Skip to Main Content

European Criminal Law and the European Arrest Warrant

Selected e-articles

Abstract: December 2020 saw the entry into force of Regulation 1805/2018, the adoption of which is a doubly important event: first, because it confirms the principle of mutual recognition in this sensitive area, following Framework Decision 2006/783/JHA; second, because it establishes mutual recognition by means of a directly applicable legislative measure, a Regulation, adopted in accordance with the ordinary legislative procedure pursuant to Art. 82 (1) TFEU. In order to understand the scope of the Regulation – what types of domestic confiscation are covered – it is important to interpret the EU autonomous concept of “proceedings in criminal matters” (art. 1), “notwithstanding the case law of the European Court of Human Rights” (recital 13). To increase enforcement, it will be crucial to improve harmonisation through the new proposed Directive (May2022).

Abstract: The European Union (EU) increasingly develops and implements policies infused with salient and sometimes conflicting values – for instance, in migration and criminal law cooperation. However, policy implementation studies have not frequently considered how such complex value trade-offs may affect practical implementation within Member States. This article therefore quantitatively and temporally examines the practical implementation of an EU flagship criminal law measure: the simplified extradition system known as the European Arrest Warrant (EAW). Using data on EAWs decided upon by the Dutch Amsterdam District Court, we test the impact of value trade-offs by examining whether (newly introduced) safeguards for the protection of requested persons adversely affect system efficiency (measured through case turnover times). The results suggest that the design of legal tests and adjustments made to the EAW system over time through the Court of Justice of the European Union affect the balance between fundamental rights protection and efficiency in the practical implementation of the EAW.

Abstract: Positive harmonisation of criminal law should only be a subsidiary means of implementing the principle of mutual recognition. Regarding criminal procedural law, this is laid down in Art. 67 TFEU (‘if necessary’) and in Art. 82(2) TFEU (‘to the extent necessary’). However, the effectiveness of the principle of mutual trust depends on the harmonisation of the national laws of the Member States, especially in cases when the national law of the executing State does not regulate at all aspects that may affect the nature or aggravate the sentence which is to be recognised. In this context, we will try to show that, if the alternative execution modality of a custodial sentence is not at all regulated in the national law of the executing State, its recognition and enforcement, with the consequent continuous deprivation of liberty of the sentenced person, could be considered an aggravation of the sentence and thus a violation of Article 8(4) of FD 2008/909. (...).

Abstract: With this special issue and as part of the ELJ's endeavour to foster collaborative research projects on European integration, two of its board members, Jacob Öberg and Valsamis Mitsilegas, threw down a challenge to fellow expertsi n European criminal law: to reflect on the normative foundations of European criminal law. This challenge first took shape with an online symposium organised by Jacob with the support of Örebro University and gathering together the participants in the ELJ special issue. It continued with an exchange on the topic between Valsamis and Jacob hosted by the EU Law Discussion Group at the University of Oxford. It will conclude, following the publication of the special issue, with a conference organised by Valsamis at the School of Law and Social Justice at the University of Liverpool. We hope, nevertheless, that such a challenge will emulate further research and publications on the meaning of European integration through law in other specific fields of EU law as well as transversally.

Abstract: As the ‘cyber’ element infiltrates a significant part of criminal activity, the significance of accessing electronic evidence has risen to a critical level. The storage of this evidence outside the investigating jurisdiction prompted law enforcement authorities to actively explore avenues for collaboration with private service providers on a voluntary basis. This has resulted in the establishment of an informal channel of cooperation, running parallel to those established through mutual legal assistance and the principle of mutual recognition. The EU legislator has recently formalised this type of cooperation by adopting the Regulation (EU) 2023/1543 on European Production Orders and European Preservation Orders for electronic evidence, along with the Directive (EU) 2023/1544. This article provides a comprehensive overview of the key provisions of this Regulation and reflects critically on the paradigm shift the latter seems to expand with respect to the privatisation of law enforcement tasks.

Abstract : En 2002, la création du mandat d'arrêt européen (MAE) inaugure, au sein de l'Union européenne, un nouveau modèle de coopération pénale fondé sur la reconnaissance mutuelle. Si le succès opérationnel du MAE est immédiat et ne se dément pas depuis lors, le modèle sur lequel il est construit suscite des interrogations quant au respect des droits fondamentaux, interrogations auxquelles la Cour de justice de l'Union européenne s'efforce de répondre sans obérer l'efficacité du mandat. Toutefois le modèle du MAE reste en deçà des garanties du procès équitable nécessaires pour en assurer la pérennité.

Abstract: The authors advocate operational improvement of the European Arrest Warrant system. When applying the judi­cial cooperation instruments concerning criminal matters, more attention should be devoted to the requirements of proportion­ality, effective judicial protection, and coherence. The power to issue an EAW should be more circumscribed whereas executing authorities should be allowed more flexibility in the decision making process as far as the execution of an EAW is concerned. The authors conclude by sketching amendments to the legal and practical framework and the efforts required to implement them as well as by addressing the issue of political feasibility.

Abstract: In line with its case-law, in the KL case the Court of Justice of the European Union further reduced the scope of the principle of double criminality in the European Arrest Warrant. This paper serves to critique this decision by taking into consideration the various competing issues at stake and resulting human rights repercussions. Furthermore, it examines the contents and consequences of the CJEU’s interpretation of the said principle, with particular emphasis on the concept of legal interest. Finally, by referring to the judgement in question and the one in the E.D.L. case, this essay advances a different reading of the proportionality of offences and penalties in surrender proceedings.

Abstract: The cross-border character of the designer drugs crimes forced the UE countries to cooperate in criminal prosecution. At first sight, in European Union law, there are proper instruments to enforce such cooperation. The Framework Decision on the European Arrest Warrant introduces the model of cross-border prosecution and abandons the requirement of double criminality in case of the group of the 32 crimes, listed in the Article 2 (2) of the FD EAW. The question is whether such a simple variant of EAW (without checking double criminality) may be enforced in designer drug cases. The work presents an argumentation that the normative meaning of Article 2 (2) of the FD EAW has to be established under European and international law. As long as a particular new drug is not internationally recognized as ‘psychotropic substance’ or ‘narcotic drug’, its trafficking cannot be treated as one of the 32 crimes, mentioned above.

  • The European Arrest Warrant and the Rule of Law; Herlin-Karnell, Ester; Scandinavian studies in law, 2023-05 (2023 69), p.273-286

    Abstract: The first part discusses the meaning of trust ad why it is so important in EU criminal matters. The second part discusses the EAW in the specific context of the Rule of Law. The third part discusses briefly the principle of proportionality. The fourth part concludes by discussing some of the main challenges for the future.

Abstract: The European instrument for judicial cooperation in criminal matters, the European Supervision Order, represents an unexploited potential of application that could provide an alternative to the leading cooperation instrument, the European arrest warrant. The use of non-custodial measures may not only strengthen cooperation between Member States, but also increase the dynamics of the whole procedure. Current judicial cooperation is assessed in this Article in the light of the principle of proportionality of the use of preventive measures in general. An important interpretative guide in this respect is the rule tightening the criteria for recognising the possibility of enforcing a custodial measure developed by the Court of Justice of the European Union in the Aranyosi & Căldăraru case. This judgment is of great importance for the principle of mutual recognition, the application of which seems to be strengthened in the judgments of the Tribunal issued in the dispute over the reform of the Polish judiciary system. Therefore, non-custodial measures that form the core of the European Supervision Order, according to the authors, can be a remedy for the challenges that have arisen. The instrument will also be discussed from the point of view of the criterion of efficiency, interpreted, inter alia, as ensuring equal implementation of the objectives of the procedure.

Abstract: This paper aims to bring to attention certain optional reasons for refusing the execution of a European arrest warrant, situations in which the courts can defeat the principle of mutual recognition and trust between the judicial authorities of the European Union states, which represents the “cornerstone” of judicial cooperation in criminal matters. The judicial enforcement authorities cannot refuse to execute a European arrest warrant except for reasons resulting from the Council Framework Decision No. 2002/584/JAI of 13 June 2002, however, in practice, the optional reasons for non-execution often raised problems, the wording of article 4 and article 4a leaving a margin in the judgment of the courts.

Abstract: With this special issue and as part of the ELJ's endeavour to foster collaborative research projects on European integration, two of its board members, Jacob Öberg and Valsamis Mitsilegas, threw down a challenge to fellow expertsin European criminal law: to reflect on the normative foundations of European criminal law. This challenge first tookshape with an online symposium organised by Jacob with the support of Örebro University and gathering togetherthe participants in the ELJ special issue. It continued with an exchange on the topic between Valsamis and Jacobhosted by the EU Law Discussion Group at the University of Oxford. It will conclude, following the publication of the special issue, with a conference organised by Valsamis at the School of Law and Social Justice at the University of Liverpool. We hope, nevertheless, that such a challenge will emulate further research and publications on the meaning of European integration through law in other specific fields of EU law as well as transversally.

Abstract: Based on the principles of mutual trust and mutual recognition, the Framework Decision on the European Arrest Warrant often gives rise to conflicts between these principles and the fundamental rights of individuals. The Court of Justice of the European Union (the Court) has forcefully underlined on many occasions the cardinal importance of those principles for the institutional balance and the autonomy of EU law, noting that they allow an area without internal borders to be created and maintained. As a result, member states are not simply prohibited from making the fulfilment of their mutual recognition obligations conditional on the observance of their own constitutional standards of protection of fundamental rights. They are also not allowed in principle to ascertain whether another member state has observed in a particular case the fundamental rights of individuals as protected by EU law.

Abstract: The issue of equality between European Union (EU) citizens and third-country nationals in the implementation of European arrest warrants is presented. The case of O.G. v. Presidente del Consiglio dei Ministri is examined in this context. It highlights the role of the national judge and the weight of facts in ensuring equality in the implementation of arrest warrants.The case involves a third-country national, O.G., who was subject to an arrest warrant issued by Italian authorities. O.G. argued that he was not treated equally compared to EU citizens in similar situations. The national judge had to consider the weight of facts presented by O.G. and determine whether there was a violation of equality principles.It also emphasizes the importance of the national judge in safeguarding the rights of third-country nationals and ensuring equal treatment. It discusses the legal framework and principles that should guide the judge's decision-making process. The case serves as an example of the challenges and complexities involved in balancing the rights of EU citizens and third-country nationals in the context of European arrest warrants.Overall, the text highlights the need for a fair and equitable approach in implementing European arrest warrants, regardless of the nationality of the individuals involved.

Abstract: The annotation analyses the recent CJEU preliminary ruling in the GN case, the latest chapter of the EAW effectiveness vs fundamental rights protection saga. The Court confirms that, in principle, considerations related to the best interests of the child can justify denial of execution of an EAW. However, this limitation can be triggered solely through the demanding Aranyosi and Căldăraru test. By taking this stance, the Court refuses to add a new category of exceptions to mutual recognition. In addition, based on its ever-refined case law, the Court fine-grains the obligations incumbent upon the national judicial authorities with respect to the conduct of direct exchanges of information and seems to advocate for a new obligation for the issuing judicial authority to refrain from using the EAW system when the circumstances of a case make refusal of surrender a highly likely option.

Abstract: This article provides a nuanced exploration of the implications of EU criminal justice cooperation, particularly within French probation and judicial services. Focusing on EU Framework Decisions 2008/947/JAI and 2009/829/JAI, the article delves into their impact and adaptation in France, offering insights into challenges, adaptations, and practical considerations from the French standpoint. The article contextualises the implications of EU Framework Decisions by integrating valuable insights from the French probation and judicial services. Statistical data and case analyses illustrate practical challenges and applications within the French criminal justice landscape. The article highlights specific challenges faced within the French criminal justice system, such as prison overcrowding and the treatment of foreign nationals. It emphasises enhanced communication, trust, and collaboration among stakeholders within the European criminal justice system. Addressing the adaptation of EU Framework Decisions in France, the article navigates the complexities involved in aligning European law with national legislation and the delicate balance required to maintain sovereignty while embracing cooperative legal frameworks (...).

Abstract: Climate protection through criminal law is the subject of growing international discussion. The Commission’s 2021 proposal on environmental criminal law and the Council of Europe’s 2023 draft Convention on environmental criminal law contain provisions on climate protection. In addition, new EU Regulations and Directives related to climate protection have been proposed and adopted in recent years. Although the role of environmental criminal law has been limited in the past, the role of environmental criminal law in European criminal law has been receiving increased attention in recent years in response to climate change and the discussion on the introduction of the crime of ecocide into the Rome Statute. This article identifies how the Commission’s proposal and the draft Convention will contribute to climate protection. It then identifies issues with these provisions and areas for future improvement for climate protection.

Further sources

 

If you are unable to access the article you need, please contact us and we will get it for you as soon as possible.

Data Protection Notice   Cookie Policy & Inventory
Library Catalogue
Journals on all devices
Books, articles, EPRS publications & more
Newspapers on all devices