    MS) AT THE MOMENT OF THE FACTS

8
THE FRAMEWORK DECISION ON THE EUROPEAN ARREST
WARRANT THE GROUNDS FOR OPTIONAL NON-EXECUTION
  • ? Lack of double criminality (except the 32
    listed offences)
  • ? Judicial proceedings for the same facts in the
    executing MS
  • ? Prosecution or punishment is statute-barred
    according the law of the executing MS
  • ? Judgement for the same facts in a non MS
  • ? The requested person is national or resident
    in the executing MS which undertakes to execute
    the sentence
  • ? Acts committed in the executing MS
  • ? Acts committed outside the issuing State and
    proceedings not allowed by the law of the
    executing State

9
THE FRAMEWORK DECISION ON THE EUROPEAN ARREST
WARRANTGUARANTEES TO BE OBTAINED FROM THE
ISSUING STATE
  • ? EAW ISSUED FOR THE PURPOSES OF EXECUTING A
    SENTENCE OR MEASURE IMPOSED BY A DECISION
    RENDERED IN ABSENTIA
  • AGAINST A PERSON WHO WAS NOT INFORMED ABOUT THE
    TRIAL
  • ? MANDATORY GUARANTEE
  • ASSURANCE DEEMED ADEQUATE TO GUARANTEE THE
    PERSON THAT HE
  • OR SHE WILL HAVE AN OPPORTUNITY TO
    APPLY FOR A RETRIAL OF THE
  • CASE AND TO BE PRESENT AT THE JUDGMENT
  • ? EAW ISSUED FOR THE PURPOSES OF PROSECUTION
    AGAINST A NATIONAL or RESIDENT IN THE EXECUTING
    MS
  • ? OPTIONAL GUARANTEE
  • RETURN OF THE PERSON CONCERNED TO THE
    EXECUTING MS IN
  • ORDER TO SERVE THE CUSTODIAL SENTENCE
    OR DETENTION ORDER

10
THE FRAMEWORK DECISION ON THE EUROPEAN ARREST
WARRANT JUDICIAL AUTHORITIES AND CENTRAL
AUTHORITIES
  • The issuing judicial authority is the judicial
    authority of the issuing MS, competent to issue
    an EAW
  • The executing judicial authority is the judicial
    authority of the executing MS, competent to
    execute a EAW
  • Each MS may designate a central authority
  • - to assist the competent judicial authority
  • - for the administrative transmission and
    reception

11
THE FRAMEWORK DECISION ON THE EUROPEAN ARREST
WARRANTIMPLEMENTATION
MS DATE TIME LIMIT LANGUAGE DELAY
AT 01.05.2004 07.08.2002 G, F, NL 40 days
BE 01.01.2004 F, NL, G, E 10 days
CZ 14.01.2005 01.11.2004 CZ 40 days
DE 23.08.2004 ? 18.07.2005 03.08.2006 23.08.2004 ? 18.07.2005 03.08.2006 G, F, NL 40 days
CY 01.05.2004 Gr, Tk, E 03 days
DK 01.01.2004 DK, SE, E 10 days
12
THE FRAMEWORKDECISION ON THE EUROPEAN ARREST
WARRANTIMPLEMENTATION
MS DATE TIME LIMIT LANGUAGE DELAY
EE 01.07.2004 Est, E 03 days
EL 09.07.2004 Gr 10 days
ES 01.01.2004 Es 10 days
FI 01.01.2004 Fin, SE, E ASAP
FR 13.03.2004 01.11.1993 F 06 days
HU 01.05.2004 H 40 days
IE 01.01.2004 Gaëllic, E 07 days
13
THE FRAMEWORKDECISION ON THE EUROPEAN ARREST
WARRANTIMPLEMENTATION
MS DATE TIME LIMIT LANGUAGE DELAY
IT 14.05.2005 07.08.2002 It 10 days
LT 21.10.2004 Let 72 hours
LU 26.03.2004 07.08.2002 F, G, E 06 days
LV 01.05.2004 Lit, E 48 hours
MT 07.06.2004 Mt, E 48 hours
NL 12.05.2004 NL, E 20 days
PL 01.05.2004 Pl 03 mths
14
THE FRAMEWORKDECISION ON THE EUROPEAN ARREST
WARRANTIMPLEMENTATION
MS DATE TIME LIMIT LANGUAGE DELAY
PT 01.01.2004 Pt 10 days
SI 01.05.2004 07.08.2002 Sl 20 days
SK 01.08.2004 Sk 18 days
SE 01.01.2004 SE,DK,NO,E ASAP
UK 01.01.2004 E 48 hours
BUL
ROM
15
THE FRAMEWORK DECISION ON THE EUROPEAN ARREST
WARRANTSURRENDER PROCEDURE
  • TIME LIMITS
  • 1. for the decision to execute the EAW
  • ? with consent 10 days
  • ? without consent 60 days after arrest
  • if not inform immediately the issuing MS
  • 30 days
  • 2. for the surrender of the person
  • ? ASAP or maximum 10 days after final
    decision
  • if not immediat contact with the issuing MS
  • ? maximum 10 days after new date

16
THE FRAMEWORKDECISION ON THE EUROPEAN ARREST
WARRANTSURRENDER PROCEDURE
  • POSSIBILITY TO POSTPONE THE SURRENDER
  • 1. For serious humanitarian reasons
  • (endanger the life of health of the person)
  • 2. For prosecution of the person in the
    executing MS
  • or, if already sentenced, for serve a sentence
    in the executing MS

17
THE FRAMEWORKDECISION ON THE EUROPEAN ARREST
WARRANTEVALUATION
  • DURING THE YEAR 2005
  • ARRESTED PERSONS 1.526
  • EFFECTIVELY SURRENDERED PERSONS 1.295
  • NATIONALS SURRENDED 309
  • REFUSALS 169
  • DELAY FOR SURRENDER 30 à 40 DAYS
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