Actual problems with the European Arrest Warrant

Authors:Viktor Kárpáti

Tamás KummerPatrik Kiss

Trainee prosecutors of Hungary

Accompanying teacher: Tamás Jávorszki

Deputy Chief Prosecutor

IntroductionIn our study we show the basic problems with the European Arrest Warrant. In the first chapter of our paper we show the history of the extradition and EAW, the

double criminality, and the so called Tobin-case.

In the second part of our paper we write about the implementation of EAW framework

decision in national legal system, the scope of EAW, the grounds for non-executing the

EAW and the so called Bob-Dogi sentence.

In the third chapter of the study we show the nationality and speciality principles.

1. History of extradition

The state is an organization which controls the main power on its area. One of the base

elements of this main power is the punitive power. But when the offender leaves the

country the enforceability of this power is getting questioned. Nowadays when the

internationality is one of the specialities of the criminality, the criminal cooperation

should be in the focus for the jurists.

1.1. History of European Arrest Warrant

The very first institution of this international cooperation was the extradition. This

process means that the state hands over the suspect because of another country’s requests

to the purpose of prosecution or to enforce the punishment.

Till the Enlightenment the international criminal prosecution was only accidental and

pretty rare. The interstate agreements were built on bilateral and political arrangements.1

The political nature of these fundaments left their marks till the middle of the 18 th century

so these agreements can’t be seen as predecessors of international criminal cooperation as

today sense.

The extraditions theoretical foundation of modern law can be linked to Hugo Grotius who

declared in his opus “On the Law of War and Peace” in 1625 that in the several serious

crimes the expenditure of the principals is an obligation of the states.2 He thought this

responsibility so strong that it can be a foundation even for a war.

The first modern extradition statute was the Belgian one from 1833. This act furthermore

declared principles also for other countries to originate their own acts.

These extradition contracts itemized the included crimes: Usual these were only the 1 The earliest bilateral arrangement was concluded in B.C. 1280 between II. Ramses pharaoh and the Hittites2 István Szászy: The Extradition Law, Budapest, 1933, p. 21.

heaviest public crimes but in political crimes the extradition was impossible. The only

exception was the “attentat clause” which means that any assassination against the king

or his family member cannot be seen as a political crime so it did not make the

extradition impossible.3

The European economic and political integration has created several bilateral contracts.

This and the international-trending crime have increased the need of an independent

international statute.4 The base of the international criminal cooperation was the Paris

Convention which created the European Extraction Convention in 1957.

The much deeper political and economical European Community required the

transforming of the traditional institute of the extraction. The Judicial Cooperation

formally began with the Maastricht Contract in 1992 which also created the European

Union.

The Amsterdam Contract, which was signed on 2 October 1997, brought new conditions

because it declared the European Union as the region of the “Freedom, safety and law”.

In parallel the need of the equalization of the criminal procedure in between the EU

Member States has become stronger. This means that the Member States don not bring

any further conditions for the extradition and also that the regulations are being defined in

a common framework. The idea of the integrated law area is built on this principle and it

abolishes the extradition in between the states and it exchanges it with the transfer system

in between the judicial authorities.5

So one of the positive yields of the Amsterdam Contract was that the cooperation has

become deeper and also the Judicial Network has been constructed. The main goal for the

Judicial Network was to complete the requests faster and easier.

The road to the Integrated European Field of Law has been started at the Tampere

Summit in 1999. The Tampere Program included the idea of the mutual recognition of the

sentences: according to the document this makes the cooperation possible in between the

authorities and also the enforcement of the individual rights.

Enhanced mutual recognition of judicial decisions and judgements and the necessary

3 Wyngaert, Ch.: The political offence exception to extradition (The delicate problem of balancing the rights of the individual and the international public order). Kluwer, 1980. p. 15. 4 Szabolcs Hornyák: Hungarian extradition law during the dualism, Legal History Review 2004/4, p. 27. 5 Metropolitan Court of Criminal College Deputy Head, 2003.E1.II.A.5., p.21.

approximation of legislation would facilitate co-operation between authorities and the

judicial protection of individual rights. The European Council therefore endorses the

principle of mutual recognition which, in its view, should become the cornerstone of

judicial co-operation in both civil and criminal matters within the Union. The principle

should apply both to judgements and to other decisions of judicial authorities. 6

In addition the XVI. International Criminal Law Congress declared that the defendant

also has the right to an expedited procedure and this is derivable from the principle of the

reasonable procedure.

These considerations and the September 11 attacks in the United States lead the European

Committee to evolve recommendations to abolish formal extradition procedures for

sentenced persons and the Council of the European Union accepted the definitive

Decision on 13 June 2002. The method of the regulation was as an EU framework

Decision even though that the usual form of the criminal cooperation is the convention.

However, the difference was justifiable because the process of the ratification could be

much shorter and it leaves room for manoeuvre for the Member States providing they

could form the regulations in the most appropriate way.7

The European Arrest Warrant Framework Decision came into force on 1 January 2004 in

eight Member States, namely Belgium, Denmark, Finland, Ireland, Portugal, Spain,

Sweden, and the United Kingdom. By 1 November 2004, all Member States had

implemented the legislation except Italy, which did so on 22 April 2005. Bulgaria,

Romania and Croatia implemented the Decision on their accession in 2007 and 2013.

1.2. EAW and double criminality

The concept of the double criminality comes from the international extradition law. It

means that the request is accomplishable only if the crime is punishable not only in the

requesting state, but also in the executing state. On the other hand it means that states

may refuse to extradite fugitives if the requesting state would not have resulted in the

commission of a criminal offence in requested state.

The double criminality concept means that the crime has to be punished also in abstracto

and in concreto. The abstract interpretation means that the fact pattern in international 6 ? TAMPERE EUROPEAN COUNCIL 15 AND 16 OCTOBER 1999 PRESIDENCY CONCLUSIONS Section B, VI.33.http://www.europarl.europa.eu/summits/tam_en.htm7 ? Péter Polt: The nightfall of the extradition- a new legal institution: The European Arrest Warrant, European Law 2002/2, p. 4.

arrest warrant or in the national arrest has to fit in some fact pattern from the Penal Code

and it has to be offenses punishable by one-year imprisonment or more. Furthermore, the

concrete interpretation means that the person who committed the act has to be criminally

liable: in the case of the charged person could not have any demurrer or precluding

reason.

Based on all these the law enforcement authority has to find a crime, which has essential

similarity in the Penal Code. This is called the transformative interpretation. This action

is important especially at financial crimes because states have very different provisions at

financial relations.

The necessary consequence of the Framework Decision Article 1 (2) is that the Member

States has to abolish the principle of the double criminality.

The new regulation however left the double criminality to a certain point because in some

crime categories there is the opportunity for the executing state to make a discretionary

rather than a compulsory ground for a refusal to extradite for offences not falling within

those categories. The only requirement is the state has to meet that the criminal act has to

be punishable by 3 years imprisonment or more.

The categories within which are as follows: for example: participation in a criminal

organization, terrorism, trafficking in human beings, sexual exploitation of children and

child pornography, illicit trafficking in narcotic drugs and psychotropic substances.”8

It is important to note that the penalties or the executable imprisonments should be taken

into account only by the state, which sends the application. This means that the double

criminality is still used in the exceptional cases but not in the previous ones.

There are two pending questions with the double criminality in the EAW Framework

Decision. The first one is the problem with the secondary participation, or an attempt to

commit the crime.

Another issue is the accuracy of a description of an offence as being in the category and

whether the executing judicial authority is required to accept the issuing judicial

authority’s classification as definitive.

This problem came into focus in Hungary in the Tobin-case. The Irish Francis Ciaran

8 2002/584/JHA: Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States - Statements made by certain Member States on the adoption of the Framework Decision, Article 2.,

Tobin worked in Hungary at the Irish Life and Permanent financial company’s subsidiary.

On 9 April 2000 he chose wrong speed in Leányfalu, Hungary and ran over two children.

Both of them died. The Hungarian Court in 2002 found him guilty in lethal road accident

but before that in 2000, the court of first instance gave him his passport back in exchange

of guarantee. He went back to Ireland freely on the autumn 2000 for a wedding and to see

his family. On 30 October 2000, Tobin returned to Ireland permanently because he was

not asked to return his passport on his return 9 October 2000.

Meanwhile Hungary joined the European Union on 1 May 2004 and transferred the EAW

Framework Decision into the national law. According to this Hungary requested the

handover of Mr. Tobin by using a European Arrest Warrant.

The most important thing in this case was the EAW Framework Decisions first

preambulum-paragraph. This is the following: “(1) According to the Conclusions of the

Tampere European Council of 15 and 16 October 1999, and in particular point 35

thereof, the formal extradition procedure should be abolished among the Member States

in respect of persons who are fleeing from justice after having been finally sentenced and

extradition procedures should be speeded up in respect of persons suspected of having

committed an offence.”9

The first instance in Ireland – the High Court – refused the surrender. The basis of the

decision was that Mr. Tobin had not “fled” Hungary, as it was required by the Irish

legislation because he left the country with the consent of the authorities. The Court also

analyzed the phrase “flee” in other language versions and they found that the only

meaning of the word is the same as they found out. The Irish Supreme Court upheld the

decision. They also explained that the phrase “flee” could not be used to anyone who left

the country with the agreement of the authorities.

This case meant that the EAW Framework Decision did not reach its goal because of the

insufficient accuracy of a description.

Later on Ireland’s legislatives corrected the contested phrase so the requirement “flee” is

out of it and after one more trial, he started to serve his prison sentence in 13 January

2014.

9 2002/584/JHA: Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States - Statements made by certain Member States on the adoption of the Framework Decision, Preambulum 1 (1).

2. Implementation of the European Arrest Warrant in the national legal system

2.1 Grounds for European Arrest Warrant

One of the basic principles of the European Union is the free movement of persons,

goods, services and capital, which means that the borders of the Member States are

widely open, the people, and the above-mentioned things can cross the borders freely,

without any special controlls. Unfortunately, the perpetrators recognized this opportunity

too, which leads to the so called transnational crimes. Criminal acts and perpetrators do

not rescpect the state borders any more, crimes cross borders as well, for example

smuggling people, drugs and guns. The national and European legislators realized this

case too, and particulary after the terrorist attacts on New York City and Washington D.

C. on 11 September 2001, which was regarded as an attack not just against the United

States of America but the West and the free world as a whole, the security became the

first priority among the leaders in the European Union.

2.2. Strengthening security

One of the „cornerstone” of enhancing security in the Member States, and in the area of

freedom, security and justice was creating the European arrest warrant (hereinafter EAW)

among the European Union Member States instead of the traditional extradition in the

international law. The EAW is a judicial decision issued by a judicial authority of

European Union Member State in order to arrest and surrender by another Member State

of a requested person for the purposes of conducting a criminal prosecution or executing

a custodial sentence or detention order. The main principle of the EAW is the mutual

recognition of the judicial decisions in European Union criminal law and the main aims

are to make the surrender procedure simple and quick. „Even though it is not explicitly

mentioned in its text, the purpose of the framework decision on the EAW is to simplify

and speed up extradition procedures between the EU member states.”10 According to the

idea of EAW the judicial authorities of the Member States work directly together during

the surrender process, recognize and enforce the judicial decision of another Member

State. In our opinion, the principle of the mutual recognition was a major change of

approach within the European Union in order to improve co-operation in criminal

matters.

10 Libor Klimek: op. cit.: p. 32.

2.3. EAW Framework Decision

The European Union had to choose the tool of realizing the enforcement of the EAW.

However, it was difficult and there were a lot of debates, because the criminal law is an

area where the states are afraid of to give up any elements of their sovereignty and fulfil

any obligations. Therefore, the European Union chose to set up the basic rules of the

EAW in a Framework Decision. The Member States adopted the Framework Decision

2002/584/JHA on the European arrest warrant and the surrender procedures on 13 June

2002, in Luxembourg, and it entered into force on 1 January, 2004.11 The EU Member

States had to take all the necessary measures to comply with the provisions of the

Framework Decision by 31 of December 2003.

The legal basis of the EAW is framework decision, which, in general, obligates the

Member States to achieve the goals, but leaves national authorities to choose the form

and methods, however the framework decisions do not entail effect, in order to fulfil their

objectives the Member States shall implement them into national legislation.12

2.4. Implementation of EAW Framework Decision in the Visegrad-countries

The method of the implementation of EAW framework decision could be by two means

as followings:

adoption of a completely new legislation

adoption of an amendment of an already existing legislation.

In our study, we would like to mention the methods of the implementation of the so

called Visegrad-countries, because the Prosecution Service of these countries work

together in the international cooperation in criminal matters and our general prosecutors

meet every year to discuss the actual problems. The EAW Framework Decision was

transposed into the internal law in Poland at first. The new provisions were inserted into

the Polish Code of Criminal Procedure. Similarly, in the Czech Republic the provisions

of the EAW Framework Decision were inserted into the Code of Criminal Procedure by

the implementing act. In the Slovak Republic the EAW Framework Decision was

implemented into national law as a special law, which means it did not amend already

existing legislation. 11 The Framework Decision was amended by the Framework Decision 2009/299/JHA enhancing the

procedural rights of persons and fostering the application of the principle mutual recognition to decisions rendered in the absence of the person concerned at the trial.

12 Framework decisions are very similiar to the legal instrument of directive.

Hungary fulfilled its obligations to comply with EAW Framework Decision by special

law, with Act CXXX of 2003, which was amended by the Act CLXXX of 2012.

2.5. The Hungarian special law on implementation in accordance with the EAW

Framework Decision

In this part of our paper we examine the scope of the EAW, the grounds for non-

executing of the EAW in the light of the Hungarian implemented law and Hungarian

case-law.

2.5.1. The scope of the European arrest warrant

EAW may be issued for acts punishable by the law of the issuing Member State by a

custodial sentence or a detention order for a maximum period of at least 12 months or,

where a sentence has been passed or a detention order has been made, for sentences of at

least four months with a verification of double criminality. In these cases, the double

criminality test can be applied, which means that the executing Member State may be

subject to the execution of an EAW to the condition that the act is also punishable under

its own law.

EAW should be issued, if the criminal offences listed in the framework decision (for

example, terrorism, corruption, trafficking in human beings) are punishable in the issuing

Member State by a custodial sentence or a detention order for a maximum period of at

least three years without a verification of double criminality. We have to keep in mind

that in the listed crime categories the double criminality is not needed, if they are

punishable for a maximum period of at least three years imprisonment. „Yet, the EAW-

FD abolishes the dual criminality requirement for thirty-two categories of offences in

Article 2 (2).”13 If the listed criminal offences are punishable less than for a maximum

period of three years, double criminality is required.

2.5.2. Grounds for non-executing of the European arrest warrant

We can talk about mandatory and optional grounds for refusal to execute the EAW. A

remarkable difference between the traditional extradition and the EAW is that, there is

limited number of the grounds for a refusal to surrender. The European Union tried to

reduce the grounds for refusal of the execution because of the principle of mutual trust in

the integrity of judicial systems in other EU Member States. „However, the EAW differs

13 Vincet Glerum - Klaas Rozemond – Elies Van Sliedregt: Lessons of the Europen arrest warrant p. 183.

significantly from the prior system because it removes or at least limits a number of

traditional restrictions.”14 EAW Framework Decision abolishes grounds for refusal such

as own nationals, dual criminality in some cases or political offences.

Mandatory grounds for refusal to execute EAW are the followings:

A. Executing judicial authority refuses to execute the EAW if the offence on which the

arrest warrant is based is covered by amnesty in the executing Member State. The word

amnesty may cause problems since it is used in various meanings. It can be a general

pardon, an individual pardon and rebates for sentences.

B. Executing judicial authority refuses to execute the EAW if the requested person is

already judged by a Member State in respect of the same acts. This is the „ne bis in idem”

principle, which means that a person cannot be sentenced or prosecuted twice in

connection with the same act. This principle is reflected as an individual human right in

the major international documents. „Ne bis in idem rule ensures that a person is not

prosecuted or tried more than once in respect of the same acts.”15

C. Executing judicial authority refuses to execute the EAW if the requested person may

not be held criminally responsible for the acts, owing to his age. The framework decision

does not specify the lower or upper limits of person's age. The age of criminal

responsibility is anchored in domestic criminal codes of the member states. In Hungary,

the minimum age of criminal responsibility is fourteen years. Persons under the age of

fourteen years at the time the criminal offense was committed shall be exempt from

criminal responsibility, with the exception of homicide, voluntary manslaughter, battery,

robbery and plundering, if over the twelve years at the time the criminal offense was

committed, and if having the capacity to understand the nature and consequences of his

acts.

The minimum age of criminal liability is different in Member States according to the

national traditions, which may cause problems during the application of EAW.

The optional grounds for refusal to execute EAW are the followings:

A. Executing judicial authority may refuse to execute the EAW if the double criminality

is absent in those cases, where it is required. Execution of EAW shall not be refused 14 Steve Peers: The European Arrest Warrant: The Dilemmas of Mutual Recognition, Human Rights and

EU Citizenship IN: the court of justice and the construction of Europe, Analyses and Perspectives on sixty years of case law, Asser Press, The Hague, the Netherlands, 2013, p. 524.

15 Steve Peers op. cit.: p. 531.

because 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 as the law of

issuing Member State.

B. Executing judicial authority may refuse to execute the EAW if the person who is the

subject of the European arrest warrant is being prosecuted in the executing Member State

for the same act as that on which the European arrest warrant is based.

C. Executing judicial authority may refuse to execute the EAW if the executing judicial

authorities have decided either not to prosecute for the offence on which the EAW is

based or to halt proceedings or a final judgment has been passed.

D. The executing judicial authority may refuse to execute the EAW where the criminal

prosecution or punishment of the requested person is statute-barred according to the law

of the executing member state and the acts fall within the jurisdiction of that Member

State under its own criminal law.

E. The executing judicial authority may refuse to execute the EAW where the executing

judicial authority is informed that the requested person has been finally judged by a third

State (a non-EU member state) in respect of the same acts provided that, where there has

been sentence, the sentence has been served or is currently being served or may no longer

be executed under the law of the sentencing country.

F. The executing judicial authority may refuse to execute the EAW if the EAW has been

issued for the purposes of execution of a custodial sentence or detention order, where the

requested person is staying in, or is a national or a resident of the executing Member

State and that State undertakes to execute the sentence or detention order in accordance

with its domestic law.

G. The executing judicial authority may refuse to execute the EAW where it relates to

offences which – are regarded by the law of the executing Member State as having been

committed in whole or in part in the territory of the executing Member State or in a place

treated as such, or – have been committed outside the territory of the issuing Member

State and the law of the executing Member State does not allow prosecution for the same

offences when committed outside its territory.

According to the most experts, the Framework Decision omitted to set out a refusal

ground based on the infringement of human rights and a consistent process of legal

remedies. „The absence of an explicit ground for refusal based on the infringement or

risk of infringement of human rights has to be mentioned. This omission results in

important differences between member states transposing legislation.”16 We agree that

such an omission results in important differences in the legal remedies available at

Member State level, and in our opinion the Framework Decision should rule a minimum

standard for legal remedies.

2.5.3. Bob-Dogi sentence

Bob Dogi, who is a Romanian national lorry driver, committed a road traffic accident on

the public highway on 27 November 2013, in Hungary, for which he was responsible due

to the excessive speed and left the country. On 23 March 2015, the District Court of

Mateszalka issued EAW against him in connection with the criminal proceeding. Bob

Dogi was arrested in Romania and appeared before the court. The court decided to

suspend proceedings and refer the case to the European court for a preliminary ruling.

The problem with the EAW was that the Article 8 (1) (C) of the Framework Decision

provides that the EAW must contain information set out in accordance with the form

contained in the annex, relating to an evidence of an enforceable judgement, an arrest

warrant or any other enforceable judicial decision having the same effect, coming within

the scope of Article 1 and 2 of the Framework Decision. However, the EAW was issued

in a simplified procedure in this case, because Bob-Dogi was already outside the territory

of Hungary. Under this simplified procedure, it was possible for EAW to be issued

directly, without the need for any prior national arrest warrant. This EAW stated that it

covers the territory of Hungary, and therefore constitutes a national arrest warrant at the

same time. The Romanian court considers that there are fundamental differences between

an EAW and a national arrest warrant. An EAW is issued in order to arrest and surrender

a person who is in the territory of the executing Member State, where a national arrest

warrant is issued in order to arrest a person who is in the territory of the issuing Member

State.

The European Court claimed that Article 8 (1) (C) of the Framework Decision is to be

interpreted as meaning that the term arrest warrant must be understood as referring to a

national arrest warrant that is distinct from the EAW. It means, there must be a national 16 Micalea Del Monte: European added value of revising the European arrest warrant, European Added

Value Assessment, 6/2013: p. 15.

arrest warrant first, so that the later issued European arrest warrant can be valid.

According to the principle of mutual recognition, Member States are obliged to execute

an issued EAW. Executing judicial authorities may refuse to execute an EAW only in the

above-mentioned cases, listed in the Framework Decision. The provision of the

Framework Decision leaves no discretion as to the grounds for non-execution other than

set out in the provisions. However, if executing judicial authority reaches the conclusion

that the EAW was issued in the absence of any national arrest warrant separate from the

European arrest warrant that authority must refuse to execute the European arrest warrant

on the basis that it does not satisfy the requirements as to lawfulness laid down in Article

8 (1) of the Framework Decision.

The consequences of the Bob – Dogi sentence arose on the legislation level and

jurisdiction level too. As an end of this chapter, we would like to show what it meant for

the prosecution services. We had to overview all the cases, in which an EAW was issued

if it meets the following requirements:

the existence of a national arrest warrant is a validity requirement of an European

arrest warrant

the national arrest warrant must be issued first by a judicial authority (prosecution

service, or court)

the issuing date of a national arrest warrant cannot be later than the issuing date of

the European arrest warrant.

In those cases, where national arrest warrant had not been issued before the EAW issued,

the prosecutor had to issue a national arrest warrant. In those cases, where a national

arrest warrant was issued by police department, the prosecutor had to annul the national

arrest warrant (because police department is not regarded as a judicial authority) and then

issue a new national arrest warrant. Once the national arrest warrant is issued that

complies the requirements of the Framework Decision, the prosecutor has to propose to

the investigative judge to annul the former issued EAW and issue a new EAW based on

the valid national arrest warrant.

3. Nationality clause

3.1. Concept and background

Many states are traditionally strongly opposed to extraditing their own nationals.17 Today

these practices defendable effectively only on the basis that the extraterritorial

jurisdiction of states expanded considerably during the past decades.

Legal systems in the member states are based on two different systems, common law and

civil law systems. Civil law systems usually resort to this measure to protect their

nationals but to compensate for any negative effects, these states commonly provide for

jurisdiction over crimes committed by their nationals abroad. In common law systems the

primary basis of jurisdiction is territoriality so, they generally do not establish jurisdiction

over extraterritorial acts of their nationals, confine it to serious offenses or impose a dual

criminality requirement. To facilitate justice, they usually permit the extradition of

nationals.18

In Europe because of the overall dominancy of the civil law systems the nationality

exception became recognized and strengthened by national statutes, constitutional

provisions and extradition agreements. The first revolutionary step toward the abolition

of the nationality exception was The European Convention on Extradition concluded

within the Council of Europe in 1957 which confirmed the right of Contracting Parties to

refuse extradition of their nationals.19 The next big step towards the new regime was the

Convention on Extradition between Member States of the EU drafted in 1996.

So legislation concerning the extradition of nationals took baby steps towards the decline

of nationality exception but between 1998 and 2001 three things have happened which

have sped the progress up. The first was the adoption of the Rome Statute for the ICC in

July 1998. Article 102 of the Convention distinguishes surrender to international courts

from state to state extradition, thereby establishing the inapplicability of the nationality

exception. The second was the 1999 Tampere European Council meeting, which made

cooperation in criminal matters a clear priority within the EU. And the third and final one

of them was 9/11, which made European leaders recognize the importance of cooperation

in fighting international crime ever so clearly and its directly contributed to a speedy

17 ?Ivan Anthony Shearer, Extradition in International Law (Manchester: Manchester University Press, 1971) 94-132; M. Cherif Bassiouni, International Extradition: United States Law and Practice (4th ed., Dobbs Ferry, N.Y: Oceana Publications, 2002) on p. 682-68918 Zsuzsanna Deen-Racsmány - Judge Rob Blekxtoon, “The Decline of the Nationality Exception in Extradition? The Impact of the Regulation of (Non-)Surrender of Nationals and Dual Criminality under European the European Arrest Warrant” on p. 2.19 ? Art. 6(1)(a), supra note 17; Plachta, supra note 6 at 80-84.

agreement on the FD.20

3.2. The nationality exception in the EAW-FD

The FD made a huge step towards the abolition of this ancient privilege. The fact that the

nationality is not a mandatory refusal ground was a huge achievement. But we also have

to admit that it did not signified the sunset of nationality exception since the EAW-FD

considers nationality and residence clauses as optional grounds of refusal (Article 4(6)).

Their implementation into domestic legislations is an actual stress-test for mutual trust

and reveals whether an EU member state is ready or not to give some legal protection

also to European citizens who are not its own nationals.21

3.3. Shortcomings and controversies

At first in this section we should take a brief look at a simple fictional case created in the

abstract of Zsuzsanna Deen-Racsmány and Judge Rob Blekxtoon. The problem their

example highlights is the following in a nutshell:

MS A receives an EAW from MS B concerning X, a national of Member State A. X is

wanted in MS B for an offence listed in Article 2(2), therefore dual criminality cannot be

tested. MS A’s national legislation provides guarantees against the extradition of nationals

but permits surrender if MS B can guarantee that if X is sentenced to a custodial sentence

it can be enforced in MS A. So after in MS B, X is sentenced to two years of

imprisonment in accordance with its assurance B intends to transfer X back to A, but A’s

authorities realize their lack of competence to enforce the sentence because the act which

served as a basis for the conviction of X de not constitute an offence in A.22

This example makes is it obvious that the EAW-FD contains some loopholes which are

created due to the wish to abolish two of the traditional exceptions in extradition at the

same time.23 The fact that some member states have transposed the nationality exception

into their legal systems as a mandatory ground of refusal rather than an optional one24 like

in the FD have deepened this problem significantly. For example Hungary implemented

the nationality exception as a mandatory ground for refusal, because when the suspect is

20 ?Supra note 2 at p. 13.21 ? Luisa Marin - 'A Spectre is Haunting Europe': European Citizenship in the Area of Freedom, Security and Justice - Some Reflections on the Principles of Non Discrimination (on the basis of nationality), Mutual Recognition and Mutual Trust Originating from the European Arrest Warrant” on p. 2.22 Supra note 2 at p. 14.23 Supra note 2 at p. 1624 ? Supra Note 7 at p. 8

a Hungarian national and resident as well, and the aim of the EAW is to execute a

custodial sentence or detention order and the suspect do not consents to surrender, the

court shall refuse the execution of the EAW.25

Another issue worth mentioning is the difference between how national legislations

implement the nationality exception, do they expand it to non-nationals as well or they do

not like for instance Hungary or Italy.

Conclusions

Although it is undeniable that the EAW-FD took a big and significant step towards the

abolition of nationality exception there are certain issues that are need to be addressed,

because shortcomings and controversies will reduce the effectiveness of the EAW and

will raise problems of credibility, possibly leading to the decline of mutual trust and

increasing reluctance to let go of the nationality exception.26

We also need to remember that member states are allowed to refuse the execution of

EAW request on other grounds, and those exceptions could provide a significant measure

of protection and deflate the argument in some cases under the EAW that the nationality

exception is necessary to protect one’s nationals from excessive exercise of

extraterritorial jurisdiction.27 As a closing though we would like to cite the relevant part

of the preamble of the Commission proposal concerning the raison d’être of the

nationality exception:

“Since the European Arrest Warrant is based on the idea of citizenship of the Union…the

exception provided for a country’s nationals, which existed under traditional extradition

arrangements, should not apply within the Common Area of Freedom, Security and

Justice. A Citizen of the Union should face being prosecuted and sentenced wherever he

or she has committed an offence within the territory of the European Union irrespective

of his or her nationality.”

3.4. The rule of speciality

Introduction and terminology:

International cooperation in criminal matters – due to the sovereignty of the Member

States – is rarely unconditional, and we can often find certain instruments that are aiming

25 2012. évi CLXXX. törvény article 5(2)26 ? Supra note 2 at p. 1627 ? Supra note 2 at p. 31

to set certain conditions concerning the extradition process. One of these typical

conditions (bars) is the rule of speciality which is basically prohibits the requesting states

from prosecuting offences that are not specified in the request. In other words the rule of

speciality means that the requesting state can only prosecute the surrendered person for

the crime for which extradition was granted.28 So after the proceedings for a specific

offence, the person is ordinarily permitted to leave the requesting member state without

further prosecution.29

3.8. The rule of speciality in EAW proceedings

This brings up the obvious question that is it surprising that we find the rule of speciality

in the Framework Decision on the EAW in Articles 27 and 28? Especially since that in

contrast to extradition procedures surrender does not take place between sovereign states

but between judicial authorities30and based on the principle of mutual recognition. So is

the execution of an EAW should entail any limitation on the ius punendi of the authorities

of the issuing Member States?

The explanation concerning this matter is based on the following logic: although the

EAW and the surrender process is based on mutual recognition the process itself is far

from automatic, and the FD specifies conditions for surrender, (Article 2) mandatory and

optional grounds for refusal (Articles 3,4, 4a) and provides for particular situations where

surrender may be made dependent upon certain guarantees (Article 5). These conditions

and exceptions explain the inclusion of the speciality rule in the EAW-FD. Moreover the

ECJ has held that the rule of speciality is linked to sovereignty of the executing Member

States and confers a right on the surrendered person.31

Articles 27(2), 28(2) of the FD define the principal rules concerning speciality and

onwards transfer. According to these rules the issuing Member State must refrain from

prosecuting, sentencing and depriving of his or her liberty the person surrendered for an

offence committed prior to his or her surrender other than that for which he or she was

28 Marek Kordik – „European Arrest Warrant and mutual cooperation in criminal matters between EU Member States: selected application problems” Debreceni Jogi Műhely 2014. évi (XVI. évfolyam) 1-2 szám29 Samuli Miettinen – “Onward Transfer under the European Arrest Warrant: Is the EU moving towards the free movement of prisoners?” New Journal of European Criminal Law, Vol. 4, Issue 1–2, 2013 p. 100.30 ? Vincent Glerum, Klaas Rozemond, Elies Van Sliedregt – “Lessons of the European Arrest Warrant” p. 191.31 ?Case C-388/08 PPU, Artur Leymann and Aleksei Pusovarov [2008] ECR I-8993, para 44.

surrendered. Likewise, the issuing Member State may not surrender to another Member

State the person surrendered for an offence committed prior to his or her surrender.32

These principles are subject to a number of exceptions (Article 27(3) and 28(2)).

3.5. Exceptions in relation with the rule of speciality and onwards transfer

According to Article 27(1) and 28(1) Member States may make a notification, consent is

presumed to have been given for a prosecution, sentencing or detention for a prior

offense, unless in a given case the executing judicial authority decides otherwise (Article

27(1)). The same rule applies for surrender to another Member State (onwards transfer).

This exception however is only applicable on a reciprocal basis. So where the executing

state has not made such a notification the issuing Member State is bound by the speciality

rule even if the later has made a notification, and vice versa.33 However only three

Member States (Austria, Estonia and Romania) have availed themselves of the

opportunity afforded by Article 27(1) and only one Member State (Romania) has made a

notification under Article 28(1). The exceptions stated in Article 27(3) and 28(2) could be

categorized in the following manner:

A few of the exceptions concern the consent of the authorities of the executing Member

State or of the requested person (Art. 27 (3) e, f, g; Art. 28 (2) b, c.). Another set of

exceptions concerns the relatively minor seriousness of the offence or the relatively

minor consequences for the requested person. (Art. 27 (3) b, c, d.) Least but not last one

of the exceptions places a temporal bar on the rule of speciality. Therefore the rule does

not apply when the surrendered person has not left the issuing Member State within forty-

five days after his final discharge, having had the opportunity to do so, or when he has

returned to that member state after having left it34 (Art. 27 (3) a, Art. 28 (2) a.).

The FD do not treat the speciality rule as a bar to surrender but rather as a rule regarding

the consequences of surrender, therefore the rule itself is not a ground for refusal.35 As a

result of this, as far as the execution of the EAW is concerned member states do not face

the obligation to implement the rule of speciality at the national level. I must add that

Hungary is one of the many member states that implemented the speciality rule.

3.6. The necessity and the possible future of the speciality rule32 Supra note 24 at p. 192.33 Supra note 24 at p. 192.34 Supra note 24 at p. 193.35 Supra note 24 at p. 193.

Although the EAW-FD is based on mutual trust, the member states apparently were not

yet prepared to jettison the speciality rule.36 An evaluation of the EAW-FD (Council

Document 8436/10, of 12th of April 2010) questioned the applicability of the rule of

speciality within the European area of freedom, security and justice, which is based on a

high degree of mutual confidence among the member states. As a result the Council of

the European Union proposes to conclude that “reflection should continue both at EU and

bilateral levels as to advantages of moving gradually towards abolishing the application

of that rule.”37

There is an additional factor one should consider concerning the future applicability or

the raison d'etre of the speciality rule, and that is the fact the Convention on the Nordic

Arrest Warrant which was concluded by Finland, Denmark, Sweden, Iceland and Norway

- although based on the EAW-FD38 - departs from speciality as a main rule. And although

it is obvious that in contrast to the 28 Member States of the EU the Nordic states are

sharing similar languages, legal cultures and overall approach concerning criminal law

policy but maybe a reconsideration of the legal wording of the EAW-FD concerning the

speciality rule would be due, because in my opinion the ever-deepening judicial

cooperation is one of the key elements concerning the future developments in the EU.

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