The European arrest warrant - 2

After a brief introduction dealing with the causes, aims and objectives of the European Arrest Warrant (The Sunday Times, June 6), today we will be analysing some important substantive provisions of the Framework Decision establishing the EAW. Just a few days ago, the French Court of Appeal dropped all proceedings initiated against the Malta Maritime Authority and its executive director Lino Vassallo in connection with the Erika disaster.

The Court of Appeal in Paris ruled that the Malta Maritime Authority was an extension of the Maltese state and therefore the administration of the Malta flag was covered by the Malta state's immunity of jurisdiction. An arrest warrant was about to be issued against MMA chairman Marc Bonello and Mr Vassallo as a result of their absence from court last December.

The EAW may be roughly defined as a warrant for search, arrest, detention and surrender to the judicial authority of the issuing country. It therefore has a dual function, in that it operates as a convention arrest warrant (search, arrest and detention) but also as a request for surrender to the authorities of the issuing state.

However, the four obligations imposed on member states by the EAW do not have the same legal status. The search and arrest functions are binding on the executing state even in the marginal exclusion situations. Yet, the detention of the requested person requires a specific decision by a judicial authority. In the absence of that person's consent, a court order will also be required for surrender to the issuing judicial authority.

The issuing judicial authority will be the one which has the power to issue the EAW in the procedural system of the member state. The executing authority refers to the prosecution service or a judge, depending on the procedure applicable in the member state. But, in any case, it must always be the authority that takes the decision to execute the warrant.

An EAW issued in one of the member states must be executed in accordance with the Framework Decision throughout the EU. It may be issued both for the implementation of an enforceable judgment and at the pre-trial stage.

In the former case, the judgment must be final, definitive and unappealable (res judicata), and can be opposed if it was given in absentia. In the latter case, if a pre-trial order is involved, a custodial sentence must have been passed.

The principle of double criminality has been abolished, thus no longer requiring that the act be a crime both in the requested and the requesting state. Similarly, the EAW must be carried out whatever the amount of the penalty incurred in the executing state.

The offences subject to the EAW are:

¤ participation in a criminal organisation (associazione a delinquere);

¤ terrorism;

¤ trafficking in human beings;

¤ sexual exploitation of children and child pornography;

¤ illicit trafficking in narcotic drugs and psychotropic substances (drug trafficking);

¤ illicit trafficking in weapons, munitions and explosives;

¤ corruption;

¤ fraud including that affecting the financial interests of the European Communities;

¤ laundering of the proceeds of crime (money laundering);

¤ counterfeiting currency;

¤ computer-related crime (computer hacking);

¤ environmental crimes including the illicit trafficking in endangered animal species and in endangered plant species and varieties;

¤ facilitation of an unauthorised entry and residence;

¤ murder and grievous bodily harm;

¤ illicit trade in human organs and tissues;

¤ kidnapping, illegal restraint and hostage-taking;

¤ racism and xenophobia;

¤ organised or armed robbery;

¤ illicit trafficking in cultural goods including antiques and works of art;

¤ swindling (cheating, defrauding money or property);

¤ racketeering (blackmailing traders by intimidation and violence) and extortion (wresting money from a person by force, violence and intimidation);

¤ counterfeiting and piracy of products;

¤ forgery of administrative documents and trafficking therein;

¤ forgery of means of payment (such as government debentures);

¤ illicit trafficking in hormonal substances and other growth promoters;

¤ illicit trafficking in nuclear and radioactive material;

¤ trafficking in stolen vehicles;

¤ rape;

¤ arson;

¤ crimes falling within the jurisdiction of the ICC statute (namely violations of the Geneva Conventions, crimes against humanity and genocide);

¤ unlawful seizure of aircraft and ships;

¤ sabotage.

The EAW may be issued for final judgments in criminal proceedings, and judgments in absentia, which involve deprivation of liberty or a detention order of at least four months in the issuing member state; and other enforceable judicial decisions in criminal proceedings which involve deprivation of liberty and relate to an offence, which is punishable by deprivation of liberty or a detention order for at least one year in the issuing member state.

Procedurally, the EAW is to contain

¤ the identity of the requested person;

¤ the issuing judicial authority;

¤ whether there is a final judgment or any other enforceable judicial decision as explained above;

¤ the nature and legal classification of the offence;

¤ whether the EAW results from a judgment in absentia, and if so, a statement as to the right to lodge an opposition in accordance with the applicable procedure;

¤ a description of the circumstances in which the offence was committed, including the time, place and degree of participation in the offence by the requested person;

¤ the penalty, if there is a final judgment, or else, the prescribed scale of penalty;

¤ if possible, other consequences of the offence;

¤ whether the requested person has already been arrested for the same offence, and let free, or released after some pre-trial detention under condition of return, or whether the person has escaped from prison.

In our next article we will be considering the compatibility, or incompatibility of the EAW with existing human rights standards and provisions.

To be continued