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The European arrest warrant from the perspective of a German defence attorney*

01 July 2003

"It starts with false labelling: the European arrest warrant was a component of the big bluff
package called "Antiterrorism-Roadmap", containing the anti-terrorism measures on
European level in the aftermath of September 11th, 2001. True, the vague category of
terrorism is one of the 32 criminal offences listed in the framework decision, where the
European arrest warrant should replace the present extradition procedures. The majority of
those 32 criminal offences range into the field of more or less serious everyday delinquency
that usually has nothing to do with terrorism, regardless of its definition. According to the
framework decision the European arrest warrant is supposed to represent "the first concrete
measure [in the field of criminal law] implementing the principle of mutual recognition which
the European Council referred to as the 'cornerstone' of judicial cooperation". Well, one is
glad to hear that European prosecution und judicial authorities place so much confidence in
each other, lending national decisions more and more mutual recognition.

In view of the aforesaid false labelling however, the question arises how far can citizens, civil
rights organisations and the European lawyers put their trust into the European arrest
warrant. I'd like to divide my -due to the time - brief and rather general analysis into four
steps:

1. A short explanatory note regarding the general development within the third pillar
2. Criticism of the framework decision on the European arrest warrant
3. Criticism of the German of implementation law of the European arrest warrant
4. Conclusions

1. Regarding the general development within the third pillar

First of all an adjustment: we are not talking here about the criminal law being europeanized
(that is not an intrinsic value anyhow), but about the national criminal law being executed
Europe-wide. Europe constitutes itself increasingly as a unitary criminal geographic region.
Currently this signifies an increasing trans-national/trans-border criminal prosecution in
Europe from the perspective of the accused/defendants and defence attorneys, a permanent
expansion of the authorities of prosecutors without an adjustment on the level of protection
of fundamental rights and freedoms and procedural safeguards. The executive dominance
within the policy of the "Third Pillar" seems to transform into the dominance of national and
European law enforcement authorities within the trans-national criminal trials. As a result, the
architecture of criminal prosecution as a fair trial and the equality of arms as a whole are
threatened to be destroyed.

From the perspective of a defence attorney, the reality of national criminal proceedings is
anything but idyllic: increasing criminalization in the substantive criminal law, more severe
penalties, more authorities for the police and the dissolution of borders between police and
secret service activities threaten to expand the predominance of the prosecutors. An
essentially democratic public, organised defence attorneys as well as decade-long
altercations between defence, judges and public prosecutors see to the defence attorneys
getting at least a chance. At any rate, within the national states the daily fight for fair
proceedings is taking place. On a European level however, actors, taking a stand for the
fundamental principles of criminal proceedings and the rights of the accused and the
defence, are scarce: a European democratic public does not exist, there are only a few
lawyers' and civil rights organisation on a European level. Neither appears the defence as a
constitutional and procedural principle in the drafts of the European commission and the
European Council, nor are defender