The European arrest warrant (EAW) enables those suspected of criminal offences to be prosecuted and facilitates criminal sentences and custodial orders across the European Union. The Framework Decision (FD) on the EAW placed a strong emphasis on security and fighting impunity from its very inception by facilitating, simplifying, and accelerating extradition among EU Member States’ criminal justice authorities.
The EAW was designed to function on the basis of mutual and quasi-automatic recognition of foreign criminal justice decisions in the area of surrender. An almost unconditional trust is awarded to authorities to systematise a presumption of legality, proportionality, and overall appropriateness of their decisions. Speed, however, is often at the expense of the principles of a fair trial and rule of law. In the almost 20 years that have passed since the entry into force of the FD EAW in 2004, it has become clear that the choice of anchoring the EAW’s functioning on a requirement of mutual trust between EU Member States’ judicial authorities has generated far-reaching constitutional and legal challenges and tensions.
This report analyses how key questions and concerns raised by national judicial authorities on EAW-related matters have been addressed by the Court of Justice of the European Union (CJEU). Issues addressed range from the limits of mutual trust in EAW proceedings; the conditions for issuing an EAW; the ways and extent to which a Member State may monitor their peers’ respect of EU fundamental rights and the rule of law before executing an EAW; and the conditions for putting on hold or refusing surrenders.
The report also offers a critical assessment of the CJEU’s case-law covering state capture, judicial independence and more generally the role of fundamental rights and the rule of law as preconditions for mutual trust in criminal justice mutual recognition instruments. This is combined with a critical appraisal of the scope and effectiveness of other EU institutions, especially the European Commission’s responses to state capture and its current rule of law toolbox of instruments.
It argues that EU responses have been largely insufficient, even though the EU possesses enough tools to respond to systematic rule of law risks and threats in the Member States. The report offers some remedies to the tension between the decline of democracy and the rule of law in some Member States, as well as its repercussions on the functioning of mutual recognition instruments in the areas of Freedom, Security and Justice, such as the FD EAW. More specifically, it provides suggestions on how to resolve or ease the EU’s rule of law challenge in the framework and beyond the FD EAW with the involvement of all EU institutions.
This report has been prepared in the context of the STREAM project.
