2. MARCO CONCEPTUAL Y REFERENCIAL
2.3 Fase de Preparación
In addition to the European Arrest Warrant, the European response to the 9/11 attacks and the perceived lack of effective cooperation in the area of EU criminal justice also resulted in the establishment of a new agency, which came to be known as Eurojust. Eurojust is founded on the basis of Council Decision 2002/187/JHA78 and its tasks include the stimulation and coordination of prosecutions on request of the
Member States and, most relevant for our purposes, the facilitation of ‘the execution of requests for, and decisions on, judicial cooperation, including regarding instruments giving effects to the principle of mutual recognition’.79 Eurojust usually operates on a request of the Member States through one of the national
members of its main board, the College of Eurojust. When cooperation is requested, Eurojust may facilitate case coordination by for instance asking Member States to set up joint investigation teams, provide information, coordinate the usage of the EJN, convince the most appropriately situated Member State to take up the prosecution and less appropriately situated Member States to take on a more supporting role, etc. Eurojust thus seeks to enhance cooperation by both offering a forum for discussion and by providing practical assistance at the prosecutorial level (Klip, 2012, p.451-452). When determining Eurojust’s material scope of powers, the Council Decision refers to the Council Decision establishing Europol. Article 4(1) and the annex of the Europol Council Decision provides that Europol (and thus Eurojust) is competent in the areas of serious crime, including for example organized crime, terrorism, drug trafficking, money laundering, corruption etc., provided that at least two Member States are involved. Many of these categories correspond with the categories included in the EAW Framework Decision, and Eurojust’s explicit involvement in mutual recognition instruments means that the effect on mutual trust of this agencies’ coordinating efforts may be profound.80 It should be worth mentioning here,
however, that Eurojust has no coercive powers over Member States or direct enforcement powers whatsoever. Its role is confined to a merely supporting one (Fletcher, Gilmore & Lööf, p.66-67).
As regards, more specifically, Eurojust’s role in improving the implementation of the EAW and the cooperation between Member State judicial authorities, it can be said that Eurojust performs four distict roles. Its first and foremost activity concerns facilitating the implementation of an issued warrant pursuant to article 3(1)b of the amended Eurojust Decision.81 Roughly 17-20% of all cases handled by Eurojust fall
under the ambit of 3(1)b of the Eurojust Decision, which amounted to about 250 cases annually in the period 2009-2012 (Eurojust, 2010, p.31; Eurojust, 2011, p.16, Eurojust, 2012b, p.21; Eurojust, 2013, p.21). Its other two functions of note with regard to EAW cooperation have been laid down in the EAW Framework Decision. Article 16(2) of that measure provides that executing authorities may enlist the aid of Eurojust when several conflicting EAW’s have been issued by different Member States. This may happen, for instance, when several countries have jurisdiction and seek to prosecute an indicted person for the same offence. In such cases, Eurojust brings together the national desks of the different Member States in order to reach a consensus on a given issue (Eurojust, 2011, p.17). Only a few cases per year falling under the scope of article 16(2) were reported to Eurojust in the period 2009-2012 (Eurojust, 2010,
78 Later amended by Council Decision 2003/659/JHA and Decision 2009/426/JHA. 79 Council Decision 2009/426/JHA articles 3(1)a and 3(1)b
80 Eurojust in fact seeks to foster mutual trust (Eurojust 2012, Eurojust 2013), and identifies the EAW as one of its
key working areas (Eurojust 2012)
65 p.31; Eurojust, 2011, p.16-17; Eurojust, 2012b, p.21; Eurojust, 2013). In both of these procedures, national authorities cooperate bilaterally at first, after which supranational aid is enlisted should this be perceived as necessary by the national authorities. The significance of this for the network will be elaborated upon in the next chapter. Finally the possibility for Member States to report other Member States in case of repeated refusals to execute or request or other difficulties. The College of Eurojust will then issue a non- binding opinion to the Member States concerned on how to solve the situation. Finally, Member States are required to notify Eurojust when they are forced to breach the time limits established by the EAW Framework Decision pursuant to article 17(7) of the EAW Framework Decision. The frequency of these cases has differed rather substantially in the past few years, rising noticeably from 30 cases in 2009 (Eurojust, 2010, p.31) to 85 in 2010 (Eurojust, 2011, p.17), 116 in 2011 (Eurojust, 2012b, p.23) and then dropping slightly again to 94 recorded instances in 2012 (Eurojust, 2013, p.22).
The European Judicial Network (EJN) is a system of national contact points, created to facilitate the dissemination of information between judicial actors in the different Member States.82 The contact points
in the Member States try to ensure that national authorities are provided with sufficient information from other Member States and European actors to combat serious crime (Europa, 2009), according to the preamble to the Joint Action in particular crime committed by transnational organizations. The Joint Action of 1998 was eventually repealed by a new Council Decision in 2008.83 The goal of the new Council
decision was firstly to accommodate the reliance of the EU on mutual recognition into the EJN, and secondly to redefine the relationship between the EJN and Eurojust. Eurojust is to have a privileged relationship with the EJN, and the Council Decision on the EJN provides that they will have a dedicated telecommunications link between each other. There should also be direct contact between the EJN national contact points and the national members of the College of Eurojust, due to their similar function. Finally, it is worth noting that the secretariat of the EJN has been integrated within the Eurojust organizational structure, although it forms an autonomous unit not directly subject to the instructions of Eurojust. Due to the similar coordinating approach both the EJN and Eurojust take to stimulate and improve European judicial cooperation, the links created between the two make sense. Moreover, institutionalizing ways to disseminate information might foster the dissemination of knowledge and trust between EU judicial authorities. In ascertaining the role Eurojust has in fostering (system) trust, the EJN should thus not be neglected.
5.13 Conclusions
This chapter has shown the different ways in which the European Arrest Warrant has been implemented in the nine selected Member States. Interesting is the divergent approaches that Member States take to organizing the judiciary, with some Member States opting for entirely decentralized systems and other centralizing theirs partially. All the selected Member States have implemented the EAW framework in such a way that the issuing of warrants for the purposes of prosecutions is performed decentralized. Nevertheless, countries such as Finland, Sweden and Spain have sought to centralize the issuing of warrants for custodial sentences. Furthermore, the execution of foreign warrants has been centralized in the Netherlands and in Spain. There are also substantial differences in the implementation of the EAW framework itself. For example, the Finnish system includes a proportionality test before the issuing of warrants which is higher than its usual internal proportionality considerations, considering for example the extent to which other countries have failed to surrender a person on time. This relatively critical stance of foreign authorities differs somewhat from for example Spain, which has only adopted the doctrine of
82 The EJN’s founding act is Joint Action 98/428/JHA
66 asking for retrial guarantees after 2006 and does not have refusal grounds for human rights infringements. Finally, the chapter shortly elaborated on the role of Eurojust in the coordination of the EAW system. The vast majority of EAW cases handled by Eurojust relate to the facilitation of implementing an issued warrant, a form of bilateral cooperation between the involved Member States. Eurojust is furthermore involved in multi-lateral surrender cases where conflicting warrants have been issued, which only amounts to a few cases each year. Finally, Eurojust is informed when national authorities are forced to breach Framework Decision time limits.
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