Dsicuss about the Criminal Justice Measures Of European Union.
This essay aims to highlight the lessons that may be learned from the implementation and the operations of the European Arrest Warrant. It will also take into consideration the impact of he European Arrest warrant on the other EU criminal justice measures.
The European Arrest Warrant can be defined as an arrest warrant which is valid in the member states of the European Union[1]. Upon the issue of the European Arrest Warrant the member states of the European Union are required to arrest the suspect of the criminal activity and transfer such suspect to the state from which the arrest warrant was issued. As opined by [2] the objective of the European arrest warrant is to ensure that the accused person faces trail and complete the period of detention in the state from which such arrest warrant had been issued. A European arrest warrant can only be issued for the purpose of conducting a criminal prosecution and to enforce a sentence of custody. It can be mentioned that a European Arrest warrant can only be issued for criminal offenses which have a maximum penalty of one year prison sentence. It can be said that the European arrest warrant was introduced so that the ease and speed of extradition of suspects of criminal activities are enhanced and the pressure of the administrative and political decision making bodies in charge of extradition treaties is removed[3]. The European Arrest warrant aims to convert the entire system of extradition and bring it directly under the jurisdiction of the judiciary.
The European Union had introduced two treaties back in the mid 1990s upon the demand of the members of the Union who had aimed for harmonizing the extradition procedure. The treaties had been instituted under the Maastricht Treaty for the purpose of streamlining the extradition procedures that had already been existing under the e European Convention on Extradition[4]. However, immediately after the 9/11 attacks in the United States the requirement to introduce a uniform arrest warrant which was applicable in all the member nations of the European Union was felt and proposals for the introduction of the European arrest warrant had been mooted. Though the European arrest warrant had originally been issued to bring actions against terrorists, it later became applicable to wide range of crimes.
The 1957 European Convention on Extradition (ECE) [5]which governed the procedures of extradition of suspects across the member nations of the European Union and the legal instruments that had been adopted for guiding the extradition process was replaced by the European arrest warrant It can be mentioned that the European arrest warrant has several distinct features which distinguishes it from other arrangements and treaties that had been enacted earlier which governed the rules of extradition between the members states of the European Union[6]. The European Arrest warrant can be issued for a wide variety of offenses. The offense for which the arrest warrant had been issued does not need to correspond to an offense under the law of the state in which the suspect has south refuge[7]. The European arrest warrant has complete authority over political, revenue, military offenses and cannot be refused to be executed by any member nation. Thus European Arrest warrant mandates the member states of the Union to surrender the its own nationals to the state that issues the arrest warrant[8]. The concept of Double criminality can be defined to be a distinct characteristic or feature of the international extradition law which is denied by the European Arrest warrant. The concept of double criminality states that it is permissible to extradite suspects of criminal activities if the conduct of such suspects is considered to be a criminal offense in the state from which the extradition is being demanded[9]. The following are the offenses for which extradition of suspects can be demanded rejecting the principle of double criminality under the European Arrest Warrant frame work decision:
According to[10] that members of the European Union are allowed to refuse extradition of the nationals under the Framework decision if prosecution of such nationals is being carried on in their nations, however, such nations are obligated to surrender their nationals after their ultimate sentence is imposed.
The rationale for implementing the European Arrest Warrant was to promote free movement of people who were suspected of criminal activities across the borders of the different member states of the European Union and prevent criminals from evading justice by escaping to other countries[11]. It has been asserted by many that the European Arrest warrant had been successful in reducing the burden of the administration to extradite criminals and increasing the seed of such extradition process. According to the reports of the government of United Kingdom, the extradition process post the adoption of the European arrest warrant takes on an average three months to complete the process of extradition where as for non EU nation the process of extradition takes on an average a time period of at least ten months[12]. One of the notable cases that has been cited by the Association of Chief Police Officers (ACPO)[13] that highlighted the effectiveness of the European arrest warrant is that of Jason Mackay. He had been initially convicted of manslaughter of his girlfriend, Michelle Creed. Jason Mackay had fled to polland after the commission of the crime. He handed himself over to the police in Warsaw Police station and was sent back to the United Kingdom immediately and was presented before the court within a tie period of four weeks. Another case which has portrayed the European Arrest warrant in good light was that of Mark Lilley. He had been arrested and was extradited back from Spain. Mark Lilley was one of the 51 fugitives who were arrested as a part of the National Crime Agency’s Operation Captura.
It can be stated that Spain was considered to be a safe haven from criminals to hide in prior to implementation of the European arrest warrant. However the extradition of these criminals is in stark contrast with the extraditions that had been done under previous arrangements. The extradition of Algerian Rachid Ramada who was based in UK and wanted for the Paris metro bombings in 1995 took ten years under the previous arrangements.
He home secretary stated in a debate on 15th July that after four years of successful implementation of the European arrest warrant, the EAW had been successful in extraditing 5 suspects for child sex offenses, 105 suspects for murder and the 86 for rape. However during the same period 27 suspected rapists, 63 child sex offenders and 44 suspected murderers ad been extradited back to the United Kingdom[14]. It had been argued by the home secretary that the successful extradition of such suspects would not have been possible without the European arrest warrant and even if such extradition had been possible it would have taken a much longer time. The European arrest warrant benefits both the victims ensuring him rapid justice and also those who consent to the process of extradition. The process of quick extradition saves months of pre-trail detention of the victims. The European Arrest warrant has facilitated the functions of the Europol. According to the reports of Europol, it can be stated that there has been rapid increase in internationalization of crime as it is facilitated by technology[15]. Further the reports of the Europol has highlighted the presence of travelling criminal gangs who travel in low cost airlines for committing the crime another country and return to their home nation before getting caught. Such criminal gangs have been traced to be based in Eastern European countries of Bulgaria and Romania. It has been assumed by Europol one of the other criminal justice measures of the European Union that the European arrest warrant could be instrumental in tackling such new forms of crime.
It can be said that although the European Arrest Warrant aims to facilitate the extradition process and ensure rapid justice to the victims and the suspects, a number of flaws of the European arrest warrant have been identified which come at a heavy price to those who have experienced injustice due to the new arrangements[16]. The case of Andrew Symeou can be cited as an example which highlights the flaws of EAW. Andrew had been accused of murder of a man in a Greek island. He had been extradited to Greece without substantial evidence.
Al the evidences and the charges on his name had been llgedly acquired by the police by exerting violence on the witnesses and intimidating such witnesses. However the witnesses later retraced their testimonies. Andrew Symeu spent eleven months in prison in inhuman and distressing conditions after which he was released on bail. Ho ever he was not allowed to leave the country until the court of Greece cleared him of all the charges. Another example that can be given as an argument against European Arrest warrant is the case of Garry Mann. Gar Mann was fisherman who had been arrested in Portugal during the football tournament of Euro 2004 when a riot had broken out in the area from which he was arrested. He had been arrested and convicted in twenty four hours ad was charged with football hooliganism. He had been unable to appoint a lawyer and participate in court proceeding due to inability to understand the language. Gary Mann had been informed by the Portuguese authority that his sentence would be suspended if agreed to be deported to his home nation to which he gave his consent.
However, later in 2009 a European arrest warrant had been issued against his name and thus he was extradited to Portugal where he had to serve a two years prison sentence. The lawyer of Gary Mann had failed to lodge an appeal on time and thus unable to prevent his extradition. Therefore, Gary Mann was forced to serve a one year prison sentence in Portugal after which he was transferred to Wandsworth prison in United Kingdom by a prison transfer agreement.
It can be said that the cases of Gary and Andrew are not isolated cases or unique cases, many British Citizens have also suffered injustices like the aforementioned victims. It has been argued by the Home secretaries that in cases when the agreements of extradition go wrong they have adverse and detrimental effects on the human rights and civil liberties of individuals[17]. One of the major drawbacks of the European Arrest Warrant is that it is an instrument of mutual cooperation which is said to be based on the principle of recognition mutually. Thus it can be said that if one of the member states of the European Union decides to extradite a suspect to face trial or serve a sentence such directive of extradition will be binding upon the other member states[18]. However one of the major difficulties in giving effect to the European Arrest Warrant is that the justice system in the different member states varies significantly. It can be said that one of the main problems to give effect to the EAW is that in many of the member nations of the European Union the use of European arrest warrant is at a preliminary stage[19]. As opposed to United Kingdom the EAW is issued when it the case is ready for prosecution, however in some of the member states a EAW is sought for questioning whether to place a charge on the suspect or not before the case ready for trial in the court. Suspects and accused persons who are non national find it difficult to obtain bail as they are held to be more likely to flee the country. Some of the countries of the European Union have not specified a maximum length for the detention of the suspects.
One of the other ways in which the criminal justice systems vary in different countries of the European Union is the application of a proportionality test which is used to assess whether to prosecute the suspects or not.
It can be said that the Home office is the head of 25 other police and criminal justice measures in addition to the European Arrest warrant which the government of United Kingdom proposes to opt. Europol is on the notable European Criminal justice measures. The United Kingdom government decided to opt back 35 of the measures of criminal justice as proposed in the treaty of Maastricht and Lisbon which were considered being in the best interest of UK[20]. The United Kingdom has been allowed to opt back 29 of the non Schengen measures immediately which include Europol, European arrest warrant and Eurojust. However the participation of United Kingdom in European Criminal measures has posed significant challenges to coherence of human rights and European Union Law..
The European Police Office had been established by the Maastricht Treaty. The European Police Office also known as Europol had become fully functioning in the year 1999. The role of Europol is to support authorities of the member states of the European Union which were in charge law enforcement, to fight terrorism and combat serious and organized crime within the European Union[21]. Criminal acts such as trafficking of human being, trafficking illicit drugs, smuggling illegal weapons and individuals with the territory of the European Union, financial and cyber crime all fall under the purview of the Europol[22]. In November 2014, the government of the United Kingdom had made the decision to opt back some of the EU treaties that it had decided to opt out. The headquarters of Europol is located in Hague, Netherlands. Europol has a total of 800 staff out of which 70 staff is British nationals. The Director General of the Europol is also Rob Wainright is aso a British Citizen. It can be stated that Europol does not have the authority of to arrest individuals like the police force[23]. It can only assist national law enforcements by analyzing, gathering and disseminating information. It also aims to coordinate operations of the different law enforcement agencies. The contribution of the services and intelligence of Europol has resulted in 13500 convictions across different member nations of the European Union every year. The Office has notified that Europol has contributed significantly in fighting organized crimes across different states of the European Union. The examples of such contribution of the Europol in fighting crime has been presented in a recent rescue operation which was led by the UK’s Centre for Child Exploitation and Online Protection (CEOP)[24] and which involved the efforts and cooperation of more than 12 different countries. Europol in the aforementioned operation contributed significantly to the operation by providing vital information which was retrieved by hacking into a computer server. Europol in the process had revealed the identities of those who had been involved in the child sex racket. This operation was hugely successful as it rescued more than 230 children worldwide. More than 180 of the offenders were arrested out of which 60 of the offenders were from UK.
Europol can be defined as a dominant form of cooperation that between the law enforcement authorities of the member states of the European Union. Europol was formed with the objective to enhance the efficiency of the law enforcement authorities of the member countries of the European Union to prevent organized and serious crimes which are categorized as international crimes and in which two or more member states are adversely affected by such crimes[25]. Europol promotes joint coordination of the member states and makes such member states take joint action of against international crimes. Europol provides expert technical advice to the law enforcement agencies of the member nations in carrying out investigations.
The main goal of Europol is to improve the efficiency and the operations of the prosecution services of the European Union member nations by allowing them to fight organized crime and terrorism in an effective manner[26]. In light of the aforementioned statement it can be said that the main activities of Europol include:
The European Arrest warrant has also facilitated the operations of the Europol. The European Arrest warrant has made it easier for the suspects of criminal activities to be extradited to the nations which issue such arrest warrant and thus has helped the law enforcement agencies and Europol to reduce organized and international crimes.
Eurojust can be considered to be one of the other criminal justice measures which were adopted by the European Union[27]. Eurojust is a body of the European Union that is responsible and has the obligation of maintaining judicial cooperation between the member states of the European Union. The Eurojust was first established in the year 2002. The role of Eurojust includes improvement of coordination of prosecutions and investigation and provides assistance to prosecutions and investigations upon the request of the member nations[28]. Eurojust is comprised of teams of judges, prosecutors and investigative officers from each of the member states. The primary works of the Eurojust include:
Joint investigative teams allow the police forces of two or more nations to cooperate and form a team to conduct criminal investigations in the member states. It can be said that the use of Joint Investigative Teams reduce the load of lengthy investigations that are carried out by the member states. It can be said that the work load of Eurojust has gradually increased over the years after its formation. It can be said that the Eurojust till date continues to play an important role in the application European arrest warrant. The cases related to European Arrest Warrant which are registered in Eurojust have been ever increasing. Along with the daily operations of Eurojust, regular meetings are held by the Eurojust’s judicial cooperation and Instrument team. The cases related to the European Arrest warrant are discussed in such meetings[30]. These meetings aim to identify the possible difficulties and the possible solutions of EAW cases.
According to article 15(2) of the Framework Decision on European Arrest warrant and Surrender procedures it can be stated that if it is found by the executing judicial authority that whatever information has been provided by the member state which has issued the warrant is insufficient, the executing judicial authority will have the right to ask such member nation of supplementary information. In most of the EAW cases, which were further assisted by Eurojust, it has been argued by the executing authorities that some information had been missing in the filing of the EAW. It has also been argued by many executing authorities that the information filed while issuing the EAW was in accurate[31]. The elements that are requested for additional information in accordance with article 8 of the (EAW FD) are[32]:
In many cases the national authorities in charge of executing the EAW has pointed out the discrepancies existing between list of offenses presented in the Framework and the actual description of the offenses[36]. Such National Authorities have enquired whether the national authorities in charge of issuance of the EAW have relied on Article 2(2) of the EAW FD. The national authorities have pointed out in many cases the discrepancies existing between number of boxes of List offences that were ticked and the actual description of such offenses. In many cases the discrepancies can be justified by the differences of the legal systems of the member states. However in other cases such discrepancies were considered incorrect and rectified.
In several cases the National Authorities in charge of execution of EAW have demanded the relevant criminal provision of the offence committed by the suspected person s defined in the criminal code of the EAW issuing authority. A translated copy of the criminal code of the EAW issuing authority has also been demanded by the executing national authorities in several instances.
It can be stated that in many cases the EAW had not been recognized and by the executing authorities. The grounds of non recognition of the EAW are enumerated below:
On several occasion the member states in charge of executing the EAW had rejected it and did not extradite the concerned person as the participation of such concerned person in a criminal organization had not been mentioned in the EAW. An EAW is not permitted if the offense an individual is charged off is not mentioned in the warrant; therefore participation in a criminal organization does not constitute a valid ground of extradition[45]. However, the issuing authorities of the EAW had argued that such authorities had relied on the Article 2(2) of the EAW FD, which stated that the ground of dual criminality could not be used as a ground to reject the extradition of any person. However, Eurojust communicated the concerns of the issuing authority of the EAW to the executing authority and had tried find a solution of the dispute.
Thus to conclude, it can be said that a European Arrest Warrant is a special criminal and justice measure which has been implemented in the member nations of the European Union and which aims to reduce the burden of the administrative and political procedure involved in the process of extradition. By the application of European Arrest Warrant any suspect of a criminal activity can be can be extradited to any of the member nations of the European Union. The European Union had introduced two treaties back in the mid 1990s upon the demand of the members of the Union who had aimed for harmonizing the extradition procedure. .The treaties had been instituted under the Maastricht Treaty for the purpose of streamlining the extradition procedures that had already been existing under the European Convention on Extradition.
In 1999 the aforementioned procedures for extradition of criminals were abolished and the and the European Arrest Warrant had been introduced. However after the 9/11 attacks in the United States the need to enforce a procedure for quick extradition of criminals and terrorists had been felt and far reaching proposals of European Arrest Warrant had been mooted. The EAW can be issued for conducting a criminal investigation or to enforce a sentence of custody upon the concerned person. The European arrest warrant aimed to enhance the ease and speed of the extradition procedure for extradition of suspects and accused person across the member nations of the European Union. The rationale for implementing the European Arrest Warrant was to promote free movement of people who were suspected of criminal activities across the borders of the different member states of the European Union and prevent criminals from evading justice by escaping to other countries.
Conclusion
Thus to conclude, it has been asserted by many that the European Arrest warrant had been successful in reducing the burden of the administration to extradite criminals and increasing the seed of such extradition process. Some of the criminal and justice measures that had been implemented by the member nations of the European Union were Europol and Eurojust. The aforementioned measures have been significantly impacted by the European Arrest warrant. The role of Europol is to support authorities of the member states of the European Union which h are in charge of law enforcement, to fight terrorism and combat serious and organized crime within the European Union. Eurojust is a body of the European Union that is responsible and has the obligation of maintaining judicial cooperation between the member states of the European Union.
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[2] Geyer, Florian. “Too different to trust? First experiences with the application of the European arrest warrant.” Security versus Justice?. Routledge, 2016. 125-144.
[3] Klimek, Libor. European arrest warrant. Springer, 2016.
[4] Hong, Mathias. “Human Dignity, Identity Review of the European Arrest Warrant and the Court of Justice as a Listener in the Dialogue of Courts: Solange-III and Aranyosi: BVerfG 15 December 2015, 2 BvR 2735/14, Solange III, and ECJ (Grand Chamber) 5 April 2016, Joined Cases C-404/15 and C-659/15 PPU, Aranyosi and C?ld?raru.” European Constitutional Law Review 12.3 (2016): 549-563.
[5] 1957 European Convention on Extradition (ECE)
[6] Riekmann, Sonja Puntscher. “Security, freedom and accountability: Europol and Frontex.” Security versus Justice?. Routledge, 2016. 35-50.
[7] Mitsilegas, Valsamis, and Fabio Giuffrida. “The Role of EU Agencies in Fighting Transnational Environmental Crime: New Challenges for Eurojust and Europol.” Brill Research Perspectives in Transnational Crime 1.1 (2017): 1-150.
[8] Edelkamp, Suzanne. The socialization of Europol A research on Europol and to what extent Europol tries to socialize its staff into European values and norms according to strategic calculation, normative suasion and role playing. BS thesis. 2016.
[9] Cheung, Benjamin Y., and Steven J. Heine. “The double-edged sword of genetic accounts of criminality: Causal attributions from genetic ascriptions affect legal decision making.” Personality and Social Psychology Bulletin 41.12 (2015): 1723-1738.
[10] Ilbiz, Ethem, Christian Kaunert, and Dimitrios Anagnostakis. “The counterterrorism agreements of Europol with third countries: Data protection and power asymmetry.” Terrorism and Political Violence 29.6 (2017): 967-984.
[11] Jansson, Julia. “Building resilience, demolishing accountability? The role of Europol in counter-terrorism.” Policing and Society (2016): 1-16.
[12] Gless, Sabine, and Thomas Wahl. “A Comparison of the Evolution and Pace of Police and Judicial Cooperation in Criminal Matters: A Race Between Europol and Eurojust?.” (2017): 339-354.
[13] Association of Chief Police Officers (ACPO)
[14] Gless, Sabine, and Thomas Wahl. “A Comparison of the Evolution and Pace of Police and Judicial Cooperation in Criminal Matters: A Race Between Europol and Eurojust?.” (2017): 339-354. Geyer, Florian. “Eurojust—A Cornerstone of the Federal Criminal Justice System in the EU?.” Security versus Justice?. Routledge, 2016. 51-66.
[15] Zarza, Ángeles Gutiérrez. “The Eurojust Draft Regulation: Ten Relevant Points.” Exchange of Information and Data Protection in Cross-border Criminal Proceedings in Europe. Springer, Berlin, Heidelberg, 2015. 181-192.
[16] Cardiff, E. D. C. “Information Guide: Agencies and Decentralised Bodies of the European Union.” European Sources Online 1 (2017).
[17] Hong, Mathias. “Human Dignity, Identity Review of the European Arrest Warrant and the Court of Justice as a Listener in the Dialogue of Courts: Solange-III and Aranyosi: BVerfG 15 December 2015, 2 BvR 2735/14, Solange III, and ECJ (Grand Chamber) 5 April 2016, Joined Cases C-404/15 and C-659/15
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[22] Mitsilegas, Valsamis, and Fabio Giuffrida. “The Role of EU Agencies in Fighting Transnational Environmental Crime: New Challenges for Eurojust and Europol.” Brill Research Perspectives in Transnational Crime 1.1 (2017): 1-150.
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[24] UK’s Centre for Child Exploitation and Online Protection (CEOP)
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[29] Elezi, Myzafer, and Neshet Ngucaj. “EUROJUST Joint Investigation Teams (JIT).” Mediterranean Journal of Social Sciences 5.1 (2014): 103.
[30] Cardiff, E. D. C. “Information Guide: Agencies and Decentralised Bodies of the European Union.” European Sources Online 1 (2017).
[31] Monar, Jörg. “The EU’s growing external role in the AFSJ domain: factors, framework and forms of action.” Cambridge Review of International Affairs 27.1 (2014): 147-166.
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[36] Zarza, Ángeles Gutiérrez. “Eurojust.” Exchange of Information and Data Protection in Cross-border Criminal Proceedings in Europe. Springer, Berlin, Heidelberg, 2015. 57-90.
[37] Geyer, Florian. “Too different to trust? First experiences with the application of the European arrest warrant.” Security versus Justice?. Routledge, 2016. 125-144.
[38] Geyer, Florian. Security versus justice?: police and judicial cooperation in the European Union. Routledge, 2016.
[39] Bures, Oldrich. “EU counterterrorism policy: a paper tiger?.” (2016).
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Discussion
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