European arrest warrant

A person who has committed a serious crime in an EU country but who lives in another can be returned to the first country to face justice quickly and with little administrative burden.

Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States – Statements made by certain Member States on the adoption of the framework decision.

It improves and simplifies judicial procedures to speed up the return of people from another EU country who have committed a serious crime.

Key Points

The European arrest warrant replaces the extradition system. It requires each national judicial authority to recognise and act on, with a minimum of formalities and within a set deadline, requests made by the judicial authority of another EU country. A warrant asks for a person to be handed over so that:

a criminal prosecution can be conducted;
the person can be placed in custody or detention.
The warrant applies in the following cases:

offences punishable by imprisonment or a detention order for a maximum period of at least 1 year;
where a final custodial sentence has been passed or a detention order has been made, for sentences of at least 4 months.

Proportionate use of the warrant

EU countries must take the following into consideration (non-exhaustive list):

the circumstances and the gravity of the offence;
the likely sentence;
less coercive alternative measures.
When an individual is arrested, he/she must be informed of the contents of the arrest warrant.

In which cases must EU countries refuse to act on a warrant?

If an EU country has already handed down a final judgment on the person concerned for the same offence.
If the offence is covered by an amnesty in the EU country asked to hand over the perpetrator.
If the person concerned may not be held criminally responsible by the EU country asked to act on the warrant, owing to his/her age.

Rules to ensure procedural rights in arrest-warrant proceedings

These include:

Directive 2010/64/EU on the right to translation and interpretation in criminal proceedings;
Directive 2012/13/EU on the right of subjects to be informed of their rights;
Directive 2013/48/EU on the right to have access to a lawyer and the right of persons in custody to communicate with family members and employers.
Room for improvement

A 2011 European Commission report found that although the European arrest warrant was very successful in helping EU countries fight crime, several areas could be improved further, including:

transposition;
correct application;
proportionality;
ensuring procedural rights.
For further information, see European arrest warrant on the European Commission’s website.

References

Framework Decision 2002/584/JHA

Framework Decision 2009/299/JHA

Directive 2010/64/EU of the European Parliament and of the Council of 20 October 2010 on the right to interpretation and translation in criminal proceedings (Official Journal L 280 of 26.10.2010, pp. 1-7).

Directive 2012/13/EU of the European Parliament and of the Council of 22 May 2012 on the right to information in criminal proceedings (Official Journal L 142 of 1.6.2012, pp. 1-10).

Directive 2013/48/EU of the European Parliament and of the Council of 22 October 2013 on the right of access to a lawyer in criminal proceedings and in European arrest warrant proceedings, and on the right to have a third party informed upon deprivation of liberty and to communicate with third persons and with consular authorities while deprived of liberty (Official Journal L 294 of 6.11.2013, pp. 1-12).

Report from the Commission to the European Parliament and the Council 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 of 11.4.2011).

Statements provided for in Article 31(2) of Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedure between Member States (Official Journal L 246 of 29.9.2003, p. 1).

Surrender procedure between EU countries and Iceland and Norway

Agreement between the EU and Iceland and Norway on the surrender procedure between the EU Member States and Iceland and Norway

Decision 2006/697/EC on the signing of the Agreement between the EU and Iceland and Norway on the surrender procedure between the EU Member States and Iceland and Norway

The object of this agreement is to improve judicial cooperation in criminal matters between the EU countries and Iceland and Norway. It aims to institute a surrender procedure to speed up the transfer of suspected and convicted persons and to ensure sufficient controls on the execution of arrest warrants*.
The parties to the agreement undertake to respect fundamental rights, to protect personal data and to refuse to surrender any person on the basis of discriminatory reasons. They also express their mutual confidence in their legal systems and their ability to guarantee a fair trial.
The decision approves the signing of the agreement on behalf of the EU, subject to its being concluded.

Arrest warrant

An arrest warrant may be issued for acts punishable by a custodial sentence or detention order of at least 12 months, or 4 months where a sentence has already been passed or a detention order made.

The arrest warrant containing details of the identity of the requested person, the issuing authority, the sentence and the nature of the offence is transmitted as soon as the requested person is found, and communicated to the Schengen Information System (SIS) or, if this is not possible, to Interpol.
If the person consents to surrender, the final decision to execute the arrest warrant should be taken within 10 days after consent has been given. In other cases, the final decision on the execution of the arrest warrant should be taken within 60 days after the arrest. In some circumstances this can be extended by 30 days.

Double criminality

For offences punishable by a custodial sentence of at least 3 years, the parties can make a declaration to the effect that they do not require the condition of double criminality* for 32 categories of offences as long as the offences carry a sentence of at least 3 years.

These offences include:

  • participation in a criminal organisation,
  • terrorism,
  • trafficking in human beings,
  • sexual exploitation of children and child pornography,
  • illicit trafficking in narcotic drugs and psychotropic substances,
  • illicit trafficking in weapons, munitions and explosives,
    corruption,
  • fraud, including that affecting the EU’s financial interests,
  • laundering of the proceeds of crime,
  • counterfeiting currency, including of the euro,
  • computer-related crime,
  • environmental crime, including illicit trafficking in endangered animal species and in endangered plant species and varieties,
  • facilitation of unauthorised entry and residence,
  • murder, grievous bodily injury,
  • illicit trade in human organs and tissue,
  • kidnapping, illegal restraint and hostage-taking,
  • racism and xenophobia,
  • organised or armed robbery,
  • illicit trafficking in cultural goods, including antiques and works of art,
  • swindling, racketeering and extortion,
  • counterfeiting and piracy of products,
  • forgery of administrative documents and trafficking therein,
    forgery of means of payment,
  • illicit trafficking in hormonal substances and other growth promoters,
  • illicit trafficking in nuclear or radioactive materials,
    trafficking in stolen vehicles,
  • rape,
  • arson,
  • crimes within the jurisdiction of the International Criminal Court,
  • unlawful seizure of aircraft/ships,
  • sabotage.

Grounds for not executing an arrest warrant

Mandatory grounds for refusal:

Judicial authorities will refuse to execute an arrest warrant if the offence is covered by an amnesty, if the person has already been tried for the same acts and the sentence has been or is being served, or if the person cannot be held criminally responsible owing to age.

Optional grounds for refusal:

Countries can refuse to execute an arrest warrant if:

the acts are not an offence in the executing state (except in relation to taxes, duties, customs and exchange);
the person is being prosecuted in the executing state for the same act;
the state has passed a final judgement in respect of the same acts, which prevents further proceedings;
the authorities in the executing state have decided not to prosecute the person or have halted proceedings;
the criminal prosecution or punishment of the requested person is barred by statute in the executing state;
the requested person is a national or resident of the executing state and that state undertakes to execute the sentence;
the offences were committed outside the issuing state or its laws do not permit prosecution for those offences.

Fundamental rights

The agreement states that it respects fundamental rights, and fundamental legal principles laid down in the European Convention on Human Rights, or Article 6 of the Treaty on European Union. It also states that nothing in it should be interpreted as prohibiting refusal to surrender a person on the grounds of sex, race, religion, ethnic origin, nationality, language, political opinions or sexual orientation, or that that person’s position may be prejudiced for any of these reasons.

Political offence exception

Executing a warrant may not be refused on the grounds that the offence is regarded as political by the executing State. The parties can, however, decide that this option is limited to the crimes covered by Directive (EU) 2017/541 on combating terrorism and by Articles 1 and 2 of the European Convention on the Suppression of Terrorism, 1977.

Surrender procedure

The arrested person must be informed at the time of the arrest of the contents of the warrant, the possibility of consenting to surrender to the issuing authority, and the right to be assisted by legal counsel and an interpreter.
The person may remain in detention or be released provisionally, provided that measures are taken to prevent absconding.
The hearing is conducted under the laws of the executing state and in agreed conditions.
The person can choose to voluntarily consent to surrender, if this is with full knowledge of the consequences.
The person should be surrendered where possible within 10 days of the decision to execute the warrant or of the surrender date agreed between the authorities.
The executing authority seizes and hands over property that may serve as evidence or that has been acquired by the person as a result of the offence.
The parties will permit the transit through their territory of a person being surrendered, provided that they have full information about the warrant.

Expenses

All expenses are borne by the issuing State, except those incurred in the territory of the executing State in connection with the execution of an arrest warrant.

Disputes and review

Any disputes should be referred to a meeting of representatives of the governments of the parties and settled within 6 months.

The parties will keep under review the development of the case law of the Court of Justice of the European Union and of the case law of the competent courts of Iceland and Norway, and will carry out a review of the agreement no later than 5 years after it comes into force.

The agreement entered into force on 1 November 2019.

KEY TERMS

Arrest warrant: a judicial decision issued by a country with a view to the arrest and surrender by another country of a requested person, to conduct a criminal prosecution or execute a custodial sentence or detention order. For each warrant there is an issuing State and an executing State.
Double criminality: in extradition/surrender law, a feature by which countries can refuse to extradite/surrender fugitives if the conduct alleged to be a criminal offence in the country requesting extradition/surrender would not be an offence in the country being asked to carry out the extradition/surrender.

DOCUMENTS

Agreement between the European Union and the Republic of Iceland and the Kingdom of Norway on the surrender procedure between the Member States of the European Union and Iceland and Norway — Declarations (OJ L 292, 21.10.2006, pp. 2-19)

Council Decision 2006/697/EC of 27 June 2006 on the signing of the Agreement between the European Union and the Republic of Iceland and the Kingdom of Norway on the surrender procedure between the Member States of the European Union and Iceland and Norway (OJ L 292, 21.10.2006, p.1)

Notice concerning the entry into force of the Surrender Agreement between the European Union, Iceland and Norway (OJ L 230, 6.9.2019, p. 1)

Directive (EU) 2017/541 of the European Parliament and of the Council of 15 March 2017 on combating terrorism and replacing Council Framework Decision 2002/475/JHA and amending Council Decision 2005/671/JHA (OJ L 88, 31.3.2017, pp. 6-21)

 

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