Critically assess the legal basis and context of the European arrest warrant

Anne-Sophie G.

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Critically assess the legal basis and context of the European arrest warrant

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In the olden days, Europe was a place where there were fewer barriers economically, politically and socially. Everything moved freely: stocks, goods, people and also criminals. To strike a balance between freedom and security, some measures had to be taken. The framework decision defines "European arrest warrant"(EAW) as "any judicial decision issued by a Member State with a view to the arrest or surrender by another Member State of a requested person". This framework decision links the Member States for the result to obtain but gives the choice of the form and the means to use. The context of this EAW can be understood by "the historical, political or institutional context". In 1999, the Tampere European Council uniting the head of states of the fifteen Member States started the basis of a penal cooperation. But it is only after the 9/11 attacks in the USA that the EAW appeared again as the European Union wanted to show its solidarity with the USA in the fight against terrorism.

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An innovative procedure in comparison with the extradition's procedure but also a procedure showing a lack of guarantees
1. A procedure follows in the mains lines by the member States
2. A procedure less protective of the individual rights than the one of the extradition
Different applications into the European Union
1. An implemented different in each member State
2. The assistances implemented for a better application

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Extraits

[...] This recognition is in order to have a free circulation of penal decisions, have so a full and direct effect on the EU territory. It is based on the reciprocal confidence. Normally a State doesn't give, for the decisions pronounced by another State, effects on its territory, which ensues of the State sovereignty principle. To increase the European penal cooperation, the dual criminality principle had to be cancelled for 32 infractions (according to the article 3 and 4 of the framework decision enumerates the most important infractions list) and for the other offences only the rate of the punishment is take into account in the intern law of the emission state and that must be superior at one year. [...]

[...] Eurojust in a first time is an organisation makes up of fifteen people, created in 1998. It is a supple and effective entity. The States need Eurojust to respect the delays impose at the article 17 of the framework decision, they need an effective cooperation. Eurojust takes into consideration all the circumstances of the matter to give its opinion. Moreover that we can appreciate it is that this opinion is neutral and impartial, to promote the confidence climate necessary at the mutual recognition which is poor in the reality. [...]

[...] The different legislators transposed the text and the judiciary authorities apply it. Some problems appear with the practice, in effect some countries are taken away from the text spirit, for example to the article 3 and 4 transposition of the framework decision concerning the infractions should been cancelled. The European Commission has no action for breach to sanction these failures in the third EU pillar. Moreover, judiciary authorities determinate the scope of the EAW thanks to their more or less restrictive case laws, all the judges don't give the same scope at the warrant, so to favour the national practice drawing closer, the framework decision article 19 provides for a tiers people, emission state member, to intervene at the audience to bring complementary inquiries at the execution's State. [...]

[...] Critically assess the legal basis and context of the European arrest warrant In ours days we tend to have a plain Europe on all points of view, an economic, politic Europe and why not a penal Europe? Everything moves freely: stocks, goods, people but also criminals So to have a balance between freedom and security some measures have to be taken. The framework decision defines “European arrest warrant”(EAW) as judicial decision issued by a Member State with a view to the arrest or surrender by another Member State of a requested person”. [...]

[...] The EAW is a huge advance in the construction of the European penal law and of a free circulation cooperation of the penal decisions. But today, with the retreat and the practice we can see the positive and negative sides of the text. So here the questions are to know in hand what the procedures of the framework decision are. What are its goals? But on the other hand, know how the different contexts interact in the practice, in the implemented of the EAW? [...]

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