It is a simplified cross-border judicial surrender method, and has replaced the lengthy extradition procedures that used to exist between member states.
Member state country evaluation reports suggest that the number of EAWs issued has increased from approximately 3,000 in 2004 to 15,200 in 2009, but dropped back to 10,400 in 2013.
[10] The political decision to adopt the EAW legislation was made at the Laeken European Council in December 2001, the text being finally agreed in June of the following year.
[11] Framework decisions were legal instruments of the third pillar of the European Community akin to directives and only take effect when implemented by EU member states by transposing them into their domestic law.
The EAW Framework Decision came into force on 1 January 2004 in eight member states, namely Belgium, Denmark, Finland, Ireland, Portugal, Spain, Sweden, and the United Kingdom.
When the UK exercised its opt-out from the area of freedom, security and justice in 2014, its request to continue participating in the EAW was approved.
[15] There are several features of the European Arrest Warrant which distinguish it from the treaties and arrangements which previously governed extradition between EU member states.
The categories within which are as follows: The Framework Decision is silent as to whether secondary participation in, or an attempt to commit, an offence of the kind listed here itself excluded from the requirement for correspondence.
Prior to the adoption of the EAW Framework Decision in 2002, 11 of the then 15 member states – namely Austria,[17] Belgium,[18] Denmark,[19] Finland,[19] France,[20] Germany,[20] Greece,[20] Luxembourg,[20] Portugal,[20] and Sweden[19] — had domestic rules which prevented the extradition of their nationals.
[19] In addition seven of the 12 member states which joined between 2004 and 2007 – namely Bulgaria,[21] Cyprus,[20] the Czech Republic, Latvia, Lithuania,[20] Poland,[20] and Slovenia – employed a similar prohibition prior to their accession.
This has the effect of re-introducing the double-criminality requirement for Dutch nationals and permanent residents, as the conversion of a sentence imposed in an issuing state could not be converted into a comparable sentence by a Dutch court if the conduct constituting the criminal offence in the issuing state does not constitute a criminal offence in the Netherlands.
[22][23] The EAW Framework Decision sets out the reasons by which the executing judicial authority must or may refuse to surrender a person subject to an arrest warrant.
Some countries also consider the risks of possible human rights violations, such as inadequate conditions of detention or lack of fair trial guarantees in the issuing state.
Recital (13) No person should be removed, expelled or extradited to a State where there is a serious risk that he or she would be subjected to the death penalty, torture or other inhuman or degrading treatment or punishment.
This Framework Decision shall not have the effect of modifying the obligation to respect fundamental rights and fundamental legal principles as enshrined in Article 6 of the Treaty on European Union.In 2006, 20 of the then 25 member states included text which was based on at least one of these provisions or which explicitly referred to the European Convention on Human Rights, in their domestic implementing legislation.
[32] In Assange v Swedish Prosecution Authority the High Court of England and Wales found that: [...] it cannot be said that the term judicial applies only to a judge who adjudicates.
The position in some other Member States is different [...][33]On appeal, the UK's Supreme Court affirmed the decision of the High Court and found that, when comparing different language versions, the framework decision demonstrated an intention to regard public prosecutors as judicial authorities and that the conduct of the member states since its enactment confirmed this interpretation.
The Framework Decision also provides that the requested person have the right to the assistance of legal counsel and to an interpreter "in accordance with the national law of the executing Member State".
Where a requested person refuses to consent to his or her surrender, the executing judicial authority should make a final decision within 60 days of the arrest.
By default the principle of 'specialty' applies to all persons surrendered pursuant to a European Arrest Warrant unless the executing judicial authority indicates otherwise.
[36] In the UK, persons arrested under an EAW have been extradited for minor offences such as the stealing of ten chickens (Romania), unintentionally receiving a stolen mobile phone (Poland), and theft of £20 worth of petrol (Czech Republic).
[45] However, the requirement that the person have "fled" the requesting jurisdiction has since been removed from Irish law, and a new warrant has been issued by the Hungarian authorities.
[46] In the case of Carles Puigdemont (alleged to have committed sedition by Spanish authorities in connection with the 2017 Catalan independence referendum), some MEPs and legal commentators criticised the Spanish Government for appearing to have opportunistically issued and withdrawn his European Arrest Warrant based on the likelihood of its success in different EU member states Puigdemont was travelling through.