Arrest warrant still in the dock despite ECJ ruling

Last Thursday (3 May) was a special day for one of the most important proposals the EU has ever made in the area of justice and home affairs. After three years of legal proceedings, the European arrest warrant (EAW) was given a clean bill of health by the European Court of Justice (ECJ), which ruled that its provisions did not breach EU law.

The European Commission was clearly delighted with the ruling. "All member states will be able to continue to work with this tool," said a spokesperson, adding: "There is no objection to making use of the tool or its provisions. It’s all absolutely legally sound and secure."

Adopted by the member states nearly five years ago, the arrest warrant speeds up the transfer of suspects across nation borders within the EU by putting a 90-day limit on the execution of the warrant. Sending suspects to other EU states is also much simpler now as the warrant involves filling out a form which requires less information than before.

The contentious point about the arrest warrant is that it removes the principle of "double criminality" for 32 listed offences, which means one member state can send a suspect to another member state even if there exist difference in definitions of crimes between the sending and receiving country or if alleged acts are considered a crime in one state but not in another.

It is on this point that the ECJ case focused. It was originally brought in Belgium by a group of lawyers, Advocaten voor de Wereld, who argued that a suspect should know exactly what charge he or she was facing.

The court’s verdict was clear: the point of the arrest warrant was not to harmonise EU criminal law so that all crimes and definitions of them are the same. It added that "in light of the high degree of trust and solidarity between member states", transfers of suspects for serious crimes can take place.

Wouter van Ballegooij of the TMC Asser Instituut in the Netherlands, which runs a research project on the arrest warrant, said that the ruling would not leave judges much room for manoeuvre when it comes to difficult cases. He said that judges asked to execute an arrest warrant might want to check the facts of a case if there was concern about the type of crime a suspect is facing. With various legal systems throughout the EU, the difference between murder and manslaughter, what constitutes cyber-crime or terrorism and whether denying the Holocaust is a violation of public order are contentious issues.

Hugo Brady, research fellow at the Centre for European Reform, said: "We haven’t been overwhelmed by cases involving foreign judges seeking transfers for bizarre things but that is always a risk." A judge might also be concerned about a suspect’s health and not want to allow a transfer to another state, added van Ballegooij. "I think they went too far in not giving judges the ability to make their own assessment," he said.

Others also take issue with the ECJ’s reliance on mutual trust between member states as a reason for upholding the removal of "double criminality".

Han Jahae, chairman of the European Criminal Bar Association, said:

"We cannot agree that there is a high degree of trust and solidarity - the so-called mutual trust that underpins this mutual recognition.

"The stories told by European defence lawyers at our annual meeting last week raise horror stories of cases where there was no, or delayed, legal advice, no interpreter, no legal aid, trials in abstentia and foreigner suspects being kept on remand and not given bail," he added.

EU justice ministers failed recently to agree on a proposal to set minimum standards for suspects, which the Commission has been pushing for years. Some see hypocrisy in agreeing the European arrest warrant to make transfers of suspects easier and quicker and yet failing to bring in even basic rights for suspects. "Trust has to be built on certain things and this seems hard to reach if the member states can’t even agree when someone should be able to access a lawyer," said van Ballegooij.

Commission officials argue that the arrest warrant is working, with 6,900 warrants issued in 2005 and 95% of transfers carried out within the 90-day limit. But national courts have ruled on the arrest warrant and will continue to do so. A German constitutional court ruling in 2005 threw the entire proposal into doubt. Last Thursday’s judgement is not expected to be that the arrest warrant will be brought before a court. "The arrest warrant may be working but the rest of the legal programme is not," said van Ballegooij. "It’s not a small thing to send someone to another country and try them."

Last Thursday (3 May) was a special day for one of the most important proposals the EU has ever made in the area of justice and home affairs. After three years of legal proceedings, the European arrest warrant (EAW) was given a clean bill of health by the European Court of Justice (ECJ), which ruled that its provisions did not breach EU law.

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