Leg. Dev.: Council Framework Decision of 13 June 2002 on the European Arrest Warrant and the Surrender Procedures Between Member States

9 Colum. J. Eur. L. 195 (2002)

William Sanchez.

On June 13, 2002, the Council of the European Union adopted a framework decision establishing the European arrest warrant as a basic instrument of judicial cooperation among the Member States in the field of criminal justice and outlining its terms and procedures as well as the timetable for its implementation. This is the latest and perhaps the most significant of several recent developments aimed at furthering the goals of a European “area of freedom, security and justice.”

The European arrest warrant will replace the existing system of cooperation based on traditional extradition agreements. Extradition in the EU is currently governed by the European Extradition Convention of December 13, 1957. Since its inception, the convention has been modified by the Additional Protocols adopted in 1975 and 1978, and by the European convention of January 27, 1977 on the suppression of terrorism. The establishment of the Schengen Information System and the 1995 and 1996 extradition conventions simplified many of the bulky procedural obstacles of the original 1957 convention, but left intact the basic mechanism of extradition, which is political and intergovernmental by its very nature. The Treaty of Amsterdam paved the way for a radically different approach to extradition within the Union when it listed the creation of an area of freedom, security and justice among its objectives.

At its meeting in Tampere of October 15-16, 1999, the European Council reaffirmed its commitment to developing the Union as an area of freedom, security and justice. To that end, it recommended closer cooperation and concerted action under the Third Pillar of the Treaty on European Union (TEU). The Tampere Council called for the development of a “genuine European area of justice” and for a “unionwide fight against crime.” Specifically, it recommended that formal extradition procedures be abolished among the Member States, and that a program of measures to implement the principle of mutual recognition be adopted by the Council and the Commission. The movement toward the creation of a European arrest warrant gained fresh momentum following the terrorist attacks in the United States on September 11, 2001, as the European Council, at its extraordinary meeting of September 21, 2001, agreed to the introduction of a “European warrant for arrest and extradition in accordance with the Tampere conclusions, and the mutual recognition of legal decisions and verdicts.” A proposal for a Council Framework Decision on the European Arrest Warrant and surrender procedures between the Member States by the Commission followed on September 25, 2001,10 and a final framework decision was adopted by the Council on June 13, 2002.

The Council’s framework is founded on the principle of mutual recognition, which the Tampere conclusions identified as the “cornerstone” of judicial cooperation. The new European warrant, together with the surrender procedures set out in the decision, is intended to replace the body of extradition agreements that have heretofore formed part of the Union system of law, and the existing conventions are indeed expressly abolished. Based on the idea that the old extradition system is no longer compatible with the level of confidence the Member States have in each other, particularly in their common commitment to the rule of law and humanitarian principles, the proposals adopted by the Council in the framework decision replace traditional intergovernmental extradition with a simplified program of compulsory mutual judicial recognition of every Member State’s judicial decisions.

Chapter 1 of the decision defines and explains the general principles of the European arrest warrant. The warrant is a simple document, containing the name and nationality of the requested person, evidence of an enforceable judicial decision against him or her, the nature and legal classification of the offense, a description thereof and the consequent penalty to be imposed, as well as the contact information for the issuing judicial authority.The European arrest warrant is to be issued and executed by the judicial authorities designated as having the authority to do so by the relevant laws of each country. Articles I and 2 define the warrant and its scope. It is defined as a “judicial decision issued by 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.” Member States are obliged to execute the warrant on the basis of mutual recognition and in accordance with the provisions of the decision. The programdoes, nevertheless, identify grounds for both mandatory and optional non-execution of the warrant, such as when the offense for which the warrant is issued is covered by amnesty in the executing Member State or where prosecution or punishment of the requested person is forbidden by its laws. The Council sets out a wide array of offenses for which the warrant may be issued, including murder, rape, arson, drug and weapons trafficking, participation in criminal organizations, terrorism, crimes against children, cyber-crime, money-laundering, racism and xenophobia, counterfeiting, racketeering and “illicit trade in human organs and tissues,” among a host of others. The Council expressly retains the right, pursuant to TEU Article 39(1), to act unanimously after consultation with the European Parliament to add other categories of offenses to the already substantial list, and to determine whether to extend or amend it.

The procedures for surrender and the effects thereof are detailed in Chapters 2 and 3, respectively. Time limits are set both for the execution of the warrant and for the surrender of the requested person. The framework decision incorporates the provisions of the 1995 Convention relating to the rights of the requested person. Most importantly, a requested person has the rights to legal counsel, to consent to surrender and to be heard by the judicial authorities of the executing Member State in the event that he or she refuses to consent. Article 27(2) retains the “specialty” rule, which entitles the requested person to freedom from prosecution, sentencing or other deprivation of his or her liberty for any offense other than that for which the warrant was executed except under certain conditions stipulated in the article or when the requested person refuses the entitlement pursuant to Article 13.

Chapter 4 provides that the Decision will enter into force on January 1, 2004, when it will replace previous conventions on extradition concluded by the Union. It further provides that bilateral and multilateral agreements concluded between the Member States will remain in force insofar as they extend and enlarge the provisions of the framework decision.

The adoption of this framework decision by the Council represents an important step forward in judicial cooperation among the Member States. It is a “concrete contribution to translating into legal terms the political declarations, recommendations and decisions” made in recent years, particularly with regard to the fight against terrorism. The European arrest warrant and surrender procedures, if properly implemented, will be crucial to the effectiveness of the flurry of recent proposals relating to cooperation on criminal matters, such as those concerning attacks on information systems, organized crime and terrorism. Perhaps most importantly, by replacing a slow, antiquated and ultimately ineffective extradition system, this recent decision lays the foundation for the emergence of a truly European criminal law that can “provide citizens with a high level of safety within an area of freedom, security and justice.”