European Arrest Warrant limps into force (1)


On 1 January 2004 the European Arrest Warrant (EAW) enters into force between eight of the 15 EU member states. These are:

Belgium
Denmark
Finland
Ireland
Portugal
Spain
Sweden
UK

The other seven member states have failed to meet the implementation deadline of 31 December 2003 laid down in Article 34(1) of the Framework Decision on the EAW. This was formally adopted on 13 June 2002 after being "politically agreed" in December 2001.

Application of the EAW in the UK

The "simplified procedure" in the UK Extradition Act 2003 gives force to the EAW (UK: Extradition Act). A Statutory Instrument laid before Parliament on the 15 December 2003 designates the UK's EAW partners as "schedule 1 countries" under this Act (UK: Statutory Instrument) and a guide to the UK's operation of the EAW rules has been produced for the other EU member states (Council document 15585/03). Those member states that are not yet applying the EAW will continue to use existing EU extradition rules.

The UK is among 12 of the 15 member states to allow for retrospective application of the EAW. These countries will accept and act upon EAWs received after 1 January 2004 even in the alleged offence took place before that date. France, Austria and Italy will continue to use existing extradition rules for offences allegedly committed before 1 January 2004.

Arrest warrants must contain the following information:

- issuing judicial authority
- statement of accusation and intention to prosecute
- particulars of the persons identity
- details of any other warrants issued
- details of the alleged offence(s) including time, place and the laws broken
- possible sentence

There is an Arrest Warrant form in the annex of the Framework Decision (Full-text of:: EAW Framework Decision).

All requests must be in English or accompanied by an English translation and sent to the National Criminal Intelligence Service (NCIS), or the Crown Office where the request concerns Scotland. While international arrest warrants have always been transmitted through police channels, full extradition requests have been made through diplomatic channels. This political "supervision" of extradition requests is abolished for EAW countries. EAWs will be held and transmitted via the Schengen Information System under the existing Article 95 (persons wanted for arrest). The UK and Ireland are not yet participating in the SIS but technical and legislative provisions for their incorporation are being developed.

The legal process

Following the provisional arrest of a suspect under an EAW an initial hearing takes place before a judge within 48 hours. This hearing only considers whether the person named in the warrant is actually the person who has been arrested (habeus corpus) and whether the arrest warrant has been filled in correctly. Additional information from the state that issued the arrest warrant may be requested. The judge also decides on whether the suspect will be bailed and offers him or her the possibility to consent to their extradition.

If the suspect does not consent, a "main hearing" takes place within 21 days. As with existing UK extradition law, the judge may extend this period if the "interests of justice" so require. The major difference between extradition and arrest warrant procedures is that the "hearing" in the latter process does not consider the allegations against the defendant or examine evidence. Instead, the hearing is to satisfy the court that none of the "legal bars to surrender" apply. Under UK law, these are:

(a) If the alleged offence does not constitute an offence for which surrender is possible… [i.e. does not meet the dual cri

 

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