COM(2020)0270
EUR-Lex

COM(2011)0175

The Commission presents its report on the implementation since 2007 of Council Framework Decision 2002/584/JHA on the European arrest warrant (EAW) and the surrender procedures between Member States, which entered into operation on 1 January 2004. Available statistics compiled for the years between 2005 and 2009 show that between 51% and 62% of requested persons consented to their surrender, on average within 14 to 17 days. The average surrender time for those who did not consent was 48 days. This contrasts very favourably with the pre-EAW position of a one-year average for the extradition of requested persons and has undoubtedly reinforced the free movement of persons within the EU by providing a more efficient mechanism to ensure that open borders are not exploited by those seeking to evade justice.

Nevertheless, the past seven years have also shown that, despite its operational success, the EAW system is far from perfect. Member States, parliamentarians, groups from civil society and individual citizens have all expressed some concerns in relation to the operation of the EAW and in particular its effect on fundamental rights. There are also shortcomings in the way some Member States implement the Council Framework Decision. These include the following;

no entitlement to legal representation in the issuing state during the surrender proceedings in the executing state; detention conditions in some Member States combined with sometimes lengthy pre-trial detention for surrendered persons; the non-uniform application of a proportionality check by issuing states, resulting in requests for surrender for relatively minor offences that, in the absence of a proportionality check in the executing state, must be executed.

From the issues raised in relation to the operation of the EAW it would seem that, despite the fact that the law and criminal procedures of all Member States are subject to the standards of the European Court of Human Rights (ECHR), there are often some doubts about standards being similar across the EU . While an individual can have recourse to the European Court of Human Rights to assert rights arising from the European Convention on Human Rights, this can only be done after an alleged breach has occurred and all domestic legal avenues have been exhausted. This has not proved to be an effective means of ensuring that signatories comply with the Convention’s standards. This situation has informed the Commission’s ongoing work on the implementation of the roadmap for strengthening the procedural rights of suspected or accused persons in criminal proceedings. This report sets out the measures being taken to implement the roadmap. As part of the measures proposed in the roadmap, the paper notes that research on the right to legal advice will examine the issue of representation for requested persons in both executing and issuing states in the course of surrender proceedings.

It also notes that in 2009 the Council adopted Council Framework Decision 2009/829/JHA on the application of the principle of mutual recognition to decisions on supervision measures as an alternative to provisional detention. The Framework Decision introduces the possibility of transferring a non-custodial supervision measure from the Member State where the non-resident is suspected of having committed an offence to the Member State where he/she is normally resident. This will allow a suspected person to be subject to a supervision measure in his normal environment pending trial in the foreign Member State.

On the issue of proportionality , the Commission goes on to note that there is general agreement among Member States that a proportionality check is necessary to prevent EAWs from being issued for offences which, although they fall within the scope of the EAW, are not serious enough to justify the measures and cooperation which the execution of an EAW requires. Several aspects should be considered before issuing the EAW including the seriousness of the offence, the length of the sentence, the existence of an alternative approach that would be less onerous for both the person sought and the executing authority and a cost/benefit analysis of the execution of the EAW. In 2010, the Council included an amendment to the handbook on the EAW in respect of proportionality. The amended handbook now sets out the factors to be assessed when issuing an EAW and possible alternatives to be considered before issuing an EAW. If the amended handbook is followed by Member States, it will provide a basis for some consistency in the manner in which a proportionality check is applied. The Commission endorses this approach and urges Member States to take positive steps to ensure that practitioners use the amended handbook (in conjunction with their respective statutory provisions, if any) as the guideline for the manner in which a proportionality test should be applied.

The report concludes that action is required in the following areas:

Transposition: Member States should take legislative action to address the areas (set out in detail in the tables in the accompanying Staff Working Document) where their implementing legislation fails to comply with the Council Framework Decision on the EAW. Fundamental Rights : there must be implementation of the measures arising from the roadmap on procedural rights for suspects and accused persons to ensure that fundamental rights are protected and to improve the mutual trust that is essential to the continued operation of mutual recognition instruments such as the Council Framework Decision on the EAW. Proportionality: judicial authorities should use the EAW system only when a surrender request is proportionate in all the circumstances of the case and should apply a proportionality test in a uniform way across Member States. Member States must take positive steps to ensure that practitioners use the amended handbook (in conjunction with their respective statutory provisions, if any) as the guideline for the manner in which a proportionality test should be applied. Training: the Commission communication planned for September 2011 on European judicial training is intended to address the need for specific training for both judicial authorities and legal practitioners on the implementation of the EAW and on the new measures for strengthening procedural rights for suspects and accused persons. Implementation of complementary instruments : a considerable amount of work has been done since 2004 on identifying problems and improving the EAW system. There have been four Council Framework Decisions that affect the operation of the EAW, addressing the following issues: (i) in absentia judgments; (ii) conflicts of jurisdiction; (iii) recognition of supervision orders. Their expeditious implementation by Member States may further improve the practical operation of the EAW. Statistics: there are considerable shortcomings in the statistical data available for analysis. The Commission urges Member States to meet their obligation to report. Comprehensive statistics are essential for a proper evaluation of both the successes and shortcomings of the EAW. The Commission will make every effort to address the shortcomings in the questionnaire on EAW statistics and will look at ways of improving the collection of statistics.

COM(2011)0175
EUR-Lex

SEC(2011)0430
EUR-Lex

The Commission presents its report on the implementation since 2005 of the Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States. Its evaluation shows that the arrest warrant is a success. This second report is in response to a call made by the Council on 2 June 2005 to update its previous evaluation (please see the summary of 24/01/2006) to 1 June 2007 with the entry of Romania and Bulgaria into the Union on 1 January 2007.

The report shows how its use has grown year by year, in practice making it easy for judges to get persons handed over within binding time limits that are much shorter than with conventional extradition procedures. The Commission does, however, highlight in this report the transposition difficulties that had to be overcome in 2005, some of them stemming from constitutional requirements.

The total number of requests exchanged between Member States has risen sharply. The European arrest warrant has therefore not only virtually replaced the extradition procedure within the EU, but the use made of it, because of its advantages, is now much more widespread. The remaining cases of non-application mainly concern certain restrictions on the transitional application of the European arrest warrant and the surrender of nationals. These are described in the report.

For the whole of 2005, nearly 6 900 warrants were issued by the 23 Member States that sent in figures, twice as many as in 2004. In over 1 770 cases, the person wanted was traced and arrested. Unofficial figures for 2006 confirm this upward trend from year to year. The warrants were transmitted mainly by Interpol (58% of all those issued) and/or by the Schengen Information System, in the 13 Member States with access to it (52% of the same total). In most of the remaining cases the European arrest warrants were simply sent direct between the Member States concerned . The figure communicated by 23 Member States for the total number of European arrest warrants received was over 8 500, i.e. more than the number issued, since a European arrest warrant can be sent to more than one Member State.

Overall the figures available for 2005 confirm that with the European arrest warrant, surrenders are effected within much shorter time limits than in the past. On average the time taken to execute requests, which used to be around a year under the old extradition procedure, has been reduced to under 5 weeks and even 11 days in the frequent cases where the person consents to surrender (the corresponding figures for 2004 being around 45 and 15 days respectively). However, this average must not hide the fact that certain countries (IE and UK) take much longer and even exceed the maximum time limits set in the Framework Decision, something the Commission very much regrets. In 2005, the Commission noted around 80 cases (scarcely 5% of surrenders) where the 90-day time limit set in Article 17(4) of the Framework Decision could not be respected. The Commission would point out that while all delays are systematically reported to Eurojust by certain countries, this is not true for all of them and would urge all Member States to make the appropriate efforts.

The report confirms the general conclusions drawn with respect to 2004. Despite an initial delay of up to 16 months (IT) and problems caused by constitutional difficulties in at least two Member States (DE during part of 2005 and 2006, CY), the implementation of the Framework Decision has been a success. The European arrest warrant has been operational throughout all the Member States including BU and RO since 1 January 2007. Its positive impact is borne out daily in terms of judicial control, efficiency and speed, always with full respect for fundamental rights. Although the need for certain improvements in transposition became apparent in 2005, these corrections remain peripheral to the process. The list of those Member States which need to make an effort to comply fully with the Framework Decision (notably CZ, DK, EE, IE, IT, CY, LU, MT, NL, PL, SI, UK) is still a long one.

COM(2007)0407
EUR-Lex

SEC(2007)0979
EUR-Lex

The Commission is submitting this revised report evaluating the application of the Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States (the Framework Decision) pursuant to Article 34 of the Decision. The revision concerns only the Italian legislation, adopted since the presentation of the original report. A second report, planned for June 2006, will update the evaluation for all the Member States in the light of the conclusions of the JHA Council of 2 June 2005. The evaluation is important, since the arrest warrant is the first, and most symbolic, measure applying the principle of mutual recognition.

The following points are made:

- In 2004 the arrest warrant thus gradually replaced extradition between Member States and appears even to have surpassed it in volume terms. Despite some problems, there are no major difficulties at this stage with the transposal of the list of 32 categories of offence for which double criminality is abolished, with the notable exception of one country’s legislation, which appears not to recognise the principle (Article 2: IT). It is still regrettable that a few Member States thought it did not cover attempted and complicit acts (Article 2: EE, IE).

- The surrender of requested persons between Member States, pursuant to the Framework Decision (Article 1(1)), has become entirely judicial. This is attested to, for example, by the fact that the large majority of Member States authorises direct contact between judicial authorities , at the different stages of the procedure. However, certain Member States have designated an executive body as the competent judicial authority for all aspects or some.

- Guaranteeing greater effectiveness, the Framework Decision limits the grounds for refusing a surrender between Member States, ruling out any decision based on political expediency. In general, the framework it provides has been respected. The effectiveness of the arrest warrant can be gauged, provisionally, from the 2 603 warrants issued, the 653 persons arrested and the 104 persons surrendered up to September 2004. It should also be noted that refusals to execute a warrant so far account for a modest share of the total warrants issued. The full picture can only be an improvement on these provisional figures, based as they are on returns from only about twenty Member States. In the absence of statistics, it can be mentioned that IT has, since May 2005, effectively surrendered a number of persons to whom a European arrest warrant applied, including in an important case concerning terrorism.

- The number of grounds for refusal taken over from the Framework Decision ranges from 3 to 10, depending on the Member State. All Member States have transposed the three mandatory grounds , with a few exceptions. However, the optional grounds transposed vary considerably from one Member State to the next: some States have only adopted them in part or have left a greater margin of discretion to their judicial authorities, while others have made them all mandatory. Although possible in principle, this choice of transposal is open to criticism if it goes so far as to make executing judicial authorities themselves prosecute rather than accept an arrest warrant when proceedings are in progress in the issuing Member State .

- The surrender of nationals - a major innovation in the Framework Decision – has now become fact, except where exempted by the Decision itself. Most Member States, however, have chosen to apply the condition that, in the case of their nationals, the sentence should be executed on their territory. In the process, most Member States have opted for equal treatment for their nationals and their residents.

There are still some difficulties, however. Yhe practice of certain judicial authorities which, while invoking their powers, refuse to execute arrest warrants in the case of nationals, but do not themselves carry through the prosecutions, would appear to be regrettable.

- The introduction of grounds not provided for in the Framework Decision is disturbing. The additional ground of refusal based on ne bis in idem in relation to the International Criminal Court, which enables certain Member States to fill a gap in the Framework Decision, is not an issue here. The same applies to the explicit grounds of refusal for violation of fundamental rights or discrimination, which two thirds of the Member States have chosen to introduce expressly in various forms. However legitimate they may be, even if they do exceed the Framework Decision, these grounds should only be invoked in exceptional circumstances within the Union. It is even more important to emphasise the introduction of other reasons for refusal, which are contrary to the Framework Decision, such as political reasons, reasons of national security or ones involving examination of the merits of a case, e.g. of its special circumstances or the personal or family situation of the individual in question.

- The average time taken to execute a warrant has fallen from more than nine months to 43 days. This does not include those frequent cases where the person consents to his surrender, for which the average time taken is 13 days.

- The evaluation of the arrest warrant from the standpoint of guaranteeing fundamental rights leads one to compare the current situation with what went before. Several positive features deserve to be emphasised. The Framework Decision is more precise as regards ne bis in idem . It has strengthened the right to the assistance of a lawyer, to examine the appropriateness of keeping a person in detention, and to the deduction from the term of the sentence of the period of detention served. More generally, as a result of the speed with which it is executed, the arrest warrant contributes to better observance of the "reasonable time limit". Through its effectiveness, in particular in obtaining the surrender of nationals of other Member States, it makes it easier to decide to release individuals provisionally irrespective of where they reside in the EU.

The Commission concludes that despite an undeniable initial delay, the European arrest warrant is now operational in most of the cases provided for. Its impact is positive, since the available indicators as regards judicial control, effectiveness and speed are favourable, while fundamental rights are observed.

This overall success should not make one lose sight of the effort that is still required for certain Member States (in particular CZ, DK, EE, IE, IT, LU, MT, NL, SI, UK) to comply fully with the Framework Decision and for the Union to fill certain gaps in the system.

As this evaluation has been made at an early stage, it remains provisional; it will need to be reviewed, in particular as more systematic information comes in.

COM(2006)0008
EUR-Lex

In virtue of Article 34 of the Council Framework Decision of 13 June 2002, the Commission has presented a report on the European arrest warrant and the surrender procedures between Member States. The evaluation criteria adopted by the Commission for this report are, firstly, the general criteria normally used nowadays to evaluate the implementation of framework decisions (practical effectiveness, clarity and legal certainty, full application and compliance with the time limit for transposal), and, secondly, criteria specific to the arrest warrant, principally the fact that it is a judicial instrument, its effectiveness and its rapidity.

Despite an undeniable initial delay, the European arrest warrant is now operational in most of the cases provided for. Its impact is positive, since the available indicators as regards judicial control, effectiveness and speed are favourable, while fundamental rights are equally observed.

This overall success should not make one lose sight of the effort that is still required by Italy and certain other Member States (in particular CZ, DK, EE, IE, LU, MT, NL, SI, UK) to comply fully with the Framework Decision and for the Union to fill certain gaps in the system.

As of 1 November 2004, all the Member States had transposed the Framework Decision except Italy, which still has its draft legislation before Parliament. All Member States have adopted specific legislation and several had to revise their constitutions in order to do this. However, some (DK and EE) have dispensed with binding rules for certain provisions, which do not meet the requirement of legal certainty. In practice, from 1 January 2004, eight Member States applied the arrangements for the arrest warrant between them; by the date of enlargement the number had risen to 16, and since 14 January 2005, the date of first application in CZ, there have been 24.

In 2004 the arrest warrant thus gradually replaced extradition between Member States and appears even to have surpassed it in volume terms. Only a handful of Member States exercised the right to limit its temporal or substantive scope. As regards the former aspect, some did so in accordance with the Framework Decision, once this had been adopted, in particular by ruling out the warrant's application to acts that occurred before a given date (FR, IT, AT). Others, however, wanted to make such a limitation without complying with the Framework Decision, whether with regard to procedure (CZ, LU, SI), the substance of the limitation (CZ, LU) or even the effective date (CZ). The extradition requests which they continue to present therefore risk being rejected by the other Member States.

Obligations were also breached by those Member States which reduced the substantive scope as regards either the minimum thresholds for sentences (NL, AT, PL ; UK), or certain categories of offence, for which they have reintroduced (BE, PL, SI), or created the risk of reintroducing (EE,

EL, FR), a check on double criminality. However, there are no major difficulties at this stage with the transposal of the list of 32 categories of offence for which double criminality is abolished. It is remains regrettable that a few Member States thought it did not cover attempted and complicit acts (EE, IE).

COM(2005)0063
EUR-Lex

T5-0044/2002
OJ C 284 21.11.2002, p. 0122-0193 E

Debate in Parliament

T5-0044/2002

A5-0003/2002

A5-0003/2002

14867/1/2001

14867/1/2001

2396

T5-0634/2001
OJ C 153 27.06.2002, p. 0035-0284 E

T5-0634/2001

2385

A5-0397/2001

A5-0397/2001

EUR-Lex
OJ C 332 27.11.2001, p. 0305 E
COM(2001)0522

EUR-Lex
COM(2001)0522