1. European Arrest Warrant
(EAW)

2. European Union Schengen
Schengen Implementing Convention (SIC) – Articles 59-66
intented to supplement and to facilitate the implementation of the 1957 CoE Convention
Agreement of 26 May 1989 between the EC Member States on the simplification and modernization of methods of transmitting extradition requests
1995 Convention on simplified extradition procedure
1996 Convention relating to extradition
2002 European arrest warrant

3. Schengen Implementing Convention (SIC)
interruption of prescription - amnesty: ruled by law requesting State only (Article 62)
extradition duty for matters of excise duty, VAT and customs duties (Article 63)
notice included in the SIS in accordance with Article 95: same force as a request for provisional arrest under the 1957 CoE Convention (Article 64)
transmission allowed via Ministry (Article 65)
informal (simplified) procedure possible (Article 66)

4. 1996 Convention relating to extradition
supplementing
1957 CoE Convention on Extradition
1977 CoE Convention on the Suppression of Terrorism
SIC
new developments
extraditable offences (changes in threshold)
Dual criminality rule abolished for terrorism
political offence exception abolished
fiscal offences - prescription - amnesty: SIC improved
extradition of own nationals (to be derogated by declaration)
specialty principle abolished (to be derogated by declaration)

5. Schengen Agreement

6. Schengen Zone

7. SIS Functioning I B F Dk D A S CSIS NL GR SF IS LUX E P N CSIS NSIS
SIRENE
Italy
SISNET
NSIS
Central Schengen
National Schengen
Information System
Information Systems I
SIRENE
Belgium B
SIRENE
France F
Central computer in
Strasbourg Dk
SIRENE D A
SIRENE
Austria
Germany S
CSIS
SIRENE
Denmark
SIRENE
Netherlands NL GR
SIRENE
Greece
SIRENE
Sweden SF IS
LUX E P
SIRENE
SIRENE
Luxemburg
SIRENE
Finland
Portugal
SISNET
SIRENE
ICELAND N
SIRENE
Spian
SIRENE
Norway

8. Schengen Agreement Application Convention (SAAS)
ALERTS in the SIS
Art. 95 persons wanted for arrest for extradition purposes
Art. 96 third country nationals refusing entry into the schengen area or deportation, expulsion or repatriation matters
Art. 97 missing persons or person who temporarilly need to be placed unter police protection in order to prevent threads
Art. 98 information on witnesses or persons summoned to appear before a judicial authority
Art. 99 discreet surveillance on persons or vehicles
Art. 100 informations on stoles vehicles, stolen or misappropriate firearms etc.

9. Interpol
Interpol
Orange notice – to warn police, public entities and other international organizations of dangerous materials, crimal acts or events that pose a potential threat to public safety
Blue notice – to collect aaditional
Information about a person‘s identity
Or illegal activities in relation to a
criminal matter
Red notice – to seek the arrest or provisional arrest of a Person with a view to extradition based on an arrest warrant
Yellow notice – to help locate missing persons, especially minors
Black notice – to seek information about unidentified bodies
Green notice – to provide warnings about persons who have committed criminal offences and are likely to repeat these crimes

10. Differences between the SIS and Interpol alerts
The SIS alert guarantees almost real-time transmission of informations to all national SIS bureaus
Art. 95 SAAS obliges all contracting parties prior to issuing an alert, to check whether the arrest is authorized under the national legislation of the requested Contracting parties
Same legal basis in all SIS states
In SIS: Strict data protection
SIS is prior to an Interpol for EU countries

11. Background to the EAW: • 1999: Tampere European Council
conclusions (35)
• 2000: Programme of measures to implement
the principle of mutual recognition in
criminal matters •

12. based on mutual recognition
Mutual recognition of judicial decisions in criminal matters
Only in the European Union
Principle: a decision issued by a judge in Member State A must be executed in Member State B as if it had been issued in that Member State B
= « free circulation » of judicial decisions
The principle was adopted in 1999 but is implemented step by step

13. 3. Mutual recognition of judicial decisions in criminal matters
Supposed to be a radical change compared to the previous regime :
Full « judiciarisation » of the procedure : the governments can not be involved in individual cases
Partial abolition of the requirement of double criminality
Grounds of refusal strictly defined (full abolition of the exception for political offence)
Specific timelimits
Specific form: a « warrant » or a « certificate »
 Works well with the European Arrest Warrant, less convincing for the moment for other types of judicial decisions  work in progress…

14. Mutual recognition of judicial decisions in criminal matters
Why is mutual recognition limited to the European Union ?
Different level of integration
EU cooperation = political cooperation
Monitoring of EU accession
Nevertheless, not always easy to justify that difference in the Council of Europe

15. Objectives
• Political: further the creation of an area of freedom, justice and
security
– free movement of presentence and final decisions in criminal matters
• Practical: reduce delays and complexity of extradition procedures between the Member States

16. Guiding principles • Surrender pursuant to an EAW should
become a judicially
controlled process
– primary control takes
place by issuing
judicial authority
– limitation of the role of
competent (i.e.
administrative)
authorities
• Human rights
protection
– based on a high level
of confidence in each
other judicial system -
exceptional suspension
– persecution as ground
of refusal
– safeguard
constitutional
principles

17. Concept of EAW Concept of EAW
• Judicial decision issued by a MS with a view to the arrest and surrender of a requested person by another MS
• Two purposes:
– conducting criminal prosecution (suspects)
– executing a custodial sentence or detention order (convicted persons)

18. Issuing of an EAW • Any offence punishable in the issuing state
by at least 12 m or for which a
sentence/detention order has been
passed/made of at least 4m
• List of 33 offences: no double criminality if
punishable in the issuing state by at least 3
years

19. Formal requirements
no extradition documents, but one form, available in all 23 official languages
no evidentiary requirements!

20. Evidentiary requirements
None under the 1957 CoE convention
For Continental European States, the issuance of a warrant of arrest within a requesting state, evidences that a judicial authority, within that state, has determined that there is sufficient evidence in the case. On that basis, the authorities in the requested state should be able to accept and rely on that determination and not look behind it to reassess the underlying basis of the decision.

21. Common Law States
Common law states may require, in addition to the warrant, the submission of evidence by the foreign state, sufficient to meet a prescribed domestic standard. Many such states have also demanded that the evidence be adduced in a form consistent with the law of the requested state, before extradition will be granted
=> reason: extradition is considered as a genuine new criminal procedure which has to meet all the domestic criterias for criminal prosecution

22. Transmission of an EAW • Direct transmission to competent executing
authority:
– find out through EJN
– transmit through secure telecommunications
network EJN
– if not possible: through Interpol
– in general: any means capable of producing
written records - allowing to establish
authenticity

23. Transmission of an EAW Signaling the EAW through SIS
– transitional period: EAW will still have to be
transmitted
• Central authorities may be made responsible
for the administrative transmission or
reception of EAW’s

24. Handling of an EAW by executing judicial authority
Obligation to arrest person (unless prima
facie ground of non-execution?)
– detention shall be governed by law of executing MS + Article 5 ECHR
– right to counsel + interpreter

25. Handling of an EAW by executing judicial authority: information of person concerned
• Duty to inform the arrested person of the
EAW and of its content + of possibility to
consent to surrender
• When EAW in regard of a suspect person
must be heard by a judicial authority in
accordance with the law of the executing
MS and with conditions determined by
issuing & executing judicial authorities

26. Handling of an EAW by executing judicial authority: delays for decision to surrender
• If person consents, decision needs to be
taken within 10 days after consent
• Otherwise:
– decision within 60 days after arrest
– issuing authority may extend by 30 days by
informing the issuing authority
– if time limits are not respected, reasons must be
given

27. • Delays start running at arrest, unless
Handling of an EAW by executing judicial authority: delays for decision to surrender
• Delays start running at arrest, unless
– 1) privileges/immunities: from the date it is
waived
– 2) speciality: from the day on which the
speciality rules cease to apply

28. Handling of an EAW by executing judicial authority: taking of decision to surrender
Principal obligation for executing state to
execute it- except grounds of non-execution
• Distinction (non-)mandatory grounds
– non-mandatory grounds will depend on the
legislation of the executing MS
– discretion for executing authority?
• In case of refusal: reasoned decision

29. Handling of an EAW by executing judicial authority: taking of decision to surrender
• Mandatory grounds of refusal:
– amnesty
– ne bis in idem (served or no longer executable)
– person under the age of penal responsibility

30. Handling of an EAW by executing judicial authority: taking of decision to surrender
Non-mandatory grounds of execution
– double incrimination when applicable (2)
– other forms of ne bis in idem
– statute-barred offences
– execution of sentence in executing state
– extraterritorial jurisdiction

31. Dual criminality
the act in question must be a crime in both the requesting and requested states !
historic origin in the 19th century – to protect one‘s citizen from „unjust“ prosecution
different standards in the countries of the 19th/early 20th century about what was a criminal act
extradition was a tool for foreign policy

32. Handling of an EAW by executing judicial authority: taking of decision to surrender
• Three situations where guarantees may be demanded by the executing authority
– in absentia
– life sentences
– return of nationals

33. Non extradition of nationals
historic background in Continental Europe:
- ancient greek city states and Rome did not extradite their citizens to other States
- up until the early 1800's, extradition was directed almost exclusively to the return of fugitives sought for political or religious offences.
- Catholic/Protestant States were to protect their citizens from religious prosecution

34. traditional „safeguards“ in case of non-extradition of nationals
„personal jurisdiction“: international law recognized the criminal jurisdiction for acts of foreigners committed on its territory and acts of its own nationals committed abroad (aut dedere aut iudicare)
recognition of foreign judgements: courts would recognize and enforce a foreign judgement against their own citizen, even if the defendant may not have submitted himself under that jurisdiction otherwise

35. Anglo-American Law
The historical basis of English & common law criminal jurisdiction is territorial, it being the function of the English criminal courts to maintain the Queen's peace within her realm - Board of Trade v. Owen [1957] A.C. 602
It would be an unjustifiable interference with the sovereignty of other nations over the conduct of persons in their own territory if we were to punish persons for harmful conduct which did not take place in the UK – Treacy v DPP [1971] AC 537

36. Handling of an EAW: decision in case of multiple requests
• Due consideration of all circumstances, in particular
– relative seriousness and place of the offences
– respective dates of EAW’s
– suspects or convicted persons
• Decision by executing judicial authority (Eurojust advice) in case of EAW’s – by competent authority in case of concurrence with extradition request from third state

37. Decision to surrender: remedies available
• Framework decision: ???
• Domestic law of executing MS
• Rule 39 of the Rules of the European Court
on Human Rights

38. Surrender of persons pursuant to an EAW: time limits
• Immediate notification of decision to surrender to the issuing judicial authority
• Surrender as soon as possible, but no later than 10 days after final decision, on date agreed
• In case of unforeseen circumstances agree on new date and surrender within 10 days of that date

39. Surrender of persons pursuant to an EAW: time limits
• Exceptional temporary postponement for
serious humanitarian reasons
• In case of violation of these time limits:
release

40. Surrender of persons pursuant to an EAW: postponement
• Possibility to postpone surrender in order to allow prosecution/service of sentence in executing MS
• Alternative: surrender on conditions agreed by executing and issuing judicial authorities

41. Effect of surrender pursuant to EAW:
• Deduction of period of detention served in
the executing MS
• Speciality principle
• Surrender or subsequent extradition