European arrest warrant revisited

I am working on a project funded by the European Commission looking at the implementation of the European arrest warrant, called the EAW-Rights project, and awarded to the Council of Bars and Law Societies of Europe (CCBE), and the European Lawyers Foundation.

The EAW is one of the justice provisions into which the UK has opted – and which will be sorely missed if Brexit occurs, because the UK will presumably have to return to the bad old days of lengthy extradition proceedings of UK suspects from the EU, and vice versa, unless some special arrangements are made to remain part of the EAW.

A project which looks at the implementation of laws around the EU is always useful, not only for seeing whether England and Wales maintains the highest standards of protections for the defence, but also for learning about good practices in other systems.

For instance, Austria is building a system of access for lawyers to secure online criminal court files, to allow such access on a daily basis; Estonia does not allow a suspect or defendant to waive the right to a lawyer; the Letter of Rights in Finland and Poland given to suspects and defendants contains several more rights than the minimum required under the law – that sort of thing. We chiefly learn by comparing ourselves to others.

The EAW is generally considered a great success, the most successful criminal law instrument developed by the EU. But it has problems, which this new project will look at from the defence perspective. The difficulty most commonly known about in the UK, for instance, is the disproportionate use of the EAW by some member states. Cases have been reported of EAWs being issued for stealing two tyres, possessing 0.15 grams of heroin, stealing piglets or counterfeiting 100 euros.

Poland and Romania have led the field in this alleged abuse.

This has led to another problem, which is that some member states - the UK and Ireland lead the field here - have asked for additional information when they are on the receiving end of an EAW request, acting as if they do not trust anything about others’ systems.

An example has been given by Spain where Ireland asked for the EAW to be re-issued five times by the Spanish authorities, with questions including whether the street number preceded rather than followed a street address, and why a single word was typed in lower case in the address section of the EAW whereas in the translated version it was all in lower case. Both sides in the argument, as we see, are capable of petty abuses.

Another difficulty - some say abuse - arises out of the EAW being used before the case is trial-ready. Some of this arises out of very different criminal law procedures. Common law countries take the strict view that the EAW should be issued only for the purposes of a trial on the charge specified in the warrant, as opposed to the continuation of a fact-finding investigation.

But in Spain, to give just one example, the domestic criminal code provides that, once the identity of the suspect is established, the individual must be brought before an investigating magistrate and given the opportunity to comment on the case against him or her. This mandatory obligation arises prior to a formal charge decision being taken. You can see why there might be a dialogue of the deaf on this point.

Detention is the final point worth mentioning in this brief summary. Here again there are disputes. There are two main focuses: the different approach in member states regarding pre-trial detention, particularly where a non-national is concerned, which can obviously undermine trust between states; and the conditions of detention in some member states, where the risk of inhuman and degrading treatment or punishment has been recognised as a potential ground for refusing to execute an EAW.

There are two preliminary references to the Court of Justice of the European Union - C 404/15 and C 659/15 - which relate to this latter question, which should settle the scope for refusal on this point.

The European Commission recognises that - despite its success - there is a host of problems with the EAW, only some of which I have mentioned here. It is now working on a handbook for practitioners (whom they identify principally as judges and prosecutors), which it aims to finalise later this year with the help of member states. There is an existing European Council handbook, but it is not considered to be of much help in resolving these difficult questions.

If any practitioner out there has experiences of the way in which the EAW is implemented, which they would like to share with the EAW-Rights project, please contact me.

Jonathan Goldsmith is a consultant and former secretary-general at the Council of Bars and Law Societies of Europe, which represents around a million European lawyers through its member bars and law societies. He blogs weekly for the Gazette on European affairs