Judicial cooperation between Member States surrendering persons suspected of having committed a criminal offence is essential. This Policy Brief identifies legal gaps, interpretative doubts, and practical challenges that exist when applying the law that established the European Arrest Warrant (EAW) system. It then proposes policy solutions to those issues, including how to achieve the objectives of EU criminal justice law while also upholding EU fundamental rights law and values, including the rule of law with respect to individuals in criminal justice cases.
The key findings show the consequential lack of coherence in applying and implementing the EAW system across Member States due to key terms not having a legal definition and legal concepts, such ‘issuing judicial authority’, ‘effective judicial protection’ and ‘proportionality’ not being explained. Additionally, there is also a lack of understanding about the role of fundamental rights in EAW procedures. Interpretations sometimes differ in diametrically opposing ways with respect to these core EU legal concepts.
Further to requests from national courts which have doubts about such terms and concepts, the Court of Justice of the European Union (CJEU) has provided interpretative rulings and established certain common legal tests on a case-by-case basis. However, the CJEU’s input has only further fragmented an increasingly complex legal framework governing the relevant issues characterising the application of the EAW system. It has established thresholds that are either still vague or that are very close to the automaticity of ‘mutual trust’ at the expense of fundamental rights and the rule of law. This means that there must be a lower level of review of compliance with EU values in criminal justice proceedings.
The resulting picture is that the EAW system is not as simple, swift, and trusty as the original designers intended it to be. There is a suboptimal use of trust between Member States; incoherence and a lack of legal certainty about the scope of applicable EU standards; incomplete protection of the requisite fundamental rights of persons in EAW proceedings; growing tension between European human rights protection mechanisms; and a further erosion of EU Treaty values which lie at the heart of the European Criminal Justice Area.
This Policy Brief is part of the STREAM Project.
