EAWs are issued by a judge or prosecutor in a Member State, to seek the arrest and surrender of a person present in another. It may be issued for a person accused of a serious crime, such as murder, terrorism, or human trafficking, or sentenced to a custodial sentence of at least three years for one of these crimes, or an individual accused of an offence for which the maximum penalty is an at least one-year-long prison sentence, or sentenced to a prison term of at least four months, if the offence exists in both countries.
The European Commission has advised Member States that an assessment of the “proportionality” of using an EAW must be conducted before issuing it, to ensure the EAW is truly necessary and there aren’t other, less harmful legal remedies that could be employed instead. However, once issued, there are very limited grounds on which any country receiving an EAW may refuse to execute it.
The EU makes much of the scheme’s numerous successes in bringing criminals to justice — several terrorists, killers, rapists and robbers, among others, have been caught after taking flight from the states in which they perpetrated their crimes. In one particularly impressive case, a gang of armed robbers were extradited back to Italy from six separate countries.
However, even before its institution, concerns were expressed in many quarters about its ramifications — namely, the potential for abuse, disproportionate allocation, overuse of pre-trial detention, and the lack of harmony between EU member state legal systems and standards. Critics suggest its practical use has done much to validate these anxieties, and throw up many more causes for grievance in the process.
Not at Liberty
Criminal justice watchdog Fair Trials has identified several major human rights problems with EAWs — for example, warrants being issued for minor offences and without proper consideration of whether extradition is proportionate, and people being extradited despite serious and well-founded human rights concerns, such as clear risks of violations of the right to liberty caused by the overuse of pre-trial detention, the right to be free from torture and ill-treatment caused by poor prison conditions across the EU, and the right to a fair trial.
The group has also documented several cases in which judicial decisions not to execute an EAW weren’t respected by the issuing State, resulting in individuals being repeatedly arrested and subject to hearings in other countriesm and people sought under EAWs not being provided with legal representation in issuing states as well as executing states.
Moreover, Fair Trials’ June 2018 report, Beyond Surrender, found EAWs are often used to merely investigate suspects, and prosecute petty crimes — such as driving under the influence of alcohol, drug possession or small theft — with individuals frequently surrendered to face stiff penalties for conduct that would not be punished nearly as harshly (or at all) in the country they were arrested in, and without regard to the impact the surrender will have on an individual’s livelihood, family, and mental or physical health.
The document is rife with examples of families being separated for lengthy periods, suspects unnecessarily held in pre-trial detention outside their countries of residence, and people being surrendered, interviewed and immediately released without being provided the resources necessary to make their way back home.
For instance, a Hungarian farmer was caught by police in Romania cutting down trees in a forest with some friends to give to their families as Christmas trees. The trees were confiscated, statements were taken, and the group was ultimately released. Sometime later however, he was stopped by police in Hungary, and told there was an EAW in his name. He was imprisoned for two months in Hungary before extradition to Romania. Once there, he wasn’t provided with any documents explaining why he’d been arrested or was under investigation, and was not provided with an interpreter. Eventually he was convicted and imprisoned for four years for theft. He remains in jail today, in a heavily overcrowded prison cell.
Similarly, an individual living in the UK who owned and ran a contracting and construction business was charged with fraud in Romania related to the sale of his used car to an acquaintance. He was tried and convicted in absentia without being notified of the trial, and authorities issued an EAW for his arrest to serve his sentence. Romanian authorities claimed he was present at the trial, which wasn’t accepted by UK courts — they nonetheless agreed to extradite him, on the condition he be granted a retrial in Romania. Despite promising to adhere to that arrangement, he was denied a retrial once he surrendered, and imprisoned in a cell with seven others.
In 2016, a Polish woman was extradited from the Netherlands over a 10-year-old arrest for carrying marijuana across Member State borders. In the decade since, she’d made a new life, starting a family and sushi restaurant in the Netherlands — but she was surrendered to her home country, despite being heavily pregnant. She spent quite some time in pre-trial detention, where she gave birth — her infant son would later become sick, and receive poor medical attention. She was subsequently convicted and jailed.
Brussels lawmakers are not unwise to the myriad issues inherent in European Arrest Warrants — in 2014, the European Parliament called on the Commission to reform the EAW, to prevent miscarriages of justice, long periods of pretrial detention and other violations.
However, the Commission didn’t share Parliament’s view, and individual Member States didn’t take heed of the recommendations either — Commissioners merely suggested the process to enact legislation guaranteeing suspects fair trial rights, begun in 2009, would largely resolve the problems.
Fair Trials suggest this isn’t the case — but a meaningful change wouldn’t be difficult to achieve. For one, EAW legislation should be amended to guarantee human rights refusal grounds and proportionality checks, require post-surrender monitoring and reporting, and ensure EAWs are an absolute last resort. Moreover, the watchdog suggested EU criminal law should be strengthened, with legislation guaranteeing meaningful remedies for procedural rights violations and adequate budgetary support for the Directorate General for Justice and Consumers.
“By failing to place human rights at the core of the operation of the EAW, and treating the EAW disproportionately, as a measure of first, and not last resort, EU Member States are forcing people into lengthy pre-trial detention far away from home, exposing people to the risk of inhuman and degrading treatment due to appalling prison conditions, making people lose their jobs and be separated from family, putting people at risk of not having a fair trial, and eroding the trust they place in one-another when they cooperate across borders to fight crime. This in turn is stopping the EAW from operating as the efficient crime fighting tool it was designed to be,” the watchdog conclude.
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