In this final section of the report the various discussion points, conclusions and recommendations will be presented. The thesis has attempted to link the legal discussion of the functioning of the EAW instrument with a social science research approach. The aim of this crossover was to study whether the Dutch Amsterdam Court’s performance differs between Member States and, if yes, to which this occurs and on which factors the difference is based. In order to appropriately study this issue a mixed-method case study of the Amsterdam court’s surrender procedures towards 9 other Member States, as well as a study of the network coordinating activities performed by Eurojust and the EJN was set up. After an introduction into the EAW instrument in chapter 2, the thesis continued by suggesting several factors that could influence the execution of the EAW in chapter 3, which form the independent variables of the research. First of all it was suggested that cultural differences might play a role in the performance of the Amsterdam court towards various Member States. Cultural variations can result in differing expectancies in actors, which in turn could cause communication errors, mistrust and a lack of mutual identification to arise between EAW actors. Therefore it was hypothesized that greater cultural differences would result in a less well- performing surrender relationship between the Amsterdam court and the issuing authorities of that Member State. Furthermore, it was suggested that a relatively high degree of centralization of EAW authorities in a Member State would be conducive to a good performance on part of the Amsterdam Court, as centralized authorities would be able to gather more experience with the EAW and would be better integrated into the network. The third independent variable that was suggested is corruption. Building on the basis of earlier evaluations of the EAW framework, which mentioned corruption as an important source of mistrust between the authorities of the Member States, it was suggested that this mistrust could also generate differences in output such as the frequencies of allowed surrenders, turnover time, etc. Finally, the insights on the functions a network administrative organization – or NAO – can play in coordinating network activities and fostering mutual trust was added as the fourth independent variable for the research.
Subsequently, chapter three and four elaborated on the techniques and methods that would be utilized for the execution of the research. On the basis of the independent variables culture, centralization and corruption, three Member States that are substantially dissimilar to the Netherlands, three similar Member States and three intermediate Member States were selected. The similar Member States are Sweden, Finland and Germany, the dissimilar group is comprised of Bulgaria, Romania and Poland, and the intermediate group features Belgium, the UK and Spain. For the measurement of the surrender relationship of the Amsterdam court an organizational performance approach was chosen. The three EU policy goals of a high surrender speed, a high degree of automaticity with regard to the surrender of persons and an adequate judicial protection were distilled as main goals coinciding with the organizational performance aspects of external efficiency, external effectiveness and external fairness. Furthermore, Eurojust and the EJN were included in the study as a way of also investigating the coordination features of the EAW network.
A multi-method case study method was subsequently presented in order to adequately ascertain how the Amsterdam court performed and to what extent the coordination by Eurojust facilitated the performance of national authorities. Firstly, through a legal analysis the implementation of the EAW was considered in the various Member States. Legal analysis was also used to analyze the 116 sampled Amsterdam court
105 cases and provide in-depth country reports on the surrender speed, barriers and facilitating factors for automatic surrender and the appropriate judicial protection of requested persons. The insights from the analysis of the cases was then used for a discussion of several recurring issues. Some of these pertained to the Dutch executing side, while others pertained to the issuing Member State. A first example of the issues on the Dutch side are the relatively high median and average turnover times. While confirmation by a research which has access to the exact arrest dates would be beneficial in this regard,172 the court
turnover times considered in this research already show that often more time than the 60 day time limit passes before surrender occurs. Cases that have been postponed at least once are almost certain to breach the time limits laid down in the EAW. Recurrently, the Amsterdam court emphasizes that it had to extend the time limit from 30 to 60 days due to the heavy workload of the court.173 This points to a capacity
problem in the Amsterdam court, although it must also be emphasized that the time limits themselves are substantially strict. Another example of a Dutch issue, which should be resolved in the near future, is that for a long time the Amsterdam court did not invoke the residency refusal ground for acts it did not have jurisdiction on, the argument being that not allowing surrender would allow the indicted person to avoid justice. Nevertheless, this lead to a persistent discrimination between nationals and residents that have (allegedly) committed acts to which the Netherlands can apply jurisdiction on the one hand, and residents which have to be surrendered due to a lack of jurisdiction on the other. In 2014, a partial solution to this problem has been implemented in the form of new legislation implementing broader extraterritorial jurisdiction for several crimes. While extraterritoriality has its own controversial discussions (see for instance, Scott, 2014), this may partially alleviate the problem of discrimination against residents in the Netherlands in EAW cases. Furthermore, in 2013 the Amsterdam district court nuanced its earlier approach by stating that when an unequivocal return guarantee is provided, the jurisdiction criterion goes beyond what is necessary. Future research should keep these development in mind and analyze whether subsequent case law will continue this precedent. Other recurrent issues, in particular in the surrender relationships with Eastern European states, included low quality guarantees, insufficient information being provided, non-responses to additional information requests, etc. Furthermore, trial in absentia EAW’s in which the issuing country no longer allows for the possibility for a retrial often lead to problems, as was noted in for instance the Belgian, Romanian and Polish reports. As retrial guarantees were often impossible to give out or insufficiently drafted, this lead to a relatively high number of refusals in the sampled cases.
After the various country reports and some observations on recurring legal trends, a quantitative approach was also presented. In this portion of chapter 6 substantial attention was devoted both to a comparison of the three country groups and a longitudinal analysis of the EAW instrument. An interesting result from the country group comparisons was that while the Amsterdam court’s cases on surrenders towards more dissimilar countries did show a relatively higher turnover time, a somewhat higher amount of paragraphs of analysis and relatively more information requests, there was no substantial evidence to support the claim that the amount of surrenders versus the amount of refusals was also affected by these factors. It may be inferred from this that for cases involving the surrender of a person towards more dissimilar countries with regard to culture, the extent of corruption problems and the extent of
172 It will be recalled that the EAW Framework Decision’s time limits start running on the date a requested person
has been arrested in the executing state.
173 To mention only a few examples of relatively problem-free cases that received such a 30 day extension:
Amsterdam district court, 13-04-2008, ECLI:NL:RBAMS:2007:BB0215; Amsterdam district court, 06-07-2012, ECLI:NL:RBAMS:2012:BX1729; Amsterdam district court, 28-02-2014, ECLI:NL:RBAMS:2014:949
106 centralization do encounter problems in the intermediate stages, but that the actors involved manage to solve these procedural problems in order to generate a consistent output of surrenders. This is certainly a positive point in the performance of the Amsterdam court, as it illustrates that the problems that do occur are eventually overcome for the most part.
Subsequently, the longitudinal analysis showed a remarkable amount of consistency in the period 2006- 2014. While turnover times show no substantial increase or decrease, it is notable that both the median and average turnover times are higher in all periods than the 60 day time limits imposed by the EAW Framework Decision. Once again it must be emphasized that a more exact approximation can be made on the basis of arrest dates, but that the start date of the court stage – which initiatives after arrest already indicates that time breaches are consistently a problem for the Amsterdam court’s surrender performance. While there is a small face value indication that the amount of surrenders versus the amount of refusals has slightly changed in favor of the latter, this was not so substantial that the difference formed a statistically significant result. While two of the main output indicators therefore remained substantially consistent, some developments were nevertheless noted in other criteria. One interesting development is the relative increase of execution of sentence cases in the sample, which is probably due to the higher amount of EAW cases from Bulgaria and Romania in recent years. Other samples or later studies may therefore find a more consistent number. Another development is the observed increase in the amount of cases in which a double criminality is necessary. This signals a shift in the type of requests made by issuing authorities to the Netherlands from list offences to non-list requests. Worrying from the perspective of the Amsterdam court’s adherence to the time limits imposed by the EAW Framework Decision is the relative increase of postponed cases. As mentioned earlier, these cases often breach the time limits of the EAW, decreasing turnover times and surrender speed.
Finally, the role of the EJN and Eurojust in facilitating and coordinating interactions between Member State authorities was discussed. In chapter three it was suggested that Eurojust, considering its tasks and network position as a centralized actor functioning as an intermediary, could be able to fulfill the role of an NAO. Nevertheless, the interview conducted at Eurojust revealed that this suggestion was wrong. The role of Eurojust is more specialized, as it performs legal services for specifically complicated cases, and only performs a coordinating function in this context. The EJN other hand, while being organized as a network of contact points within the EAW system, does focus on information sharing, easier access for other network members and facilitating exchanges. It thus incorporates some of the activities that would be expected of an NAO, although its structure does not allow for a governing or coordinating role. Expanding upon the roles of either the EJN or Eurojust could therefore perhaps add to the coordination in the EAW network and indirectly add to the fostering of mutual learning and mutual trust. Parts of this role could be fulfilled by the establishment and adequate maintenance of databases of jurisprudence and warrants, as suggested by the interview respondents.