European Arrest Warrant

The European Arrest Warrant (EAW, or more rarely, EUAW) is an arrest warrant to allow the arrest of criminal suspects and their transfer for trial or detention which is valid throughout the states of the European Union (EU). The Arrest Warrant is an attempt to increase the speed of extradition throughout EU countries, as well as change the mechanism from having a "political and administrative phase" into a system run by the judiciary.

The Warrant is a judicial judgment by a court of the member state for the arrest or surrender of a requested person that is in another member state. It is designed to meet the needs of justice, liberty and security within a single region. This can only be for the purposes of conducting a criminal prosecution, carrying out a custodial sentence or a detention order. They only applies to criminal acts which have a maximum penalty of at least a year. It can also be applied to prison terms which are at least 4 months long.

History of legislation and implementation by member states

The principle of having a European Arrest Warrant was agreed by EU member states at the Laeken Summit in December 2001, and the Framework Decision was adopted on 13 June 2002. ^{[http://europa.eu.int/scadplus/leg/en/lvb/l33167.htm 2002/584/JHA]} The decision entered into force on 7 August 2003, with the deadline for final implementation by member states to be 31 December 2002.

The Arrest Warrant legislation came into force on 1 January 2004 in eight member states, namely Belgium, Denmark, Finland, Ireland, Portugal, Spain, Sweden, and the United Kingdom. However, by 1 November 2004 all EU States had implemented the legislation except Italy, which did so on 22 April 2005. ^{[http://www.camera.it/parlam/leggi/05069l.htm]}

The EU Commission has evaluated the implementation of the European Arrest Warrant in a report issued in February 2005. ^{[http://ec.europa.eu/justice_home/doc_centre/criminal/doc/com_2005_063_en.pdf]} The report concluded that the legislation was adopted overall successfully although there are differences in the way each member state implemented the directive.

Since the Framework Decision came into operation, the average time taken to execute a warrant is provisionally estimated to 43 days (as opposed to more than 9 months that it was before). This does not include cases where the person consents to surrender, for which the average time taken is 13 days. ^{[http://ec.europa.eu/justice_home/fsj/criminal/extradition/fsj_criminal_extradition_en.htm]}

Use of the Arrest Warrant

The first reported use of the EAW was in January 2004 when a Swedish suspect was arrested in Spain and transferred back to Sweden. ^{[http://news.bbc.co.uk/1/hi/world/europe/3383991.stm]} The EAW was also in the media due to a ruling in Germany in July 2005 that the German law implementing it was unconstitutional. ^{[http://news.bbc.co.uk/1/hi/world/europe/4692375.stm] [http://news.bbc.co.uk/1/hi/world/europe/4695373.stm]} In the same month the EAW was also brought up to allow the extradition of Osman Hussain, one of the suspects in the 21 July 2005 London bombings, back to Britain from Italy. EAW were also issued by Italian prosecutor Guido Salvini in 2005 against 22 CIA agents accused of the kidnapping of Hassan Mustafa Osama Nasr ("Imam Rapito affair").

The EAW has also been used in a way which, according to the Council of the European Union, does not respect the principle of proportionality included in article 5 of the Treaty establishing the European Community. In particular, EAW have been issued in such minor cases as detention of 0.45 grams of cannabis; detention of 1,5 gram of marijuana; detention of 0.15 gram of heroin; detention of 3 ecstasy tablets; theft of two car tyres; driving a car under the influence of alcohol, where the limit was not significantly exceeded (0.81 mg/l) or theft of a piglet [ Council of the European Union, [http://www.statewatch.org/news/2007/jul/eu-eaw-evaluation.pdf Proposed subject for discussion at the experts' meeting on the application of the Framework Decision on the European Arrest Warrant on 17 July 2007 - the proportionality principle] en icon ] .

On the other hand, the EAW failed on other cases with significant media attention. The Irish Supreme Court refused to extradite an Irish citizen to Hungary who was alleged to have killed two children through negligent driving. While the Irish authorities never questioned the facts, the result and the fairness of the Hungarian trial, they argued that the person did not technically "flee" from Hungary, only "failed to return", therefore the legal basis of the extradition through the EAW is not established. [ Courts refuse to extradite man in child death crash [http://www.independent.ie/national-news/courts-refuse-to-extradite-man-in-child-death-crash-995625.html] ] [ Minister for Justice, Equality & Law Reform -v- Tobin 25/02/2008 Irish Supreme Court [http://www.courts.ie/Judgments.nsf/bce24a8184816f1580256ef30048ca50/fd7fbd2d0e422eed802573fc005307fe?OpenDocument] ] [Justice for Marci & Petra Foundation [http://www.ciaran-tobin.com] ]

On 1 October 2008, Frederick Toben was detained at London’s Heathrow Airport under an European Arrest Warrant issued by the German authorities for "publishing 'anti-Semitic and or revisionist' material".David Brown. [http://www.timesonline.co.uk/tol/news/uk/crime/article4861271.ece Historian held at Heathrow over Holocaust denial] , The Times, 2 October 2006. p.17 ] In Westminster magistrates court the next day, he objected to the terms of the warrant, claimed that Britain should not be able to hand him over because it was not in the Schengen agreement and said he had been slandered for his views."This is an abuse of process. This is a legal ambush. It's not British law where the individual still has freedoms," he told the court. He also pleaded with the judge that he should be released and not sent on to Germany."I beg you to let me leave the country, to kick me out, I promise never to return." [Owen Bowcott. [http://www.guardian.co.uk/world/2008/oct/02/secondworldwar.australia Alleged Holocaust denier held at Heathrow] , The Guardian 2 October, 2008]

Controversy in Britain

Frances Gibb commenting in The Times on the detention of Frederick Toben in 2008 under the European Arrest Warrant, states that it is contrary to the assurances that British Ministers gave when the legislation passed through Parliament in 2004, because although denying the Holocaust is a crime in Germany it is not a crime in Britain. At the time "Lord Filkin, then the Home Office Minister, said when the legislation went through Parliament that no one would be extradited for conduct that was legal in Britain". [Frances Gibb . [http://business.timesonline.co.uk/tol/business/law/article4863800.ece Extradition bid raises fears of 'Thought crime' offences] , The Times, 2 October 2006. p.17 ]

Lord Filkin, the minister responsible when the legislation as it passed through parliament, explained in answer to a parliamentary question concerning who would have the power to decide whether or not an offence of racism or xenophobia had taken place, "We have already explained that this is a category rather than a specific offence. It will be for the requesting state to certify that a particular offence falls within the relevant category" [ Hansard March 2002 [http://www.publications.parliament.uk/pa/ld200203/ldhansrd/vo030501/text/30501-13.htm] ]

References

External links

* [http://europa.eu.int/cgi-bin/eur-lex/udl.pl?REQUEST=Seek-Deliver&COLLECTION=oj&SERVICE=all&LANGUAGE=en&DOCID=2002l190p0001 Full text of 2002/584/JHA for implementation of European Arrest Warrant (PDF)]
* [http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:32002F0584:EN:HTML Full text of 2002/584/JHA for implementation of European Arrest Warrant (HTML)]
* [http://europa.eu.int/scadplus/leg/en/lvb/l33167.htm EU Legislation Summary - 2002/584/JHA: European Arrest Warrant]
* [http://www.homeoffice.gov.uk/crimpol/oic/extradition/bill/eaw.html United Kingdom Home Office - European Arrest Warrant]
* [http://www.statewatch.org/news/2004/jan/01euro-arrest-warrant.htm Statewatch - News on EAW]
* [http://news.bbc.co.uk/1/hi/uk/4732219.stm BBC News - "New warrant may speed extradition"]
* [http://www.eurowarrant.net European Arrest Warrant Website]
* [http://www.law.uj.edu.pl/~kpk/eaw/ European Arrest Warrant Database (Jagiellonian University, Krakow, Poland)]