Surrendering British Justice: European Court of Justice Considers European Arrest Warrant

You may remember that in June 2002, the EU Council of Ministers adopted a framework decision on the European arrest warrant (EAW) and the procedures of surrender between Member States. The EU’s Member States were required to introduce legislation to bring the European arrest warrant (EAW) into force by 1 January 2004. The European arrest warrant replaces previous extradition procedures between the EU’s Member States. It aims at facilitating and speeding up surrender procedures for suspected criminals within the EU yet it raises major issues on justice.

The European arrest warrant is executed by the Member States on the basis of the principle of mutual recognition which means that a judicial authority decision of a Member State requiring the arrest of a person should be recognized and executed in the other EU´s Member States. Therefore, under the Framework Decision, if the 32 offences listed “are punishable in the issuing Member State by a custodial sentence or a detention order for a maximum period of at least three years and as they are defined by the law of the issuing Member State, shall, under the terms of this Framework Decision and without verification of the double criminality of the act, give rise to surrender pursuant to a European arrest warrant.” It is hard to believe but dual criminality – which means that the act in question must be a crime not only in the country in which it took place but also in the country of surrender – was abolished for 32 categories of offences. Furthermore, under the EAW, the EU’s Member States can no longer refuse to surrender their nationals but they can ask for their return in order to them serve sentences on its territory.

The European arrest warrant is a clear example of loss of Member State sovereignty. It should be observed that, under the European arrest warrant, someone could be extradited from Britain for offences which are crimes in another EU´s Member State but not here. This is a matter of justice! For instance, a British citizen could be surrendered for offences such as Holocaust denial, which is illegal in Germany and Austria but not in the UK. The EWA, quite plainly, undermines British law.

Not all the EU's Member States met the implementation deadline of 31 December 2003 – therefore, on 1 January 2004, the European Arrest Warrant (EAW) only entered into force in Belgium, Denmark, Finland, Ireland, Portugal, Spain, Sweden and the UK.

It should also be noted that not all the offences listed are considered criminal offences under the criminal law of all EU´s Member States. We have 27 different legal systems. Therefore, there is a blatant problem with the EU arrest warrant. At least with the previous extradition procedures, the dual criminality principle was not waived.

There have been arguments, in different Member States, that implementing the Framework Decision breaches national constitutional rights. For instance, in July 2005, the German Constitutional Court declared it “unconstitutional” to implement the Council Framework Decision on the European arrest warrant and the surrender procedures between Member States in German Law.

Earlier, in 2004, the association ‘Advocaten voor de Wereld’ brought an action before the Belgium Court of Arbitration (Arbitragehof) seeking the annulment of the Belgian Law on the European arrest warrant of 22 December 2003 which transposed the Framework Decision on the arrest warrant into national law. Consequently, the Arbitragehof referred for a preliminary ruling to the Court of Justice several questions regarding the validity of the Framework Decision. The ‘Advocaten voor de Wereld’ has argued that the subject-matter of the European arrest warrant should have been regulated by a convention and not by a framework decision. It also considers that waiving the verification of double criminality is contrary to the principle of legality in criminal matters as there is no precise and clear definition of the offences.

It has stressed that “the offences set out in that list are not accompanied by their legal definition but constitute very vaguely defined categories of undesirable conduct. The judicial authority which must decide on the enforcement of a European arrest warrant will have insufficient information to determine effectively whether the offences for which the person sought is being charged, or in respect of which a penalty has been imposed on him, come within one of the categories mentioned in Article 5(2) of that Law.”

Unsurprisingly, the European Court of Justice did not uphold the Belgium challenge against the European arrest warrant. It is a shame, as Anand Doobay, lawyer at the UK law firm, Peters and Peters has said (according to EUObserver): “if the European Court of Justice finds in favour of the arguments made by the NGO then this could have a dramatic effect on the legality of the Framework Decision itself, not just in Belgium.”

The ECJ gave its judgment on 3 May 2007. The Court ruled that the Framework Decision on the European arrest warrant is valid. The Court has stressed that: “the European arrest warrant could equally have been the subject of a convention, it is within the Council’s discretion to give preference to the legal instrument of the framework decision in the case where, as here, the conditions governing the adoption of such a measure are satisfied.” According to the ECJ “the Framework Decision does not seek to harmonise the criminal offences in question in respect of their constituent elements or of the penalties which they attract.” Therefore, “while Article 2(2) of the Framework Decision dispenses with verification of double criminality for the categories of offences mentioned therein, the definition of those offences and of the penalties applicable continue to be matters determined by the law of the issuing Member State.”

Another clear case of what happens when European Member States surrender justice policy to the EU – The European Arrest Warrant is a clear example of a loss of state sovereignty.