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Abstract by the author: This article focuses on European Arrest Warrants (EAWs) and solutions for effective assistance in judicial cases and evidence-sharing between the EU27 and the UK. The article sets out the context of how the theme of EU Member States’ mutual legal assistance specifically gave rise to the development of EAWs, which permit EU members to request the arrest and detention of suspects in other EU countries, without extradition negotiations between them. This article critically evaluates the potential post-Brexit future and advances alternative suggestions for the way ahead.
Abstract by the author: Surprising as it may seem, the European arrest warrant ( EAW) can be used by one State to take over a domestic prosecution from another State, even though the crime, the accused, the victim and all the primary evidence were located in the latter State and the competent authorities of that State have already decided that there is no basis for prosecution. Focusing on the remarkable facts of the Bailey case, this article critically examines how that bizarre situation is facilitated by the EAW Framework Decision and Ireland’s implementing legislation. It finds that the punitive criminal law enforcement demands of the EU’s area of freedom, security and justice are prioritised over the due process norms, human rights standards and internal checks and balances of domestic criminal process. The result is that the EAW can be used by prosecutors to expose the accused to a punitive, hybridised, criminal procedure lacking in normative coherence and democratic legitimacy. The article concludes that there is an urgent need to rethink the mutual responsibilities of Member States in the EAW regime.
Abstract by the author: The competence for issuing a European Arrest Warrant (EAW) is a hot topic at the moment. It has been the subject of four rulings of the Court of Justice of the European Union (CJEU) alone in 2019. These are preceded by three more rulings on the same subject from 2016. All of these judgments addressed the same core question: was the issuing authority a “judicial authority” and independent enough to issue an EAW pursuant to Art. 6 (1) of the Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States (FD-EAW)? If the answer to that question is “no”, the EAW issued by the incompetent authority is not valid. This article analyses the concept of “judicial authority” in the context of the FD-EAW and the legislative change currently discussed in Germany in the light of the requirements established by the CJEU.
Abstract by the author: The Court of Justice of the European Union (CJEU) has examined the limitation of the principle of mutual trust in European arrest warrant (EAW) cases in a number of recent decisions. The court has found that when the executing judicial authority possesses information demonstrating that the requested person is at a real risk of violation of the right to be free from inhuman or degrading treatment guaranteed in art 4 of the Charter of Fundamental Rights of the European Union, then the individual should not be automatically surrendered. Instead, the proceedings should be postponed to obtain supplementary information or discontinued if the risk cannot be discounted. The ‘real risk’ test has also been extended to non-absolute rights, such as the right to a fair trial. However, the CJEU’s reasoning about the limitation of mutual trust is not yet fully formed in relation to certain aspects concerning the nature of fundamental rights and the EAW procedure. This article explores these gaps of understanding about the scope of the limitation on mutual trust in surrender cases and, in doing so, assesses the consistency of similar developments in the area of transfers of asylum seekers under the Dublin Regulation III.
Abstract by the authors: On March 2018 the Spanish Supreme Court issued a European Arrest Warrant for the surrender of Puigdemont to be tried in Spain for grave offences against the constitutional order. In a preliminary decision the competent judicial authority in Germany found that the absence of double criminality should lead to the refusal of the EAW. This decision was confirmed by definitive decision of 12 July 2018. This paper questions the reasons for keeping a strict double criminality test in the European Area of Freedom Security and Justice (AFSJ), where the principle of mutual recognition should be “the cornerstone” of the judicial cooperation. It will be argued that a too strict application of the double criminality requirement in the realm of the EAW is contrary to the objectives set out in Article 67 and 82 of the TFUE, while it is not necessarily justified on grounds of protection of human rights.
Abstract by the author: This article contends that the presumption of mutual trust between the European Union Member States is a legal fiction. In the context of transfer of a custodial sentence from one country to another based on mutual recognition and mutual trust, a failure of the latter can have detrimental effects on judicial cooperation and, especially, on the functions of punishment. In particular, mutual recognition and mutual trust create a bridge between the external limits of punishment (fundamental rights) and the internal limits to the functions of punishment (retribution, deterrence and rehabilitation). The non-compliance with individuals’ fundamental rights undermines the very social functions of punishment. Such a failure can only be prevented if the Member States and the European Union endeavour to establish and maintain a truly integrated penal policy with concerns for individuals at its very core.
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