The European Arrest Warrant (“EAW”) has simplified cross-border judicial surrender procedure for either prosecution or carrying out a custodial sentence or a detention order. Cyprus signed up to the European Convention on Extradition, with Law N. 23/1979, with the process being streamlined with the EU framework decision 2002.[1] How the process has being streamlined shall be explained below, through examining the distinctive features of the EAW. Seeing as the aim of the EAW is to ensure that open borders within the European Union (“EU”), as well as free movement within the EU, do not come to the detriment of law enforcement, with the EAW as an instrument of judicial cooperation within the EU, based on the principle of mutual recognition. The issuing member State’s decision is recognised without further examination, based solely on judicial criteria, showing intra-member State integration of a common judicial area.
However, what makes the EAW are a series of distinctive characteristics which shall be outlined below.
How does the EAW work?
The legal basis of the EAW is the framework decision, with it being applied through the judicial authority of the issuing State . As stated above, an EAW can be issued for either of two reasons:
- Prosecuting a person for a crime carrying a sentence of at least 1 year in prison, or
- Executing a custodial sentence, where the sought person has been sentenced to at least 4 months imprisonment.
Firslty, on the issuing of the EAW, the criminal procedure begins in the issuing Member State, which either leads to a prosecution, or a sentence (Article 2(1)).[2] From then, if a prosecution begins, then the national criteria for an arrest warrant are examined by the judicial authority of that country[3] or if a sentence has been imposed,[4] an EAW is issued by the judicial authority of the issuing member State. The EAW has a prescribed form which needs to be followed, with a list of 32 categories of offences. This is then received by executing judicial authority of the member state if the location where the requested person is at is known, or else, the request is sent to all Member States.
Secondly, onto the stage of the execution of the EAW, once the person has been apprehended, then the person is brought before the Court, where grounds for non-execution of the EAW are examined.[5] If grounds for non-execution arise, then a notification is sent to the issuing judicial authority.[6] Mandatory grounds for non-execution of the EAW are for example amnesty is provided by the executing State for the offence at hand.[7] Whereas optional grounds include for example the situation where an individual is prosecuted by the executing member State for the same offence.[8] If the requested persons, consents to surrender themselves to the issuing State, the decision to surrender is given in 10 days, if they do not consent, the decision is given in 60 days.
By removing central authorities from the decision making process of the EAW and allowing judicial authorities to make these decisions, with only certain designated authorities providing support to judicial authorities, especially for receiving and transmitting EAWs, prevents political influence over EAW, avoiding abuse of the EAW.
An EAW should always be proportionate to its aim, with judicial authorities having to consider whether an EAW is justified in a particular case seeing the severe implications of the requested person’s liberty and freedom of movement restrictions, family life, amongst other reasons. Alternative measures are available for judicial authorities to resort to, which are less intrusive that the EAW, such as:
- European Investigation Order
- Transfer of probation decisions and alternative sanctions
- Transfer of criminal proceedings
- Financial penalties
[1] Council Framework Decision 2002/584/JHA
[2] Article 2(1) Council Framework Decision 2002/584/JHA
[3] Article 2(1)(c) Council Framework Decision 2002/584/JHA
[4] Article 2(1)(c) Council Framework Decision 2002/584/JHA
[5] Articles 3,4, 4a Council Framework Decision 2002/584/JHA
[6] Article 22 Council Framework Decision 2002/584/JHA
[7] Article 3(1) Framework Decision 2002/584/JHA
[8] Article 4(2) Framework Decision 2002/584/JHA
