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European Arrest Warrant
„EAW – is there still anything to defend?“
Giuseppe Olivo, Karlsruhe, Germany
As a German Lawyer, I must reflect about the failure of the German
Legislature at the first try to transpose the Framework Decision on the
European Arrest Warrant and the surrender procedures between the Member
States from 2001.
In this first instance in 2004, the Federal Constitutional Court in July
2005 declared the European Arrest Warrant Act unconstitutional and void.
I will not now go in depth about the court judgment in 2005. However that
judgment basically said that the German Legislature ignored the fundamental
right to freedom from extradition in a disproportionate manner because the
legislature has not exhausted the margins afforded to it by the Framework
Decision on the European arrest warrant in such a way that the
implementation of the Framework Decision for incorporation into national law
shows the highest possible consideration in respect of the fundamental right
concerned.
Moreover, the first European Arrest Warrant Act infringed the guarantee of
recourse to a court (Article 19.4 of the Basic Law) because there was no
possibility of challenging the judicial decision that grants extradition.
Hence, the extradition of a German citizen was not possible as long as the
Legislature does not adopt a new Act implementing Article 16.2 sentence 2 of
the Basic Law.
The lawyer’s „battleground“ on the basis of the current EAW from July 2006
in Germany:
Reasons for
refusal:
The surrender of the person can be refused on several grounds (see Arts. 3
and 4 of the Framework Decision) among which: the "ne bis in idem" or double
jeopardy principle. This means that the person will not be returned to the
country that issued the arrest warrant if he or she has already been tried
for the same offence.
Amnesty:
A Member State can refuse to return a person if an amnesty covers the
offence in its national legislation.
The age of the
person:
A Member State can also refuse to return a person who is a minor and has not
reached the age of criminal responsibility under its national laws. It is
also possible for a Member State to execute directly the sentence decided in
another Member State instead of surrendering the person to that Member
State.
Life sentence: Where someone arrested under an EAW may be sentenced to life imprisonment, the state executing the EAW may insist, as a condition of executing the arrest warrant, that if sentenced to life, the accused person will have a right to have its personal situation periodically reconsidered. Death penalty: There is no mention of the death penalty as the death penalty has been abolished in the European Union. Relations with third countries: The European Arrest Warrant only applies within the territory of the EU (15 Member States, and 25 as from 1 May 2004). Relations with third countries are still governed by extradition rules. If a person has been surrendered to another EU country according to the EAW and is afterward demanded by a third country, the Member State which authorized the surrender in the first place shall be consulted. statutory limitation: A Member State can refuse to return a person if the offence is statute barred according to its law (which means that the time limit has been passed and that it is too late under that country's law to prosecute the person). Even the current EAWA from July 2006 represents a sad failure of the Legislature to safeguard the liberties of the individual against unfair action by the Executive. |
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