Experience of Slovenia in implementation of European Arrest Warrant Workshop on judicial cooperation in criminal matters in South Eastern Europe Belgrade, 7. - 8.11.2011

FD on European Arrest Warrant – dates: - of document: 13 June 2002 of publication: Official Journal L 190, 18.7.2002 of entry into force: 7 August 2002 (Art. 35 of FD) of transposition: 31 December 2003 (Art. 34/1 of FD)

Transposition of EAW framework decision at the time of adoption of FD Slovenia is not EU MS, but a candidate country For new MS: binding from 1.5.2004 (accession treaty)

Transposition of EAW framework decision Constitutional amendments in progress since middle of 2002 due to accession to EU – amendments adopted in 2003 One of the reasons: extradition/surrender of own nationals (extradition is constitutional concept) – Art. 47 of the Constitution

Transposition of EAW framework decision - due to complexity of the subject, working group for transposition of FD is established within MoJ end of 2003 - implementation in separate law (European Arrest Warrant and Surrender Procedures Act – Official gazette, No. 37/2004 – in force since 1.5.2004)

Transposition of EAW framework decision Reasons for separate law: Extensive and special substance of FD New amendments of CPA would be necessary Idea of new act dealing with judicial co-operation in criminal matters only (potentially among EU MS only) Short time limit for implementation

Transposition of EAW framework decision Major difficulty for implementation: not being present at negotiations of FD Consequence: background for some solutions in FD not sufficiently known – incorrect implementation of FD in some parts of national law (see also Report from the Commission COM(2005) 63 final and Annex)

Transposition of EAW framework decision National legislation on EAW in force since 1.5.2004 – after two years’ and a half of practice need for change of national law – for partly incorrect implementation for gaps indicated by practice

Transposition of EAW framework decision Basis for amendments: Report from the Commission COM(2005) 63 final and Annex Evaluation report of the practical application of the EAW and the corresponding surrender procedures between MS Comments and opinion by practicioners (i.e., judges)

Transposition of EAW framework decision - New law on MLA in criminal matters and extradition/surrender procedures - an old idea becoming reality Law on Cooperation in Criminal Matters with Member States of EU – valid since 24.11.2007, in force since 24.2.2008 Transposing several existing FD – EAW, Freezing orders, Financial penalties, Confiscation orders, Criminal records Includes also MLA part, transfer of proceedings, transfer of prisoners

European Arrest Warrant What is an EAW? Article 1/1 FD: only a formal definition A form filled out by a judicial authority of a Member State for the surrender of a person for prosecution or enforcement from another Member State. European handbook on how to issue a EAW: http://www.ejn-crimjust.europa.eu/ejn/

Goals of European Arrest Warrant Surrender pursuant to an EAW should become a judicially controlled process Expeditious procedure Based on assumption of universal high degree of human rights protection Limited grounds of non-execution Replace old extradition arrangements in one step

Scope of the European Arrest Warrant General: May be issued for acts punishable by law of the issuing MS by custodial sentence or detention order for a maximum period of at least 12 months or for sentences of at least 4 months Problem of proportionality

Scope of the European Arrest Warrant Abolition of dual criminality principle for list of 32 offences (Art. 2/2 of the FD) For other offences – surrender may be subject to the condition of dual criminality

No responsibility on account of age in the executing MS Grounds for refusal and guarantees Grounds for mandatory non-execution of EAW (Art. 3 FD) Only three grounds: Amnesty in executing MS where that state had jurisdiction to prosecute the offence under its law Ne bis in idem No responsibility on account of age in the executing MS

7 grounds for optional execution Grounds for refusal and guarantees Grounds for optional non-execution of EAW (Art. 4 FD) 7 grounds for optional execution Implementation different in MS – some make it obligatory grounds for refusal, some make it optional also in their national legislation, some combine …

Slovenia implemented 5 grounds for refusal as optional, 9 as mandatory Grounds for refusal and guarantees Grounds for optional non-execution of EAW (Art. 4 FD) Slovenia implemented 5 grounds for refusal as optional, 9 as mandatory

Grounds for refusal and guarantees Guarantees to be given by the issuing MS (Art. 5 FD) - Judgements in absentia and the person has not been summoned – surrender may be subject to condition that issuing judicial authority guarantees that the person will have opportunity to apply for re-trial (see d) of the form) - Lifelong imprisonment - surrender may be subject to condition that the issuing MS has provisions for a review of penalty or application of measures of clemency (see h) of the form) - Surrender of own nationals for prosecution - surrender may be subject to condition that the person is returned to executing MS in order to serve the sentence there

Grounds for refusal and guarantees Surrender of own nationals? Not a general ground for refusal Article 4 subpara 6 FD: Optional ground for refusal for the enforcement of a sentence, where the requested person a resident or a national of the executing State – executing MS executes the sentence in accordance with its domestic law Article 5 para 3 FD: Guarantee for nationals or residents to serve the sentence in the executing State

Grounds for refusal and guarantees Removal of a political element No exception for political offences No political motivated offences

Content and form of the EAW (Art. 8 FD and Annex) Art. 8: which information, set out in accordance with the form in Annex, the EAW shall contain Annex: contains the form for EAW, which is available also on internet: http://www.ejn-crimjust.europa.eu/ejn/ Forms as amended by “In absentia Framework Decision” The completely and carefully filled out form is the key for a successful surrender

Procedures and time limits One of the goals of EAW: to expedite the procedures + respect human rights

Procedures and time limits Transmission of EAW EAW is sent - directly or - through SIS or - through the secure telecommunications system of the EJN or Interpol or Through Central Authority Difficulties in transmission of EAW: dealt with directly or through central authorities

Procedures and time limits Transmission of EAW If the location of the person is not known Issuing authority Judicial Authority SIS Interpol (EJN secure telecommunication system) If the location of the person is known, except in cases of Art. 7/2 FD Executing authority Judicial Authority Rule is direct communication

Procedures and time limits Central authority (Mandatory) Central (administrative) authority under 7 para 2 FD (Supporting) Central authority under 7 para 1 FD

Procedures and time limits Time limits Decision on EAW 60 days after arrest (if consent 10 days after consent has been given) Plus 30 days (in specific cases) Surrender of the person 10 days Flexibility if circumstances beyond the control of the Member States

Summing up: extradition procedure vs. surrender procedure - Communication: via diplomatic channel/through central authorities - Final decision is political - Request for extradition with documentation - Dual criminality principle - Own nationals limitations - Rather long procedure Surrender procedure - Direct communication - Strictly judicial decision - Form - Partly abolishing dual criminality principle - No own nationals limitation - Time limits

Statistics 81 issued, 10 surrenders EAW Slovenia as issuing state Slovenia as executing state 2005 2006 2007 2008 2009 2010 81 issued, 10 surrenders 29 received, 25 arrested, 15 surrenders 67 issued, 14 surrenders 40 received, 34 arrested, 24 surrenders 54 issued, 8 surrenders 43 received, 36 arrested, 25 surrenders 37 issued, 10 surrenders 65 received, 61 arrested, 50 surrenders 26 issued, 5 surrenders 56 received, 47 arrested, 39 surrenders 28 issued, 4 surrenders 99 received, 88 arrested, 73 surrenders

Statistics 17 23 9 18 16 15 Extraditions 13 14 Slovenia as requesting state Slovenia as requested state 2005 2006 2007 2008 2009 2010 13 14 17 23 9 18 16 15

Statistics Period from arrest to decision on extradition/surrender - EAW: With consent 1 – 30 days Without consent 6 days – 7 months - extradition: In average four months, but never less than two months Simplified procedure – 7 days – 1 month

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