The Capacity of the European Arrest Warrant

Published: 2021-07-02 10:05:04
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Critically discuss the capacity of the European Arrest Warrant to diminish traditional values of legitimacy and due process in criminal justice. Introduction Judicial cooperation is regarded as one of the main focus of the European Union (EU) integration in criminal matters. In the past decade we have seen revolutionary introductions of new mechanisms in the field that have reformed EU criminal cooperation and have favourably developed the EU into an area of security, freedom and justice. The pioneer initiative in this area has been, without uncertainty, the principle of mutual recognition, which has been regarded as the cornerstone of the judicial cooperation, therefore being the main centrepiece of EU judicial cooperation in criminal matters. The adoption of the framework decision on the European arrest warrant (EAW) has signified a welcome of the first concrete measure in the field of EU criminal law in implementing the principle of mutual recognition. The EAW is (EAW) is an arrest warrant binding throughout all member states of the European Union (EU). When issued, it requires another member state to arrest and transfer a criminal suspect to the issuing state so that the individual can be put on trial or complete a detention period[1]. It has, to date been applied by all member states and has also had more than seven years of testing ground. In exploring the context and implication of the principle of mutual recognition in criminal matters on state values and traditions, this thesis will take the European arrest warrant as a case study. The hypothesis of this thesis is that the European arrest warrant, in theory and practice, challenges the essential functions and prerogatives of member states which are defining features of their state sovereignty. The discussion which follows is dedicated to exploring whether the European arrest warrant diminish traditional values of legitimacy and due process in criminal justice. To do so, it will focus on three axioms around the European arrest warrant; a) the removal of the bar to surrender of owns nationals[2], b) the double criminality requirement and its partial abolition and c) the depoliticisation of the surrender procedure. In examining this research question, a methodological challenge that arose was the interpretation of the concept of traditional values of legitimacy which has been taken in this thesis to mean “sovereignty” as it is a contested concept and could be said to one of the most ambiguous terms in use today[3]. The term is concurrently used by scholars, politicians, jurist, journalist and even laymen in reference to different notions. In this context, prior to setting out examining whether the European arrest warrant challenges state sovereignty and due process in criminal justice, it is evident that the concept of state sovereignty must first be identified to the extent that it will be used in the analysis of this paper. Put simply, state sovereignty, includes a state having political and legal authority over all individuals in regards to any affairs within its territory[4], and as such, said state is not obliged to adhere to any demands from other states as it is equal to and independent of other autonomous states[5]. Therefore the criminal law of a state has a trilogy of defining characteristic that is associated closely with the expression of traditional values of legitimacy within a state due to its series of set rules which lays down its values/principles of what is acceptable and what is not. It also has its own stigmatic punishment[6] and sets of sanctions to support its procedures, while its criminal justice system, such as the judges, courts and the police are designated to interpret and enforce the due process in criminal justice[7]. The characteristic is used as a method of social control[8] within the state superiority and therefore criminal law provides the states with a social control mechanism through which they can regulate human behaviour and thus far exercise its traditional values of legitimacy. The state’s ability to decide what conduct to criminalise, enforce and interpret is the ultimate expression of its legitimacy within its territory, thereby showing democratic negotiations of what is acceptable and what is unacceptable on a national platform. These democratic dialogues are considered to echo the social norms which are particular to each state and its criminal laws, thereby “a product of culture in that it is rooted in the history of a State and exhibits a nation’s deepest convictions and values”.[9] It can also be contended that criminal law is seen as a manifestation of state legitimacy[10] and as such, judicial collaboration in criminal matters through the standard of mutual recognition, in practice and theory, is used to challenge the crucial functions and prerogatives of member states that are defining features of traditional values and legitimacy. Thus legitimacy in criminal law within the state is absolute. Part A) Removal of Bar to Surrender The problems with the challenges raised from the removal of the bar to surrender own national has shown how the capacity of the EAW to strengthen the bond of allegiance between state and its own national in establishing its traditional values and legitimacy; this bond can be transcribed into member states constitutions which has led to numerous problems in implementing the FD with some countries having to make changes to legislations in order to accommodate the obligations to surrender their nationals. This is illuminated in the cases of Germany[11] and Poland, where it was illustrated that there were inherent constitutional issues with the application of the EAW. This in turn showed judgments that state legitimacy is a principle that lies within the hearts of member states and therefore the removal of the bar to surrender own nationals thereby challenges it. This is especially seen in Poland’s vigorous attempts to constitutional preservation as grounds of refusal, of the verification of the double criminality requirement principle in order to diminish the induced challenges. Part B) The Double/Dual Criminality Requirement and its Partial Abolition. The double criminality and partial abolition affects the European Arrest Warrant in diminishing traditional values and legitimacy (sovereignty) by creating extraterritoriality or as some scholars have described as the horizontal transfer of legitimacy. Upon this, the double criminality ensures that the set of principles reflected in criminal law of the executing state thereby confines the loss of legitimacy upon the issuing state use of its criminal justice while that member state executes its own legitimate act within its territory. Upon the list of the 32 categories of offences, and providing that conditions are met, the double criminality requirement and subsequently, the state’s traditional values and legitimacy protection provided is abolished. It is therefore said that some of the offences descriptions are vague, leading commentators to argue that this thus creates a function. Siledregt states, for example, that it allows for certain laxity in the definition of offences which prevents the list from being outdated and therefore in need of constant amendment and also accommodates the crime definition of 27 member states by not being that narrow.[12] On the other hand, there being more than 27 different criminal legal systems and more than 23 official languages in which definitions are expressed differently creates a vague and broad category of crimes. The lack of standardised definitions has created inconsistencies within the chain of transfer of horizontal power of legitimacy. This therefore has created difficulty of finding out which category of offences which the double criminality can be abolished. Due to the fact that more than 23 languages exacerbates the interpretation of the substantial element of the offences and as such has given rise to the partial abolition of double criminality further challenges the horizontal transfer of legitimacy and traditional values. In regards to the offence of rape, for example, in England and France one or more genital organs of the victim or the anus must be involved for penetration to amount to rape, while in other member states (Germany) there is no such conditions and other member states, any sexual penetration is regarded as punishable[13]; this is thus illustrated in the case of European court of human rights M.C v Bulgaria[14]. This complication of definition is also illuminated in the case Julian Paul Assange[15]. Assange case is seen as implementing the “one shoe fits all” approach in EU criminal legal matters. Thereby the EAW is being used to impose a process of extradition that does not reflect the overall natural justice member states nationals deserves. Assange case indicates how the EAW procedure has been put together in ways which by-pass traditional values/national sovereignty. This lack of precision in the classification of offences and the inconsistency in the language or versions of offences in Member States captures even greater legitimate constraints with the abolishment of the double criminality requirement. The clause in article 2(2) “member states can precede without verification of the double criminality of the act” has further created a transfer of horizontal legitimacy of national sovereignty from the issuing state towards the executing state in becoming absolute/authorative as it restrains the role of the executing states in ascertaining its control. Additionally, it is evident that the executing state cedes sovereignty/legitimacy on unstable grounds and as such infringes human rights of any individual that is surrendered under the European arrest warrant[16] particularly their rights to liberty and security and this therefore challenge the traditional values of all member states as this is one of the main principles of their constitutions. The abolition of the double criminality requirement for 32 offences to surrender individuals, although the acts committed do not constitute an offence within the executing state has been challenged in the case of Advocaten Voor De Wereld[17], where the Belgian court submitted a preliminary ruling regarding the conformity of the frame work decision(FD) with the principles of legality, equality and non-discrimination, because by no longer requiring the double criminality principle, these rights will be put at risk[18] and upon evaluation the ECJ examined the FD in light of the protection of fundamental rights, held that the principle of legality of criminal offences and penalties as the general legal principle common to the member states; and as such compliance with the principle must be assessed from a national law perspective and not on the basis of the FD on EAW. But while on the principle of equality and non-discrimination, found that different treatments for list and non-list offenses by the FD was objectively justified; and the FD on EAW is not designed to harmonise the substantive criminal justice. This can be seen as a further bypass the legitimate challenges that arise from horizontal transfer of national/traditional values from the issuing to the executing states, this reasoning can be seen as the courts attempt to keep a high level of mutual trust between member states while establishing the normative value of the EAW[19]. Another case which illustrates the problematic issues regarding the double criminality can be seen in the Julian Assange case. Part C) The Depoliticisation of the Surrender Procedure The link between the double criminality and the depoliticisation of the EAW procedure is the new mode of governance upon which the national judicial authorities becomes players in their own rights within the international system, leading to the creation of transnational network of national judges, demonstrating the plan for the EAW’s horizontal transfer of legitimacy from the issuing state to the executing state, meaning that the power of judges in this power struggle is absolute, even though it can be subject to grounds of refusal, while the sovereignty of the executing state is challenged. This is due to the fact that judges have no political gravity because they are tools to the acts of justice, independent and follows the rule of law in exercising judgment by not endorsing the political issues of the state, in implementing decisions. To this, state values and legitimacy are further diminished and not protected. Furthermore, the ability to exercise legitimacy/traditional values in a political field has been conceded for member states because the move from political to judicial has seen the loss of its diplomatic tool, due to the fact that it is now difficult to pressure through a decision to surrender by way of political or diplomatic means. Additionally, the lack of homogeneity of legal systems has created the emergence of judge’s interiming as concierge of their national legal systems, by acting as porters; judges are passing the jurisdictions of the executive thereby expressing the fundamental political agenda of their government and as such the horizontal transfer of legitimacy in creating a EAW would not defy the states traditional values. However, when judge’s political views are not in line with the government’s political and social objectives, it therefore challenges the state’s traditional values of legitimacy. Yet, a close inspection of the FD shows that the plethora of grounds of refusal added within the FD does not allow automaticity which is one of the principles of mutual recognition, in the agreement by one member state to another, showing member states attempt to protect itself with the leeway within the FD by not automatically taking the decisions of other member states within its territory. This mechanism can be seen as its ploy to screen the horizontal transfer of power which takes place in issuing an EAW, by engaging in such checks. It can be argued that such reluctance is a way of not relinquishing its legitimate rights which is increasingly challenged by the depoliticisation of the European arrest warrant procedure. The Future of the European Arrest Warrant: The European arrest warrant is said to fruitful in reducing the chances of offenders not misusing the free movement of persons within the EU in attempts at escaping justice. However, the integrity of the EAW, such as the abolition of the double criminality is unlikely to change in spite of the human rights concerns. Nonetheless, the commission council are now pursuing changes to address issues of proportionality for EU’s continuing programmes in ensuring that basic rights for accused individuals around Europe. It is shown throughout my research, that member states will protect any risk within their capacity to stop the diminishing of their traditional values of legitimacy in matters of criminal justice. Closing, it is submitted that not enough weight has been given in the EU to analyse and understand EU integration in criminal matters through the lens of the impact it has on Traditional valves and its due process. To this respect, it is submitted that only if Member States understand the intrinsic and real challenges from incorporation of their Traditional values, and ways are establish to pacify the ceding Traditional values/Sovereignty, whilst promoting EU cooperation, will EU mixing in criminal matters proceed on concrete ground. The question one is left with: Is it possible that the European arrest warrants disadvantage citizens from a common law system more than a civil law system or vice versa or could it be that they disadvantage both equally given the inherent distance that the European government has from any of its citizens Bibliography Bartelson J., A Genealogy of Sovereignty, Cambridge: Cambridge University Press, 1995 Abramson W., Extradition in the United States, in Keijzer N. and Sliedregt E. van, The European Arrest Warrant in Practice, T. M. C. Asser Press, 2009 Bartelson J., A Genealogy of Sovereignty, Cambridge: Cambridge University Press, 1995 Lazowski A., ‘Constitutional Tribunal on the Surrender of Polish Citizens Under the European Arrest Warrant. Decision of 27 April 2005’, EuConst., 2005 Murray CJ: was critical “ the somewhat vague language and curious construction” of the framework – balancing due process with welfare values/objectives. Ian Bailey “Fair or Foul? The European arrest warrant justice sans frontier an instrument open to abuse- The executive force of community law cannot fluctuate from one state to another in deference to subsequent domestic laws; could this be defined as restorative justice or just simply obscured justice. Julian Assange v Swedish Prosecution Authority [2012] UKSC 22 :On appeal from: [2011] EWHC Admin 2849 cases C-187/01 and C-385/01 GA¶zA¼tok and Brugge ECR [2003] I-1354. Forde, Michael; Kelly, Kieran (2011).Extradition Law and Transnational Criminal Procedure(4th ed.). Roundhall. p.18 Marianne L. Wade: Judicial control: the CJEU and the future of Eurojust : file:///C:/Users/adminuser/Downloads/Eurojust%20-%20Wade%20Article.pdf Extradition and the European Arrest Warrant – Recent Developments: file:///C:/Users/adminuser/Downloads/Extradition%20and%20EAW%20-%20Home%20Office%20(1).pdf A REVIEW OF THE UNITED KINGDOM’S -EXTRADITION ARRANGEMENTS: file:///C:/Users/adminuser/Downloads/Review%20of%20Extradition%20Arrangements%20UK.pdf Professor Dermot P Walsh “An Emerging EU Criminal Process?” file:///C:/Users/adminuser/Downloads/EU%20Criminal%20Process%20Article.pdf 1

[1] 2002/584/JHA of 13 June 2002 [2] Forde, Michael; Kelly, Kieran (2011).Extradition Law and Transnational Criminal Procedure(4th ed.). Roundhall. p.18 [3] Rajan M.S., UN and Domestic Jurisdiction, Orient Longmans, Bombay, 1958, 6. It is accepted that not all scholars agree that the Peace of Westphalia deserves this status. For a discussion see Krasner S. D., Sovereignty: Organized Hypocrisy, Princeton, NJ: Princeton University Press, 1999 [4] Bartelson J 1996 [5] Ibid [6] Stigmatic punishment is arguably the distinguishing characteristic of criminal Law from other forms of social control and from other branches of law see Clarkson C. M. V., Keating H.M., and Cunnigham S. R., Clarkson and Keating Criminal Law: Text and Materials. 6th ed., London: Sweet & Maxwell, 2007 at p.1. [7] [8] Formal Social Control is a form of social control that is based on rules of behavior that are written down to regulate individuals and there is usually a formal and regulated means of sanction for non-compliance with those rules of behavior see Quinney R. and Trevino A. J., The Social Reality of Crime. 2nd ed., New York: Transaction Puplishers, 2001 at p.6. [9] Wilt H., “Some critical reflections on the process of harmonisation of criminal law within the European Union”, in Klip A. and Wilt H. van der (eds), Harmonisation and Harmonising Measures in Criminal Law, Royal Netherlands Academy of Arts and Sciences, 2002, 77. [10] See for example Perron W., Perspectives of the Harmonisation of Criminal Law and Criminal Procedure in the European Union, in HusabA¸ E. J. and Strandbakken A., Harmonization of Criminal Law in Europe: Series Supranational Criminal Law: Capita Selecta. s.l.: Intersentia, 2005 at p.p.5-6; Kapardis A. and Stefanou E.A., The First Two Years of Fiddling around with the Implementation of the European Arrest Warrant (EAW) in Cyprus, in Guild E. (eds), Constitutional Challenges to the European Arrest Warrant. s.l.: Wolf Legal Publishers, 2006 at p.75. [11] Joined Cases C-187/01 and C-385/01 [12] Sliedregt E. van., The Dual Criminality Requirment, in Keijzer N. and Sliedregt E. van (eds.), The European Arrest Warrant in Practice, The Hague, 2009, p.58. [13] Council Framework Decision 2005/222/JHA of 24 February 2005 on attacks against information systems; Official Journal L 069, 16/03/2005, 67–71 [14] Ibid 9 [15] [2012] UKSC 22 ; On appeal from: [2011] EWHC Admin 2849 [16] Council Framework Decision on the European Arrest Warrant and surrender procedures between Member States of the European Union, of 13 June 2002, OJ L 190, of 18 July 2002 (hereinafter referred to as Framework Decision). [17] C-303/05 – Advocaten voor de Wereld [18] A further preliminary ruling ground brought forward, that is not mentioned in this essay, was “that the subject-matter of the European arrest warrant ought to have been implemented by way of a convention and not by way of a framework decision since, under Article 34(2) (b) EU, framework decisions may be adopted only ‘for the purpose of approximation of the laws and regulations of the Member States’” (Para. 11 and Para 16(1)). Although the European Court of Justice accepted that the European Arrest Warrant could equally have been the subject of a Convention, it took the view that it is within the Council’s discretion to give preference to the legal instrument of the Framework Decision in cases where the conditions governing the adoption of such a measure are satisfied (Para. 41). The Court confirmed that there is no distinction in the third pillar as “to the type of measures which may be adopted on the basis of the subject-matter to which the joint action in the field of criminal cooperation relates” (Para. 36) and that there is no priority between the different instruments mentioned in Article 34(2) TEU (Para. 37). Moreover, it was rejected that the adoption of Framework Decisions must relate only to areas mentioned in Article 31 (1) (e) which provides the basis for criminal law approximation. The Court also rejected that the European Arrest Warrant should have been adopted by a Convention, as it replaced earlier EU extradition Conventions, as this would “risk depriving of its essential effectiveness the Council’s recognised power to adopt framework decisions in fields previously governed by international conventions”(Para. 42) [19] cases C-187/01 and C-385/01 GA¶zA¼tok and Brugge ECR [2003] I-1354.

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