1 Pigou, A C, Economics of Welfare, Macmillan, 920.
2.2.2 La producción de servicios e infraestructuras de transporte: ejemplos
Whilst it is beyond the scope of this work to consider in detail the precise differences between traditional extradition and the EAW, the differences relevant to the
consideration of the EAW vis a vis human rights are set out here in brief. The goal of both extradition and the EAW remains the same, namely to surrender an individual to another state for prosecution or to serve a sentence.
A key difference however is that in extradition the relationship between two states involves one state making a request and the other decides whether to satisfy the request. In the case of the EAW, a state makes a request, however, for the reasons considered below, the decision whether to fulfill it has to a large extent been taken out of the E- MS’s hands. This may be explained by the changing landscape which Pollivino
describes as “an institutional scenario where judicial assistance is requested and granted within an integrated transnational judicial system”.93
Sanger describes the EAW as
91
President Barak Obama, President Barack Obama's Inaugural Address, January 21, 2009
92
EAWFD (n15) Recitals 6 and 10
93
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“new, more advanced creature that provides a legal basis for individuals to be subject to foreign substantive and procedural criminal law rules”.94
As will be seen, the European Court of Human Rights (ECtHR) regards the EAW as being equivalent to extradition. Despite the changes, Plachta also does not regard the change of name to be a reflection of a change of substance or creation of a new system of international cooperation and in fact takes offence to what he regards as a the flippant use of the term ‘surrender’ by the EU. He reminds readers that extradition and by
extension the mechanisms and safeguards that have developed, only make sense when considered in terms of relationships between states and their vertical model. 95 In addition the main impediments to traditional extradition are still present in the EAW process including sovereignty, reciprocity and the need to protect individuals from ill- treatment abroad. There is no disagreement that these continue to be considerations; however the later does not act as an impediment to the extent Plachta envisages.
It is questionable whether the MSs themselves are convinced that the EAW is an all new system. The UK implementation does not see the creation of a new mechanism, but rather addresses the necessary amendments in the context of its extradition procedure. The implementing law in the UK is the EA which contains different procedures depending on which ‘Category’ a country falls under. EU MSs fall under Category 1 and are subject to the EAWFD rules. Part 1 of the Act deals with EAWs received by the UK and Part 3 regulates EAWs issued by the UK to other MSs.
This aside, it is clear that the EU considers the EAWFD as more than a re-branding exercise. In Advocaten voor de Werald, Advocate-General Colmar is clear that the EAW is not extradition, “[i]t is clear that both concepts serve the same purpose of
94
Andrew Sanger, Force of Circumstance: The European Arrest Warrant and Human Rights, Democracy and Security, (2010) 6:1, 17-51, 43
95
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surrendering an individual who has been accused or convicted of an offence to the authorities of another State so that he may be prosecuted or serve his sentence there. However, that is where the similarities end”.96
2.4.1 Dual Criminality
Its scope set out in Article 2, including, the abolition of dual criminality for the 32 listed offences, is a prime example of MR in the EAWFD, surrender for these offences will be “without verification of the double criminality of the act”.97
What will be noted at first glance is that the list contains a varied spectrum of crimes. Whilst some, such as murder, are easily defined and comparable across the MSs, the definition and classification of others such as swindling and rape98 differ across the MSs. Peers points out that since the assertion by the requesting state that the alleged offence falls within the list is non-rebuttable, “this could be considered an "automatic" application of the mutual recognition principle”.99
According to the Extraordinary European Council, the EAW would ‘supplant’ the extradition systems which do not ‘reflect the level of integration and confidence between’ MSs. The EAW “will allow wanted persons to be handed over directly from one judicial authority to another. In parallel, fundamental rights and freedoms will be guaranteed.”100
The preceding Conclusions of the Justice and Home Affairs Council101 which also highlighted the priority to be given to the fight against terrorism, formulating the reasons for developing new measures, in particular the EAWFD, with reference to
96
Advocaten voor de Werald VZW (n33), Opinion of Advocate-General Colomer §41. See also Fichera (n48) 84-87; Komarek (n58)
97
ibid. For other offences double criminality 'may' still be required, Art 2(4). See Fichera (n48) 79-81 for a discussion of the abolition and reliance on mutual trust.
98
See Julian Assange v Swedish Prosecution Authority [2011] EWHC 2849 (Admin)
99
Peers, Mutual Recognition and Criminal Law in the EU: Has the Council got it Wrong (n38) 14
100
European Council, Conclusions and Plan of Action (n73)
101
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terrorists, including “the need to overcome the requirement of double criminality in terrorist cases”. It is important to note the reasoning provided for the need to fast-track extradition, in particular its purpose to permit MSs to deal with threats from terrorism and organized crime. The 32 offences are not restricted to the most grave offences related to either terrorism or organised crime, and neither has the practice of certain MSs when engaging the EAW been limited to these high level crimes.102 Before 11th September 2001, the offences referred to in relation to the then proposed EAW were limited to ‘serious offences’, what is adopted after 9/11 is a much longer and broader list, containing offences for which no approximation measures have been adopted103 and those for which no common definition exists at the European level.104 This broader list does not have an intrinsic cross-border element; the only cross-border element in most cases is the location of the person rather than the crime. The fast track nature of the procedure means it is crucial that measures are in place to ensure HRs are protected as part of the procedure and not simply left to chance that the general protection will be engaged.
Keijer considers the list of the 32 offences as vague105 and arbitrary and is critical of the abolition of dual criminality.106 The abolition of dual criminality alone is not enough, during the legislative process MSs had genuine and reasonable concerns relating to this list of offences. Ireland was concerned due to the lack of definitions for the offences, whilst Italy’s concerns were the need to restrict the list to serious crimes. For different reasons MSs were coerced to agree to the final text of the EAW.107
102
In relation to the UK, Poland provides a particular problem in terms of the volume of requests for ‘minor’ offences.
103
Such as drug trafficking, money laundering, human trafficking, fraud against the European Communities, etc...
104
Fichera (n48) 72
105
See also Pérignon and Daucé (n58) 207 who talk of the vagueness of the list and the concerns it raises in Member States.
106
Keijzer, Origination of the EAW Framework Decision (n70)
107
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Some form of low level approximation of these offences is needed, such as the creation of a matrix for each offence illustrating the different elements required by each MS. Such a simple matrix would not need to be legally binding, but rather act as a tool to assist with linguistic difficulties and avoid tensions identified by Bapuly,108 whilst also highlighting the similarities between MS thereby promoting understanding and mutual trust.
The CJEU, in the Advocaten voor de Werald109 case, was asked to consider whether the removal of dual criminality for the 32 listed offences was contrary to the principle of legality. In a circular statement relying on mutual trust, the Court dismissed the arguments that it was contrary by simply asserting that in the same way as respect for HRs is assumed to exist throughout the MSs, so it is assumed that the principle of legality is also respected, therefore meaning that the removal of the dual criminality for the 32 listed offences was not contrary to the principle of legality. In support, it is reiterated that the EU is “founded on values common to Europeans, such as liberty, democracy, the rule of law, and respect for human rights and fundamental freedoms”.110
From this flows the assumption that in the EAWFD MSs have jurisdiction to prosecute the 32 listed offences. On the basis of this assumption there is no need to apply the test of dual criminality, the principle is not really abolished but rather a presumption is established to satisfy the existence of dual criminality for the 32 offences.111 The EAWFD does not seek to harmonise either the criminal offences (constituent elements or penalties), their definition and penalties continue to be determined by the issuing Member State’s law which “must respect fundamental rights and fundamental legal
108
Bapuly (n28) 12-13
109
Advocaten voor de Wereld (n33)
110
ibid, Advocate-General Opinion §9
111
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principles as enshrined in Article 6 EU, and, consequently, the principle of the legality of criminal offences and penalties”.112
This is how the circular argument is closed. The EAWFD abolishes dual criminality on the basis that the EU was founded on the common values of MSs, including the
principle of legality. This creates the presumption that dual criminality exists and additionally the EAWFD says that MSs should respect HRs and principles. 2.4.2 Limited Grounds of Refusal
The EAWFD provides for an exhaustive list of grounds upon which a MS can refuse to surrender a requested person. The reduced formalities, together with the exhaustive and limited list of grounds for refusal to surrender a requested person are the most obvious illustrations of MR. Under the EAWFD there are 3 mandatory grounds for non-
execution113 and a further 7 optional grounds114. It is interesting to note that these grounds have not been consistently implemented by MSs.115
Van Sliedregt, does not regard the exhaustive list as a drastic reduction in the grounds and believes that they leave room for ‘distrust’.116
It is however the implementation of the optional grounds which creates disparity in practice.117 Many of the seven optional grounds for refusal have been implemented by 112 ibid §53 113 Art.3, EAWFD (n15) 114 ibid, Art.4 115
Commission, Report on the Implementation of the Framework Decision on the European Arrest
Warrant under each Member State's Law, (COM(05) 63); and Add 1: Commission Staff Working
Document - Annex (SEC(05) 267); Commission, Report from the Commission based on Article 34 of the
Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States (revised version),COM/2006/0008 final; and Commission, Report to theEuropean Parliament and the Council on the implementation since 2007 of the Council Framework Decision of 13 June 2002on the European arrest warrant and the surrender procedures between Member States, COM(2011) 175 final
116
van Sliedregt, The European Arrest Warrant: Between Trust, Democracy and the Rule of Law (n 58) 249
117
For implementation of the EAWFD and the grounds see: Commission, Report from the Commission of
23 February 2005 based on Article 34 of the Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States COM(2005) 63 final; Commission Staff Working Document, Annex to the Report From The Commission based on Article 34 of
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some MSs as mandatory grounds and are considered by others as discretionary rather than optional.118
The EAWFD was amended to include an additional optional ground. Previously, Article 5(1) addressed the issue of trials in absentia119, this has been deleted and the EAWFD amended inserting Article 4a.120 This sets out the grounds for non-recognition of decisions rendered following a trial in absentia and the conditions for its application. In
IB the CJEU interpreted conditions which can be placed on surrender in these
circumstances.121 In Melloni,122 the CJEU considered the strict application of Article 4a. This is discussed further in relation to the right to a fair trial.
the Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States COM(2005) 63 final; Report From The Commission on the
implementation since 2005 of the Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States COM(2007) 407 final; Report from the Commission of 24 January 2006 based on Article 34 of the Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States (revised version)
COM(2006) 8 final; Report from the Commission to the European Parliament and the Council of 11 April
2011 on the implementation since 2007 of the Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States COM(2011) 175 final
118
Some commentators argue that the optional grounds are in fact discretionary grounds. In the recent case of Case C-306/09 I.B. [2010] I-10341, the CJEU has described them as optional at paragraph 39 (in French “des motifs facultatifs prévus”). These grounds for refusal are referred to in subsequent chapters as they relate to human rights. For a detailed consideration of these grounds and their implementation see: J Komárek, European Constitutionalism And The European Arrest Warrant : In Search Of The Limits Of
“ Contrapunctual Principles (2007) 44 Common Market Law Review; J Wouters and N Frederik, Of Arrest Warrants , Terrorist Offences and Extradition Deals . An Appraisal of the EU ’ s Main Criminal Law Measures against Terrorism after ‘ 11 September’ [2004] Institute for International Law Working
Paper 56; S Peers, Mutual Recognition And Criminal Law In The European Union : Has The Council Got
It Wrong? (2004) 41 Common Market Law Review; L Marin, ‘“A Spectre is Haunting Europe”: European Citizenship in the Area of Freedom , Security and Justice’ (2010); M Fichera,The European Arrest Warrant and the Sovereign State: A Marriage of Convenience? (2009) 15 European Law Journal,
70.
119
The treatment of trials in absentia are further considered in the chapter on the right to a fair trial.
120
Council Framework Decision 2009/299/JHA of 26 February 2009 amending Framework Decisions 2002/584/JHA, 2005/214/JHA, 2006/783/JHA, 2008/909/JHA and 2008/947/JHA, thereby enhancing the procedural rights of persons and fostering the application of the principle of mutual recognition to decisions rendered in the absence of the person concerned at the trial (Trials in Absentia FD)
121
The CJEU stated that Article 4(6) and 5(3) EAWFD ‘must be interpreted as meaning that, where the executing Member State has implemented Article 5(1) and Article 5(3)’ EAWFD into its domestic legal system, the execution of an EAW issued for execution of a sentence imposed in absentia, “may be subject
to the condition that the person concerned, who is a national or resident of the executing Member State, should be returned to the executing State in order, as the case may be, to serve there the sentence passed against him, following a new trial organised in his presence in the issuing Member State.” C-306/09, IB
(n118) §61
122
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It is particularly telling to see what grounds are missing and there are notable omissions which could create distrust, such as the political offence exception and the prohibition against surrendering own nationals. Wouters and Naerts see the logic in precluding 'political offences' stating that if “the regime of a Member State were worthy of rebellion, one should rather have recourse to the mechanism of Article 7 TEU, which would justify suspension of the … [EAWFD, adding that]…in cases of persecution, surrender should, and under most implementing laws will, be refused”.123 This logic is questionable and largely reliant on the political sympathies of the requested MS or the EU as a whole. It also fails to take into account the supremacy of mutual trust. What the exclusion does is add another notch to the MR scoreboard in the sense that it reflects the mutual trust that supposedly exists between MSs.
Whilst some agree that important grounds for refusal are either missing or much needed, others fear that additional grounds, such as proportionality for example, could steer the EAW system back towards traditional extradition.
Grounds are both limited and exhaustive and in practice the surrender appears to be almost automatic. However, those MSs that go beyond the exacting letter of the law are scorned for undermining the principle of Mutual Recognition and raising issues of reciprocity, where if one MS adopts an unmitigated stance that it will not for example surrender its own nationals, other MSs will adopt a similar stance towards it.124
Nevertheless, the introduction of these grounds for refusals has altered MR. MR in criminal matters is arguably a form of accelerated, almost unconditional cooperation, rather than MR in its original (automatic) sense.
123
Jan Wouters and F Naert, Of Arrest Warrants, Terrorist Offences and Extradition Deals: An Appraisal
of the EU's Main Criminal Law Measures Against Terrorism After "11 September", CML Rev, (2004)
Vol.41 909-935, 922
124
See Fichera (n48) 87-88 for a brief overview of reciprocity issues which have already risen in Germany, Spain, Poland and Greece.
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The CJEU has had the opportunity to interpret some of these grounds. The emphasis of its case law is that many of the terms contained in the EAWFD are autonomous
concepts within Union law. For example the meaning of ‘same acts’ under Article 3(2) “must be given an autonomous and uniform interpretation throughout”125
the EU and not by reference to MS interpretation/laws.126
The terms ‘staying in, or is a national or a resident of, the executing Member State’ under Article 4(6), are also to be defined uniformly since they are autonomous concepts in EU law. MSs are not entitled to give a broader interpretation, beyond the EU
definition.127
High importance is also placed by the CJEU to the principle of MR. In interpreting the implementation of Article 4(6) it states that it is an optional ground for refusal, and so where a MS elect to limit situations where surrender is refused, it “merely reinforces the system of surrender introduced by that Framework Decision to the advantage of an area of freedom, security and justice.”128
Such limitations further facilitate surrender “in accordance with the principle of MR set out in Article 1(2) of Framework Decision 2002/584, which constitutes the essential rule introduced by that decision”.129 To this end MS have a “certain margin of discretion” and the objective of ensuring reintegration into society provides a legitimate aim for a MS to limit situations for refusal in a
manner which is consistent to the essential principle – MR.
The object of Article 4(6) is to enable weight to be given “to the possibility of increasing the requested person’s chances of reintegrating into society when the
125
Case C-261/09, Gaetano Mantello [ 2010] ECR I-11477, §38
126
Although, whether a person has been ‘finally judged’ is to be determined with reference to the MS national law under which the judgment was delivered