EU arrest warrant needs urgent reform
By Libby Clarke
The European Arrest Warrant (EAW), the "flagship" measure of EU judicial co-operation, has helped to catch people who exploit Europe’s open borders to flee justice.
But it does not always work as intended.
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The challenge facing the EU institutions is how to address the shortcomings without undermining its effectiveness.
After years of calls for reform, the European Parliament, under the rapporteurship of British Liberal MEP Sarah Ludford, is about to do a legislative initiative report.
It should be welcomed by the assembly, which had no decision-making role back when the EAW was adopted in pre-Lisbon-Treaty times.
For her part, Ludford said she will look to "issues of proportionality and observance of human rights." She added: "I hope that thereby British participation in EU criminal justice issues can be ensured for the future.”
The flaws of the EAW are well known.
Proportionality problems arise from the use of the EAW - particularly by member states which acceded in 2004 and 2008 - for minor crimes because prosecutors are obliged to do so under national law.
An Irish judge at an experts’ meeting in 2009 estimated the average cost of execution of an EAW is €25,000, with confidence in the mechanism eroding each time its is set in motion for a petty offence.
There can also be a painful human impact: Natalia Gorczowska, for instance, was ordered to be extradited to Poland on her baby son’s first birthday, leaving him to be taken into the care of social services, when Poland sought her extradition for possession of 4g of amphetamines six years previously.
It was averted after an application to the European Court of Human Rights (ECtHR), but in many other cases people were not so lucky.
Human rights and detention conditions have also undermined the EAW.
The case of Andrew Symeou highlights the problem.
Following the death of a man at a nightclub in Greece, police coerced his friends into giving evidence against Symeou, which they later withdrew.
The Greek authorities refused to use mutual legal assistance measures, which would have enabled them to clear up the matter, but instead sought Symeou’s extradition by an EAW and the British courts, faithful to the EU scheme, ordered his handover.
Symeou then spent a year in appalling conditions in pre-trial detention, unable to get bail because he was not resident in Greece.
Two years after his extradition, he was eventually acquitted.
The problem lies in the assumption, on which the EAW is founded, that all member states have the same basic standards in their judicial and prison systems.
It is not the case: The European Court of Human Rights has recently issued "pilot judgments" finding systematic human rights infringements in Italy, Lithuania and Poland in relation to prison conditions.
Meanwhile, a study by Fair Trials International revealed that in 2007-2012, Bulgaria violated Article 5 of the European Convention on Human Rights (the right to liberty) 37 times, while Greece was responsible for 93 violations of Article 6 in criminal cases.
Just three years ago, there was not even a common understanding on basic standards: Following the ECtHR’s decision in the "Salduz" case, requiring access to a lawyer in police interrogations, national courts found the Scottish and French police interrogation regimes unlawful, leading to urgent reforms.
The European Union has recognised the need for a clearer framework of shared standards.
It has also begun to create one with a new "Roadmap" and with recently-adopted directives on the right to interpretation and translation and the right to information in criminal proceedings.
Member States also gave the green light to a third providing for the right to a lawyer at all stages of criminal proceedings.
In addition, the Council has adopted the European Supervision Order, which could help people like Symeou, extradited too early under the EAW, to return home on conditional release to continue their lives pending trial.
But the Roadmap and other measures can only mitigate the problems with the EAW; to solve them, further reforms need to be considered.
The EAW's operational flaws have been at the centre of discussions surrounding the United Kingdom’s potential opt-out from the whole EU police and judicial co-operation framework in 2014.
It is clear that no panacea will come from the Court of Justice of the EU (CJEU).
Despite the efforts of its advocate general, Eleanor Sharpston, to tempt the CJEU into addressing the human rights issues in the recent "Radu" case, the CJEU declined to do so.
In fact, its subsequent judgments in "Jeremy F" and "Melloni" indicate that EU countries have limited scope to unilaterally apply their own national protections, placing a clear responsibility on EU institutions to agree EU-wide safeguards on the EAW which are enshrined in law.
Ludford's report for the civil liberties committee in the European Parliament is an attempt to grab the bull by the horns.
With first-hand knowledge of the issues - she supported Symeou during his ordeal - and having been rapporteur on the first of the Roadmap measures, she is well-placed to steer the initiative.
Her stewardship of the file may also give the United Kingdom confidence that EAW reform is on the horizon as it ponders its 2014 opt-out decision.
Indeed, the initiative promises to build a valuable consensus within the European Parliament.
At the time the EAW was adopted, the discussions in the European Parliament touched on proportionality and human rights. However, because its input was only advisory at the time, it could not insist on the inclusion of such safeguards in the final instrument.
Historically, there have been fears that re-opening the EAW would lead to diluting its effectiveness.
However, there is a growing recognition that its flaws are too serious to ignore.
The task for the European Parliament now is to preserve the EAW's best aspects while reinstating fundamental rights to their rightful place at the heart of EU co-operation.
Libby Clarke is head of law reform at the UK-based NGO, Fair Trials International