One such issue comes up in regards to the principle of double criminality, which is a concept in criminal law that extradition should only occur when the offence for which the accused is being requested constitutes a crime in both involved countries. This is in line with Art. (1)(2) of the Decision, which acknowledges the principle of mutual recognition. However, in Art. (2)(2) it is stated that 32 specified acts – such as terrorism, corruption or murder – give rise to an obligation for the state to apprehend and hand over the accused “without verification of the double criminality of the act”. Therefore, double criminality is abolished in a wide range of criminal acts. This consequently may have major effects on the principle of nullum crimen sine lege praevia – the legality principle, laid down in Art. 7(1) of the ECHR. Naturally, criminal acts can be defined in various ways in different jurisdictions, which raises the issue of one’s ability to have proper understanding of what constitutes a criminal act. The CJEU, however, ruled in Advocaten voor de Wereld VZW v Leden van de Ministerraad that based on the seriousness of the listed offenses, minor discrepancies between the definitions of different jurisdictions are not enough for the breach of the legality principle.
Another criticism of the EAW is the question of one of the EU’s fundamental principles, namely the principle of proportionality. Criminal acts can take various shapes and forms, and states have different standards for sentencing, which is the main threshold to have an EAW issued. The concept of the arrest warrant has therefore come under fire when an EAW was issued for a theft of a piglet or possession of less than a gram cannabis. A case-to-case examination would probably suggest that these offences should not be eligible for an EAW based on the principle of proportionality. However, some countries have objected to this. The argument can be made that even the piglet thief should face the consequences of his or her actions regardless of where they are. Is there a legal argument to be made that the sole act of crossing a border should prevent the thief from facing justice, and the victim from receiving it? The Council of the European Union put forward the – very convincing – argument that in order to safeguard the union’s resources, proportionality requirements should be inserted.
Further questions about the EAW have been raised in connection to fair trial rights, human rights issues, and much more. The European Criminal Bar Association have been actively providing feedback about case development and the EAW’s shortcomings, while drafting a handbook for defence attornies all around the EU. The latest modification to the Framework Decision dates back to 2009 when amendments were made to trial procedures in absence of the accused. Since then clarifications have been primarily happening on the judicial level, with the CJEU dealing with an increasing number of preliminary references about the EAW. The latest development of the EAW is a report published by the European Commission in 2020. In this the emphasis lies on the successful apprehension of more than 7000 criminals in the EU. According to the record, most Member States have implemented tools to ensure the proportionality test, in case an EAW is issued. The record however also acknowledges the slowing speed of progress and the remaining questions.
To conclude, it is clear that the European Arrest Warrant implemented by the Framework Decision has been proven useful and improved the cooperation of the law enforcement agencies of the Member States. With the growing number of preliminary references and countries abiding by the recommendations of the Council, there is hope for a safer and more efficient future in Europe. However, the aforementioned must not be ignored. Possibly, after 12 years and multiple valuable CJEU rulings later, it is time to address the remaining shortcomings of the European Arrest Warrant.
Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States (2002/584/JHA)
“European Arrest Warrant” (European Commission – European CommissionAugust 9, 2021) < https://ec.europa.eu/info/law/cross-border-cases/judicial-cooperation/types-judicial-cooperation/european-arrest-warrant_en > accessed September 21, 2021
Council Framework Decision (n.1) Art.2(2)
Case C-303/05 Judgment of the Court (Grand Chamber) of 3 May 2007. Advocaten voor de Wereld VZW v Leden van de Ministerraad para. 57-60
Council of the European Union, 10975/07
“FTI Launches Justice In Europe Campaign” (FTI launches Justice In Europe campaign | Publications | Fair Trials International) < https://web.archive.org/web/20120315053442/http://www.fairtrials.net/publications/article/fti_launches_justice_in_europe_campaign > accessed September 21, 2021
“ECBA Handbook on the EAW for Defence Lawyers” (Home) < https://www.ecba.org/content/index.php/projects/european-arrest-warrant > accessed September 21, 2021
“Commission Reports on European Arrest Warrant” (EJN) < https://www.ejn-crimjust.europa.eu/ejn/NewsDetail/EN/718/H > accessed September 21, 2021