The European arrest warrant and the sovereign state: A marriage of convenience?

European Law Journal

Volumn 15, Issue 1, 2009, Pages 70-97

  Fichera, Massimo ^a  

^a UNIVERSITY OF EDINBURGH   (United Kingdom)

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EID: 70449584777     PISSN: 13515993     EISSN: 14680386     Source Type: Journal    
DOI: 10.1111/j.1468-0386.2008.00451.x     Document Type: Article

References (154)

1. Council Framework Decision of 13 June 2002 on the European Arrest Warrant and the surrender procedure between Member States 2002/584/JHA (the Framework Decision).
2. ibid, Art 2 (1).
3. G. De Kerchove and A. Weyembergh (eds), La Reconnaissance Mutuelle des Décisions Judiciaires Pénales dans l'Union Européenne (Editions ULB, 2001
4. Tampere European Council, Presidency Conclusions (15 and 16 October 1999), available at http://www.europarl.eu.int/summits/tam_en.htm.
5. Programme of measures to implement the principle of mutual recognition of decisions in criminal matters, adopted by the JHA Council of Ministers on 30 November 2000, [2001] OJ C12/10.
6. On this, see also European Union Strategy for the Beginning of the New Millennium [2000] OJ C124/1, whose recommendation no 28 specified that consideration should be given to the long-term (rather than short-term) possibility of the creation of a single European legal area for extradition.
7. The very idea of mutual recognition came from a British proposal (which opposed complete harmonisation). See Cardiff European Council, Presidency Conclusions (SN 150/1/98 REV 1, 15 and 16 June 1998) and also H. Nilsson, 'Mutual Trust and Mutual Recognition of Our Differences, a Personal View', in De Kerchove and Weyembergh, op cit n 3 supra.
8. J. Wouters and F. Naerts, 'Of Arrest Warrants, Terrorist Offences and Extradition Deals: An Appraisal of the EU's Main Criminal Law Measures Against Terrorism After 11 September', [2004] Common Market Law Review 909; M. Jimeno-Bulnes, 'After September 11th: The Fight Against Terrorism in National and European Law Substantive and Procedural Rules: Some Examples', (2004) 10 European law Journal 235.
9. In particular terrorism (the corresponding Framework Decision was adopted on the same day as the EAW: see Council Framework Decision of 13 June 2002 on combating terrorism 2002/475/JHA), but also drug trafficking, money laundering, counterfeiting of Euros, trafficking in human beings, fraud against the European Communities, organised crime.
10. Examples include murder, extortion and racketeering and swindling.
11. On all this, see, inter alia, Council Document 6522/00 of 2 March 2000; Doc. 5126/01 of 2 February 2001; [2001] OJ C75/; Doc. 6552/02 of 22 February 2002, on file with the author.
12. On the birth of the EAW and, more generally, mutual recognition instruments, see also N.Keijzer, 'The European Arrest Warrant Framework Decision between Past and Future', in E. Guild (ed.), Constitutional Challenges to the European Arrest Warrant (Wolf Legal Publishers, 2006); V. Mitsilegas, 'The Constitutional Implications of Mutual Recognition in Criminal Matters in the EU', [2006] Common Market Law Review 1277; S. Peers, 'Mutual Recognition and Criminal Law in the European Union: Has the Council Got it Wrong?', in [2004] Common Market Law Review 5;
13. S. Alegre and M. Leaf, 'Mutual Recognition in European Judicial Cooperation: A Step Too Far Too Soon? Case Study - The European Arrest Warrant', (2004) 10 European Law Journal 200
14. W. Gilmore, The EU Framework Decision on the European Arrest Warrant', (2002) 3 ERA-FORUM 144. The concept of mutual recognition was first developed within the First Pillar, in the internal market area, starting from Case 120/78 (Cassis de Dijon) [1980] OJ C256/2, as well in the area of cooperation in civil and commercial matters, starting from the Convention of 27 September 1968 on jurisdiction and the enforcement of judgments in civil and commercial matters (Brussels Convention), aavailable at: http://curia.europa.eu/common/recdoc/convention/en/c-textes/brux-idx.htm .
15. D. Boytha, 'La libre circulation des jugements dans l'espace judiciaire européen en matière civile et commerciale', [2006] Revue de Droit de l'Union Européenne 629.
16. Convention Implementing the 1985 Schengen Agreement. The list includes the following offences: murder, manslaughter, rape, arson, forgery of money, aggravated burglary and robbery and receiving stolen goods, extortion, kidnapping and hostage taking, trafficking in human beings, illicit trafficking in narcotic drugs and psychotropic substances, breach of the laws on arms and explosives, wilful damage through the use of explosives, illicit transportation of toxic and hazardous waste.
17. Convention based on Article K3 of the Treaty on European Union, on the Establishment of a European Police Office, [1995] OJ C316/2; Proposal for a Council Decision establishing the European Police Office, Brussels, COM (2006) 817 final.
18. Note from UK Delegation to K4 Committee (7090/99, 29 March 1999). Indeed, the UK has experience of a similar mechanism: the 'backing of warrants'. See J. R. Spencer, 'The European Arrest Warrant', in (2003) 6
19. The Cambridge Yearbook of European Legal Studies 201
20. P. Jackson, 'Backing of Warrants (Republic of Ireland) Act 1965', (1996) 29(2) The Modern Law Review 186. Bilateral agreements for fast-track surrender procedures were struck between Spain and Italy in 2000 (Council of the European Union, 14643/00, COPEN 85) and Spain and the United Kingdom in 2002 (Boletín Oficial de las Cortes Generales, Serie A, N. 313, 7 June 2002). A similar agreement was in the process of being struck between Spain and France in the same period. See España pide a Francia un acuerdo para la entrega de terroristas sin extradición (El País, 1 February 2001).
21. Point 33 of the Tampere Presidency Conclusions, n 4 supra.
22. However, the ECJ held in Joined Cases C-187/01 and C-385/01, Gozutok and Brugge, that the ne bis in idem principle according to Art 54 of the 1990 Schengen Convention implied that the Member States 'have mutual trust in their criminal justice systems and that each of them recognises the criminal law in force in the other Member States even when the outcome would be different if its own national law were applied' (para 33). See M. Fletcher, 'Some Developments to the ne bis in idem Principle in the European Union: Criminal Proceedings against Huseyn Gözutök and Klaus Brügge', [2003]
23. Modern Law Review 769.
24. T. Vander Beken, 'Freedom, Security and Justice in the European Union. A Plea for Alternative Views on Harmonisation', in A. Klip and H. van der Wilt (eds), Harmonisation and Harmonising Measures in Criminal Law (Royal Netherlands Academy of Arts and Sciences, 2002) at 95 et seq.
25. A. Klip, 'European Integration and Harmonisation and Criminal Law', in D. M. Curtin et al (eds), European Integration and Law (Intersentia METRO, 2006), 134; J. R. Spencer, 'Why is the Harmonisation of Penal Law Necessary?', in Klip and van der Wilt, op cit n 18 supra, at 43 et seq. Against mutual recognition is B. Schünemann, 'Alternative Project for a European Criminal Law and Procedure', [2007] Criminal Law Forum 227, who suggests, as an alternative, the application of the most favoured treatment principle and of the Swiss model.
26. On this, see, inter alia, I. Bantekas, 'The Principle of Mutual Recognition in EU Criminal Law', [2007] European Law Review 365.
27. A. Weyembergh, 'Approximation of Criminal Laws, the Constitutional Treaty and the Hague Programme', [2005] Common Market Law Review 1567.
28. F. M. Tadić, 'How Harmonious can Harmonisation be? A Theoretical Approach towards Harmonisation of (Criminal) Law', in Klip and van der Wilt, op cit n 18 supra, at 1 et seq.
29. Convention on jurisdiction and the enforcement of judgments in civil and commercial matters, [1998] OJ C27/1.
30. Communication from the Commission to the Council and the European Parliament, Mutual Recognition of Final Decisions in Criminal Matters, Brussels, COM (2000) 495 final.
31. European Convention on the International Validity of Criminal Judgments, The Hague, 28 May 1970, ETS, n 70; Convention between the Member States of the European Communities on the Enforcement of Foreign Criminal Sentences, Brussels, 13 November 1991, available at http://ue.eu.int/ueDocs/cms_Data/docs/polju/EN/EJN319.pdf.
32. Title VI of the Treaty on European Union (TEU), Provisions on Police and Judicial Cooperation in Criminal Matters (Arts 29-42).
33. s it is well known, most of the legislative power is attributed to the Council of the European Union, while the European Parliament only has a limited consultative role: there is therefore nothing comparable to the co-decision procedure in the First Pillar. The Commission shares its right of initiative with the Member States. The European Court of Justice, whose powers have been increased by the Maastricht Treaty, cannot verify the validity and proportionality of police operations and its power to take preliminary decisions depends on the consent of Member States (moreover, there is no infringement procedure). As a result, an executive organ (the Council) has the power to deal with criminal matters through acts (the Framework Decisions) that do not need to be approved by the citizens of a state or ratified by a national parliament. These acts are also deprived of direct effect, although they have indirect effect (see ECJ, Case C-105/03, Pupino [2005] ECR I-5285). Finally, the unanimity rule makes the whole decision-making process lengthy and inefficient.
34. Article 31(e) encourages the Member States to adopt progressively measures establishing minimum rules relating to the constituent elements of criminal acts and to penalties in the field of organised crime, terrorism and illicit drug trafficking. The legal instrument designed for the approximation of the laws and regulations of the Member States is the Framework Decision as established by Art 34(2)(b).
35. Tadić, op cit n 22 supra.
36. ECJ, Case 6/64, Costa v ENEL [1964] ECR 585.
37. Treaty amending the TEU and the TEC, [2007] OJ C306/10. The Treaty was signed on 13 December 2007 after the failed approval of the European Constitution (see Treaty establishing a Constitution for Europe, CIG 87/2/04 Rev 2, Brussels 29 October 2004). It needs to be ratified by all 27 Member States before entering into force.
38. See, for instance, Council Framework Decision of 13 June 2002 on combating terrorism 2002/475/JHA or the new Proposal for a Council Framework Decision on the fight against organised crime, COM (2005) 6 final, which should be formally adopted soon. It is worth noting that approximation will be pursued by way of a new procedure involving the European Parliament and the Council (i.e. the co-decision procedure, renamed 'ordinary legislative procedure') as well as new acts (i.e. directives, rather than framework decisions). However, only the Council may by unanimity extend the list, although the consent of the Parliament is required. Furthermore, the possibility of approximating criminal laws and regulations in other areas is ensured (para 2 of the same Article).
39. These rules will relate to: mutual admissibility of evidence between Member States; the rights of individuals in criminal procedure; the rights of victims of crime; any other aspect of criminal procedure (in which case, the Council may act by unanimity vote after the consent of the Parliament).
40. In both types of approximation a 'safeguard clause' ('emergency break') allows any Member State that believes that fundamental aspects of its criminal justice system are affected to request that the draft directive be referred to the European Council. In this case the procedure is suspended until the decision of the European Council and starts again if within four months a consensus is reached. Where consensus is not reached, a mechanism of 'enhanced cooperation' is supposed to avoid potential stalemates: such mechanism can only be triggered by at least nine countries (currently a third), which wish to adopt the directive notwithstanding the opposition of one or more other states.
41. Some authors believe that the 'surrender' as a form of international cooperation in criminal matters differs from 'extradition' mainly because it operates between a state and an international criminal tribunal, rather than between states.
42. M. Plachta., 'European Arrest Warrant: Revolution in Extradition?', (2003) 11(2) European Journal of Crime, Criminal Law and Criminal Justice 178. However, see forms of surrender between states, n 15 supra. Other regional or sub-regional arrangements have been concluded since the 1950s: some of them are characterised by the relaxation of one or more of the main principles of classic extradition law
43. See the Nordic extradition Agreement, available at http://www.sweden.gov.se/sb/d/2710/a/15435;jsessionid=aJiWcTLGMrY; and also the Australia-New Zealand backing of warrants, in A New Extradition System. A Review of Australia's Extradition Law and Practice (Federal Attorney-General's Department, Commonwealth of Australia, 2005); Plachta also believes that 'surrender' in the Framework Decision is nothing but extradition with a different name. Contra
44. Z. Deen-Racsmany, 'The European Arrest Warrant and the Surrender of Nationals Revisited: The Lessons of Constitutional Challenges', (2006) 14(3) European Journal of Crime, Criminal Law and Criminal Justice 271
45. O. Lagodny, 'Extradition without a Granting Procedure: The Concept of Surrender', in R. Blextoon and W. van Ballegooij (eds), Handbook on the European Arrest Warrant (TMC Asser Press, 2005, 39-45.
46. M. Mackarel and S. Nash, 'Extradition and the European Union', (1997) 46 International and Comparative Law Quarterly 948.
47. See in this regard the Preamble to the 1996 Convention relating to Extradition between the Member States of the EU, [1996] OJ C313/12: 'The High Contracting Parties . . . EXPRESSING their confidence in the structure and operation of their judicial systems and in the ability of all Member States to ensure a fair trial . . . '.
48. Article 7 of the Italian implementing law does not consider these circumstances. See F. Impala, 'Le mandat d'arrêt européen et la loi italienne d'implementation', Fondazione Giovanni e Francesca Falcone (2005), available at http://www.eurowarrant.net.
49. E. Guild, 'Drawing the Conclusions: Constitutional Concerns regarding the European Arrest Warrant', in Guild, op cit n 12 supra, at 267-272
50. A residual possibility for the Member State to avail itself of such requirement is left in Arts 5(3), 4(6) and 25(1). The first provision refers to nationality as a guarantee: where a request for surrender has been made for the purposes of prosecution in the requesting state, the requested state may make execution conditional on the assurance that, upon conviction, the individual is returned to the state of nationality or of residence to serve the sentence there. The second provision qualifies nationality as a ground for optional non-execution. It enables the Member State to refuse execution where a EAW has been issued for the purposes of execution of a custodial sentence or detention order in respect of a national, a resident or a person 'staying in' the requested state and this state undertakes to execute the sentence or detention order in accordance with its domestic law. Finally, Art 25(1) uses nationality for a 'conditional transit': where a EAW has been issued for the purposes of prosecution and the person who is sought is a national or resident of the state of transit, this state may subject transit to the condition that the person, after being heard, is returned there in order to serve the custodial sentence or detention order.
51. N. Keijzer, 'The Double Criminality Requirement', in Blextoon and van Ballegooij, op cit n 35 supra, at 137-163
52. Interestingly, no such list was provided in the initial proposal. Under Art 27, states were allowed to draw up a list of forms of conduct for which execution could be refused because it would be contrary to the fundamental principles of their legal system ('negative list'). See Proposal for a Council Framework Decision on the European arrest warrant and the surrender procedures between the Member States, Brussels, 19 September 2001, COM (2001) 522 final (although a slightly revised version is dated 25 September 2001).
53. ECJ, Case C-303/05, Advocaten voor de Wereld v Leden van de Ministerraad, 3 May 2007.
54. The effects of double criminality are limited by the possibility of refusing to execute an EAW for offences: a) which are regarded by the executing state as having been committed in whole or in part in its territory; b) which have been committed outside the territory of the issuing Member State but the law of the executing Member State does not allow prosecution for the same offences when committed outside its territory. See Article 4(7)(a) and (b).
55. Loi du 19 December 2003, published on Moniteur Belge (22 December 2003).
56. For instance, surrender may be requested by one Member State for offences which are regarded as minor in another Member State. Other examples include Spanish legal definitions: 'corruption' is interpreted as 'corruption of minors'; 'advocacy or justification' of terrorism and 'extolling' a terrorist cause are only found in the Spanish criminal code; 'laundering of the proceeds of the crime' and 'computer-related crime' are absent. On all this, see M. Jimeno-Bulnes, 'Spain and the European Arrest Warrant - The View of a "Key User"', in Guild, op cit n 12 supra, at 176-177
57. Annex to the Report from the Commission on the implementation of the European arrest warrant and the surrender procedures between Member States in 2005, 2006 and 2007, Brussels, 11 July 2007, COM 2007
58. See infra n 61.
59. For all this, see Annex to the Report from the Commission, n 47 supra.
60. European Council, Presidency Conclusions (Brussels, 4-5 November 2004), Annex I, 'The Hague Programme, Strengthening Freedom, Security and Justice in the European Union', para 3.2; Communication from the Commission to the Council and the European Parliament, The Hague Programme: Ten priorities for the next five years, COM (2005) 184 final, para 2.3; Communication from the Commission to the Council and the European Parliament, Implementing the Hague Programme: The Way Forward, COM (2006) 331 final, para 2.5.
61. For this, see also M. Fichera, The European Arrest Warrant: Towards Mutual Trust or Distrust in the European Union?, paper presented at the CEPS CHALLENGE Seminar, Police and Judicial Cooperation in Criminal Matters in the EU: Which Future for EU's Third Pillar? (Brussels, 13-14 April 2007).
62. This amendment will be possible pursuant to Art 2(3) of the Framework Decision, which confers such power on the Council. After all, this would be more in line with the categories for which approximation is encouraged under Art 31(e) TEU. Furthermore, Art 69B as inserted by the Lisbon Treaty (see supra n 31) clarifies that directives adopted according to the ordinary procedure may establish minimum rules on the definition of criminal offences and sanctions in areas of serious crime having a cross-border dimension, such as terrorism, organised crime, money laundering and drug trafficking.
63. ECHR, Soering v UK Series A, No 161 (1989).
64. See Art 6(2) TEU.
65. Annex to the Report from the Commission, n 47 supra. Also, in some Member States the political offence exception has not been eliminated. See infra n 95.
66. Judgement of the Polish Constitutional Tribunal, P 01/05, 27 April 2005. The provision is Art 55(1) of the Polish Constitution. See K. Beni, The European Arrest Warrant and the Polish Constitutional Court Decision of 27 April 2005, in Guild, op cit n 12 supra, at 125-139; K. Kowalik-Bańczyk, 'Should We Polish it Up? The Polish Constitutional Tribunal and the Idea of Supremacy of EU Law', (2005) 6(10) German Law Journal 1355
67. The distinction between the two concepts was one of the arguments used before the judgment by those who believed that an amendment of the constitution was not necessary. See Kowalik-Bańczyk, op cit n 56 supra, at 1359.
68. The constitutional amendment occurred on 7 November 2006 and entered into force on 26 December 2006. See Report from the Commission on the implementation of the European arrest warrant and the surrender procedures between Member States in 2005, 2006 and 2007, Brussels, 11 July 2007, COM 2007
69. BVerfG, 18 July 2005 2 BvR 2236/04. See F. Geyer, 'The European Arrest Warrant in Germany - Constitutional Mistrust towards the Concept of Mutual Trust', in Guild, op cit n 12 supra, at 101-123; S. Mölders, 'European Arrest Warrant is Void - The Decision of the German Federal Constitutional Court of 18 July 2005', (2005) 7 (1) German Law Journal 45
70. 'soweit rechsstaatliche Grundsätze gewahrt sind': Art 16(2), sentence 2 of the German Constitution. This Article was modified in order to comply with the Statute of the International Criminal Court, which provides for a mechanism of 'surrender'.
71. Bundesgesetzblatt Jahrgang 2006 Teil I n. 36, 25 Juli 2006. According to this law, German citizens can only be extradited if the criminal act shows a genuine link ('maβgeblicher Bezug') to the territory of the requesting Member State. Where a national link to the German territory exists, a mandatory ground for refusal is provided for; where a foreign link exists, surrender is mandatory. In 'mixed cases' the law requires to check double criminality and to weigh up effectiveness of the prosecution, the alleged offence and the guarantee of fundamental rights. In any case, return after sentence must be guaranteed.
72. Austria too adopts the first term and reserved until 31 December 2008 the right to refuse execution of an EAW if the requested person is an Austrian citizen and if the act for which the EAW has been issued is not punishable under Austrian law. After that date, the relevant provisions will be amended (Art 33 of the Framework Decision).
73. Judgment of the Supreme Court of Cyprus no 295/2005, Council Document no 14281/05, 11 November 2005. Article 11 of the Cypriot Constitution, available at http://www.kypros.org/Constitution/English/appendix_d_part_ii.html.
74. Article 11 of the Cypriot Constitution, available at http://www.kypros.org/Constitution/English/appendix_d_part_ii.html. On the judgment, see Stefanou and Kapardis, op cit n 63 supra.
75. Cypriot Law 18 June 2006 amending Art 11 of the Constitution. See Report from the Commission, n 58 supra.
76. E. Guild, 'Introduction', in Guild, op cit n 12 supra.
77. Decision no 591/2005 of Areios Pagos, Council Document no 11858/05, 9 September 2005; Decision of the Czech Constitutional Court, 3 May 2006, No.Pl.ÚS 66/04, available at http://www.law.uj.edu.pl/~kpk/eaw.
78. Decision of the Czech Constitutional Court, ibid, para 48. Here too, the problem of the distinction between extradition and surrender is analysed. See the judgment of the German Constitutional Court supra, text accompanying nn 59-61
79. Moreover, the Czech court did not restrict the scope of its judgment only to citizens of its country, as '. . . the Czech constitution does not protect only the trust of Czech citizens in the Czech law, but also protects the trust and the legal certainty of other persons that are lawfully residing in the Czech Republic (eg foreign nationals who are permanently resident in the Czech Republic)': Decision of the Czech Constitutional Court, ibid, para 113.
80. Indeed, although Art 4(7) of the Framework Decision was not incorporated by the Czech implementing statute, Section 377 of the Code of Criminal Procedure can be interpreted in the light of that provision: as a result, a Czech citizen will not be surrendered to another Member State if he or she is suspected of a crime committed in his or her own country, unless, in view of the special circumstances in which the crime was committed, it is necessary to give priority to conducting the criminal prosecution in the requesting state.
81. Case C-303/05, n 43 supra.
82. According to Art 35 TEU: '1. The Court of Justice of the European Communities shall have jurisdiction, subject to the conditions laid down in this article, to give preliminary rulings on the validity and interpretation of framework decision and decisions, on the interpretation of conventions established under this title and on the validity and interpretation of the measures implementing them. 2. By a declaration made at the time of signature of the Treaty of Amsterdam or at any time thereafter, any Member State shall be able to accept the jurisdiction of the Court of Justice to give preliminary rulings as specified in paragraph 1'. Belgium made the declaration under para 2, so that all its courts have the power to submit questions to the ECJ.
83. G. Vermeulen, 'Where do we Currently Stand with Harmonisation in Europe?', in Klip and van der Wilt, op cit n 18 supra, at 68-70
84. Belgian Cour d'arbitrage, arrêt no 124/2005, 13 July 2005. The questions asked by Advocaten voor de Wereld were five, but two of them were not addressed by the Cour d'Arbitrage and another two were merged into one.
85. Opinion of Advocate General Ruiz-Jarabo Colomer, 12 September 2006, ECJ, Case C-303/05 Advocaten voor de Wereld v Leden van de Ministerraad.
86. Case C-303/05, n 43 supra, paras 28-43
87. ibid, paras 48-61.
88. ibid, para 57.
89. See supra on double criminality. It is all the more significant that, in the course of the negotiations on the Framework Decision on the European Evidence Warrant, Germany insisted on an opt-out for a list of six types of offences, which roughly corresponds to the one mentioned above: racism and xenophobia, computer-related crime, sabotage, racketeering and extortion, swindling and terrorism. See Proposal for a Council Framework Decision on the European Evidence Warrant, Brussels, 14 November 2003, COM (2003) 688 final. A political agreement was reached at the JHA Council on 1-2 June 2006. The proposal is expected to be formally adopted soon.
90. Case C-303/05, n 43 supra, para 52.
91. ibid, para 59.
92. ibid, para 38. Advocate General Ruiz-Jarabo Colomer in his Opinion argues that 'legislative harmonisation is essential' (n 75 supra, para 49).
93. Opinion of Advocate General Ruiz-Jarabo Colomer, n 75 supra, para 45.
94. ibid, para 49. The Advocate General concluded that it is not national extradition laws, but the concepts of arrest and surrender which have been harmonised (para 50). The Court of Justice instead excludes any reference to harmonisation.
95. See, for instance, regarding France, Avis du Conseil d'Etat no 368-282 (26 September 2002).
96. Audiencia Nacional, agreeement of 20 September 2005; Decision of the Greek Supreme Court 2483/2005; for the Polish decision, see Beni, op cit n 56 supra, at 133.
97. Annex to the Report from the Commission, n 47 supra.
98. One may wonder whether the principle pacta sunt servanda might be applied in this context, in the sense of not allowing grounds for refusal which are only provided for in domestic law. This relates to the nature of a Framework Decision.
99. COM (2004) 328, adopted 28 April 2004, Brussels. See UK House of Lords EU Select Committee Report (16 January 2007), available at http://www.parliament.uk/parliamentary_committees/lords_eu_select_commit tee.cfm.
100. Negotiations seem blocked. Among other aspects, the Commission's proposal contained detailed provisions on notification of rights, including the requirement for a Letter of Rights which was to be issued to all suspects in the EU. This has been replaced in a new draft prepared by the Austrian Presidency by a general right to 'effective information'. See, inter alia, Council JHA Meeting 1-2 June 2006 and 10287/07 DROIPEN 56. A draft proposed by the German presidency failed to be approved. See Brussels European Council (21-22 June 2007), available at http://www.consilium.europa.eu.
101. There are no clear rules yet. The 'first come first served' principle applies. See Green Paper on Conflicts of Jurisdiction and the Principle of ne bis in idem in Criminal Proceedings, COM (2005) 696 final.
102. Annex to the Report from the Commission, n 47 supra.
103. ibid. See, however, for the UK, infra, section D, National case-law, part 1.
104. A form of political offence has been reintroduced also in Portugal and Denmark.
105. Article 18 of the Italian law 22 April 2005, n 69. (See also United Nations Convention for the Suppression of Terrorist Bombings, (1998) 37 ILM 249.) Other grounds include: where the facts relate to the exercise of a right or a duty or if the offence was committed under 'caso fortuito' or 'forza maggiore'; where the victim has given his/her consent to the act; where the requested person is pregnant or is the mother of a child less than 3 years old, except in circumstances of exceptional gravity; where the law of the requesting Member State does not provide for limits to pre-trial detention. These grounds are all mandatory.
106. Article 8 of the Italian law, ibid.
107. According to Article 4(1), the execution of an EAW may be refused '. . . if, in one of the cases referred to in Article 2(4), the act on which the European arrest warrant is based does not constitute an offence under the law of the executing Member State; however, in relation to taxes or duties, customs and exchange, execution of the European arrest warrant shall not be refused on the ground that the law of the executing Member State does not impose the same kind of tax or duty or does not contain the same type of rules as regards taxes, duties and customs and exchange regulations as the law of the issuing Member State'.
108. Such additional documents include a copy of the applicable provisions; the initial decision on which the EAW is based; information on the sources of evidence, as well as personal data and any other useful document. See Art 6 of the Italian law, n 96 supra, which is more restrictive than the corresponding Art 8 of the Framework Decision. It is worth noting that, despite these limitations, in 2005 nine Italian citizens were surrendered following an EAW. See Council of the European Union, 19 January 2007, Document 9005/5/06 REV 5.
109. UK Extradition Act 2003. On the implementation in the UK, see M. Mackarel, 'The European Arrest Warrant - the Early Years: Implementing and Using the Warrant', in [2007] European Journal of Crime, Criminal Law and Criminal Justice37.
110. Office of the King's Prosecutor, Brussels v Cando Armas and Another [2005] UKHL 67, [2006] AC 1. Mr Cando Armas, an Ecuadorian citizen, was sought by the Belgian authorities after conviction in absentia to five years' imprisonment for human trafficking, facilitation of unauthorised entry and residence and forgery of administrative documents.
111. This conclusion was reached through an interpretation of 'conduct' as 'such of the conduct as constitutes a criminal offence (under the law of the category 1 territory)' (para 30).
112. Cando Armas, n 101 supra, para 17 per Lord Bingham of Cornhill and para 35 per Lord Hope of Craighead.
113. ibid, paras 41-48 per Lord Hope of Craighead, who also refers to R (Bleta) v Secretary of State for the Home Department [2004] EWHC 2034 (Admin), [2005] 1 WLR 3194 (ie an extradition case). However, see contrary opinion of Lord Scott of Foscote, para 56.
114. Dabas v High Court of Justice, Madrid [2007] UKHL 6, [2007] 2 AC 31.
115. ibid, para 8 per Lord Bingham of Cornhill and para 44 per Lord Hope of Craighead. This is the first decision in the UK in which the Pupino guidelines are taken into account. Lord Scott of Foscote (para 68) believes instead that this requirement compensates for the lack of precision of the framework offences and the removal of double criminality.
116. ibid, paras 54-55 per Lord Hope of Craighead.
117. Re Hilali [2007] EWHC 939 (Admin), [2007] 3 All ER 422, para 38.
118. Indeed, the request for his surrender had included a long description of the circumstances of the offence, including a number of intercepted telephone conversations between him and a central suspect. However, the latter was acquitted of some crimes, and the Spanish Supreme Court quashed the remaining convictions, as the telephone intercept evidence was not relevant and had been in any case unlawfully obtained.
119. Re Hilali [2008] UKHL 3, [2008] 2 All ER 207, in particular opinion of Lord Hope of Craighead, paras 13-15, recalling Lord Scott of Foscote in Cando Armas, n 101 supra, paras 50-51. Interestingly, in that case participation in a terrorist organisation was not considered an extraditable offence, as not included in the Framework Decision list and therefore subject to the dual criminality test.
120. R v Bow Street Stipendiary Magistrate ex parte Pinochet Ugarte (No 3) [1999] 2 WLR 827. See C. Warbrick, 'Extradition Law Aspects of Pinochet 3', (1999) 48 International and Comparative Law Quarterly 958.
121. Dabas, n 105 supra, paras 46-48 per Lord Hope of Craighead.
122. Parasiliti-Mollica v Deputy Public Prosecutor of Messina Italy [2005] EWHC 3262 (Admin).
123. ibid, para 15.
124. On the implementation in Spain, see M. Jimeno-Bulnes, 'The Enforcement of the European Arrest Warrant: A Comparison Between Spain and the UK', [2007] European Journal of Crime, Criminal Law and Criminal Justice 263M. Jimeno-Bulnes, 'Spain and the European Arrest Warrant - The View of a "Key User"', in Guild, op cit n 12 supra, at 163-185
125. Sentencia Tribunal Constitucional (STC) no 177/2006 (Sala Segunda), 5 June 2006, Recurso de Amparo no 5933/2005.
126. ibid, paras 3-5. This approach follows STC no 83/2006 (Sala Primera), 13 March 2006, Recurso de Amparo no 6862/2004, paras 3-4, in which the court in a similar case (concerning a crime of drug trafficking committed in France) argued that this principle is not absolute, as a different conclusion may be reached in exceptional circumstances, comparing the rationes decidendi of the decisions under the two regimes. Similarly, and again concerning a crime of drug trafficking committed in France, see STC no 293/2006 (Sala Primera), 10 October 2006, Recurso de Amparo no 3988/2005, paras 3-4.
127. STC no 177/2006, n 116 supra, paras 7-8. See Spanish implementing law 3/2003, RCL 2003, 731.
128. STC no 292/2005 (Pleno), 10 November 2005, Recurso de Amparo no 1827/2005, para 5. In this case the EAW concerned the crime of drug trafficking.
129. On the case-law in Belgium, see the website available at http://www.cass.be.
130. Cour de Cassation, 24 August 2004, n. P.04.1211.N.
131. Vienna Convention on the Law of Treaties, 1969, UTS vol 1155, at 331.
132. Cour de Cassation, 8 December 2004, n. P.04.1562.F.
133. Cour de Cassation, 13 April 2004, n. P.04.0513.N.
134. Article 44, Loi 19 December 2003, published on 22 December 2003, Moniteur Belge, 2nd edn.
135. Cour de Cassation, 1 February 2006, n. P.06.0109.F.
136. Cour de Cassation, 8 June 2004, n. P.04.0842.N.
137. Cour de Cassation, 11 January 2006, n. P.05.1544.F.
138. Cour de Cassation, 18 October 2006, n. P.06.1316.F.
139. Cour de Cassation, 7 March 2007, n. P.07.0259.F.
140. Cour de Cassation, 11 May 2004, n. P.04.0660.N.
141. See, for instance, Cour de Cassation, n 130 supra.
142. Cour de Cassation, 21 September 2005, n. P.05.1270.F.
143. See, e.g., Cour de Cassation, 1 March 2006, n. P.06.0280.F.
144. For all this, see, e.g., Cour de Cassation, 8 December 2004, n. P.04.1540.F; 8 December 2004, n. P.04.1562.F; 1 March 2006, n. P.06.0280.F.
145. Cour de Cassation, 26 May 2004, n. P.04.0779.F.
146. Cassazione, sez. VI penale, sentenza no 16542, 8 May 2006 (Cusini), para 9. As a result, an Italian citizen charged with fraud in Belgium was released.
147. See, e.g., European Court of Human Rights, Application No 14379/88, W v Switzerland, 26 January 1993.
148. Case C-105/03, n 27 supra.
149. Cassazione, Sezioni Unite, sentenza no 4614, 5 February 2007 (Ramoci), paras 7-10.
150. Cassazione, sez. VI penale (Cusini), n 137 supra, para 6; Cassazione, Sezioni Unite (Ramoci), n 140 supra, para 2.
151. Cassazione, sez. VI penale, sentenza no 34355, 23 September 2005 (Ilie Petre), para 11; Cassazione, sez.feriale penale, sentenza no 33642, 13-14 September 2005 (Hussain).
152. Cassazione, sez. feriale penale (Hussain), n 142 supra. Hussain was arrested in Italy one week after the attempted bombings, lost his appeal on 15 September 2005 and returned to the UK on 22 September. See also comment in 'Bomb Suspect Arrested on British Soil', The Independent, 22 September 2005, as well as UK House of Lords EU Committee Report No 30, European Arrest Warrant - Recent Developments (HL (2005-06) 156), Explanatory Memorandum submitted by the Home Office on 20 February 2006, at 9-10, which also mentions both terrorist cases in which the procedure was slow and the issuing of a UK EAW against a Portuguese national accused of murder, in which instead the surrender was very swift (seven days after arrest).
153. Annex to the Report from the Commission, n 47 supra.