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117-593: In considering the European Investigation Order it is important to examine why it exists and the rationale for adding yet another investigative measure to the existing cross-border investigative measures. Prior to the EIO there was Council Framework Decision 2003/577/JHA and this pertained to the mutual recognition of freezing orders for the purpose of securing evidence or subsequent confiscation of property. The issue with this framework decision, however,

234-429: A custodial sentence . It can be issued only for offences carrying a minimum penalty of one year or more in prison. Where the sentence has already been passed, an EAW can be issued only if the prison term to be enforced is at least four months long. Considering the severe consequences an EAW can have, it should always be proportional to its aim. This means that the judicial authority issuing an EAW should always carry out

351-457: A Member State from applying its constitutional rules relating to due process, freedom of association, freedom of the press and freedom of expression in other media. Recital (13) No person should be removed, expelled or extradited to a State where there is a serious risk that he or she would be subjected to the death penalty, torture or other inhuman or degrading treatment or punishment. Article 1(3) This Framework Decision shall not have

468-589: A bond that is not only regional or geographic: a State cannot be party to the European Convention on Human Rights if it is not a member of the Council of Europe; it cannot be a member State of the Council of Europe if it does not respect pluralist democracy, the rule of law and human rights. So a non-democratic State could not participate in the ECHR system: the protection of democracy goes hand in hand with

585-516: A broad interpretation, taking for instance that prohibition of private consensual homosexual acts violates this article. There have been cases discussing consensual familial sexual relationships, and how the criminalisation of this may violate this article. However, the ECHR still allows such familial sexual acts to be criminal. This may be compared to the jurisprudence of the United States Supreme Court, which has also adopted

702-414: A comprehensive system based on mutual recognition for obtaining evidence in cross-border criminal cases. The answer to this fragmentation was thus the EIO. The EIO replaced prior instruments in the area of judicial cooperation in criminal matters, namely Framework Decisions 2003/577/JHA and 2008/978/JHA. The EIO aim is to facilitate and increase efficiency in cross-border criminal investigations by simplifying

819-406: A criminal offence at the time of its commission. The article states that a criminal offence is one under either national or international law, which would permit a party to prosecute someone for a crime which was not illegal under domestic law at the time, so long as it was prohibited by international law . The Article also prohibits a heavier penalty being imposed than was applicable at the time when

936-667: A direct response to twin concerns. First, in the aftermath of the Second World War , the convention, drawing on the inspiration of the Universal Declaration of Human Rights , can be seen as part of a wider response from the Allied powers in delivering a human rights agenda to prevent the most serious human rights violations which had occurred during the Second World War from happening again. Second,

1053-549: A discussion at EU level on the principle of proportionality which is outset in article 5 of the Treaty establishing the European Community and how to take this principle into consideration by judicial authorities when issuing a European arrest warrant. EAWs have been issued for minor offences such as possession of 0.45 grams of cannabis; theft of two car tyres; driving a car under the influence of alcohol, where

1170-427: A divorced parent to his/her child). Notable cases: Article 9 provides a right to freedom of thought , conscience and religion . This includes the freedom to change a religion or belief, and to manifest a religion or belief in worship, teaching, practice and observance, subject to certain restrictions that are "in accordance with law" and "necessary in a democratic society". Relevant cases are: Article 10 provides

1287-504: A final decision within 60 days of the arrest. In 2011 the European Commission reported that the average time for the surrender of persons who consented was 16 days while the average time for those who did not consent was 48.6 days. A state wishing to prosecute a surrendered person for offences committed before his or her surrender, or extradite a surrendered person to a third state, must, subject to certain exception, obtain

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1404-437: A judicial authority pertaining to a criminal offense under the national law of the state issuing the EIO; − Proceedings brought by an administrative authority or; − Proceedings brought by a judicial authority for acts punishable under the national law of the state issuing the EIO where the infringement gives rise to proceedings in front of a court having jurisdiction in criminal matters. − An EIO can be issued in relation to

1521-410: A language they understand, of the reasons for the arrest and any charge they face, the right of prompt access to judicial proceedings to determine the legality of the arrest or detention, to trial within a reasonable time or release pending trial, and the right to compensation in the case of arrest or detention in violation of this article. Article 6 provides a detailed right to a fair trial , including

1638-462: A large scope investigation. Article 21(2) only suggest that Member States may consult how to share the costs or modify the EIO if the former is exceptionally high. There are some human rights challenges as well. Article 1(3) of the directive stipulates that the issuing of an EIO may be requested by a suspect, accused or a lawyer on his behalf. However, not all member states have implemented the directive to allow suspects/accused/their lawyers to request

1755-419: A non-extraditable offence once surrendered, or extradite the surrendered person to a third state for an offence which would not have been extraditable offence from the original executing state. By default the principle of 'specialty' applies to all persons surrendered pursuant to a European Arrest Warrant unless the executing judicial authority indicates otherwise. However this position may be reversed where both

1872-432: A patchwork solution in a fragmented frame of mutual recognition. The main rule under article 21(1) is that the executing state shall bear all the costs of carrying out an EIO for the issuing state. The underlying rationale is that costs operate based on a principle of reciprocity. However, certain countries are in a position where they execute much more EIOs than they issue, and certain countries may be tasked with carrying out

1989-476: A person for whom a European arrest warrant has been issued when there are reasons to believe, on the basis of objective elements, that the said arrest warrant has been issued for the purpose of prosecuting or punishing a person on the grounds of his or her sex, race, religion, ethnic origin, nationality, language, political opinions or sexual orientation, or that that person's position may be prejudiced for any of these reasons. This Framework Decision does not prevent

2106-475: A proportionality check, before deciding on whether to issue it in the first place. Such a check is carried out by considering several factors that can be used to determine whether issuing an EAW is justified. The introduction of the EAW system was intended to increase the speed and ease of extradition throughout EU countries by removing the political and administrative phases of decision-making which had characterised

2223-548: A report to the Assembly proposing a list of rights to be protected, selecting a number from the Universal Declaration of Human Rights that had recently been agreed to in New York, and defining how the enforcing judicial mechanism might operate. After extensive debates, the Assembly sent its final proposal to the council's Committee of Ministers, which convened a group of experts to draft the convention itself. The convention

2340-475: A somewhat broad interpretation of the right to privacy . Furthermore, Article 8 sometimes comprises positive obligations : whereas classical human rights are formulated as prohibiting a state from interfering with rights, and thus not to do something (e.g. not to separate a family under family life protection), the effective enjoyment of such rights may also include an obligation for the state to become active, and to do something (e.g. to enforce access for

2457-487: A state's margin of appreciation . In Vo v France , the court declined to extend the right to life to an unborn child, while stating that "it is neither desirable, nor even possible as matters stand, to answer in the abstract the question whether the unborn child is a person for the purposes of Article 2 of the Convention". The court has ruled that states have three main duties under Article 2: The first paragraph of

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2574-560: A suspect or fugitive, or suppressing riots or insurrections, will not contravene the Article when the use of force involved is "no more than absolutely necessary". Signatory states to the convention can only derogate from the rights contained in Article 2 for deaths which result from lawful acts of war. The European Court of Human Rights did not rule upon the right to life until 1995, when in McCann and Others v United Kingdom it ruled that

2691-406: Is no exception for political , military or revenue offences, and there is no exception clause allowing a state to refuse to surrender its own nationals. Double criminality is a feature of international extradition law by which states may refuse to extradite fugitives if the conduct which is alleged to have constituted a criminal offence in the state requesting extradition would not have resulted in

2808-463: Is no prior recognition or recognition process. Thereby, the enforcing state can be confident that the requesting authority has already verified the legality, necessity and proportionality of the requested measures. Consequently, the principle requires Member States to recognize and execute EIOs from other Member States without re-evaluating the case on its merits. The EIO may be issued in relation to four types of proceedings: − Criminal proceedings by

2925-643: Is required by the Framework Decision to execute the warrant. If the whereabouts of the person sought are known, the EAW may be transmitted directly to the designated central authority of that member state. Otherwise the issuing judicial authority may seek the assistance of the European Judicial Network in circulating the warrant, may seek to issue an alert under the Schengen Information System , or may seek

3042-460: Is silent as to whether secondary participation in, or an attempt to commit, an offence of the kind listed here itself excluded from the requirement for correspondence. Another issue which has arisen is the accuracy of a description of an offence as being in a category exempt from the requirement for correspondence, and whether the executing judicial authority is required to accept the issuing judicial authority's classification as definitive. Prior to

3159-613: The Congress of Europe in The Hague . At the end of the Congress, a declaration and following pledge to create the convention was issued. The second and third articles of the pledge state: "We desire a Charter of Human Rights guaranteeing liberty of thought, assembly and expression as well as right to form a political opposition. We desire a Court of Justice with adequate sanctions for the implementation of this Charter." The convention

3276-575: The United Kingdom . By 1 November 2004, all member states had implemented the legislation except Italy , which did so on 22 April 2005. Bulgaria and Romania implemented the Decision on their accession in 2007. When the UK exercised its opt-out from the area of freedom, security and justice in 2014, its request to continue participating in the EAW was approved. There are several features of

3393-403: The "confrontation clause" of Article 6 (i.e. the right to examine witnesses or have them examined). In this respect, problems of compliance with Article 6 may arise when national laws allow the use in evidence of the testimonies of absent, anonymous and vulnerable witnesses. Article 7 prohibits the retroactive criminalisation of acts and omissions. No person may be punished for an act that was not

3510-787: The 1791 U.S. Bill of Rights , the 1789 French Declaration of the Rights of Man and of the Citizen , or the first part of the German Basic Law . Statements of principle are, from a juridical point of view, not determinative and require and have given occasion to extensive interpretation by courts to bring out meaning in particular factual situations, As amended by Protocol 11, the convention consists of three parts. The main rights and freedoms are contained in Section I, which consists of Articles 2 to 18. Section II (Articles 19 to 51) sets up

3627-472: The 1995 Convention on the Transfer of Sentenced Persons . This has the effect of re-introducing the double-criminality requirement for Dutch nationals and permanent residents, as the conversion of a sentence imposed in an issuing state could not be converted into a comparable sentence by a Dutch court if the conduct constituting the criminal offence in the issuing state does not constitute a criminal offence in

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3744-540: The Advocate General Michal Bobek , who in this case advised that as long as the Bulgarian legislature does not remedy this situation, Bulgaria is in constant breach of fundamental rights and can therefore not take part in the mutual recognition scheme. A further issue concerns the rights of the defence. It is not clear what the consequences are of any illegality in the execution of an EIO for

3861-440: The Council of Ministers noted that EAWs had been issued for such offences as possession of 0.45 grams of cannabis, possession of 3 ecstasy tablets, theft of two car tyres, driving under the influence of alcohol where the limit was not significantly exceeded, and theft of a piglet .. The report concluded that it would be appropriate to have a discussion at EU level on the proportionate issuance of European Arrest Warrants. While

3978-458: The EAW, verification of double criminality is excluded when the EIO concerns a listed offence. An important improvement of the EIO is the express provision that the defendant has the right to request the issuing of an EIO (for example, an EIO for hearing a defence witness in another Member State.) It must be pointed out, however, that EIO cannot be used for cross-border surveillance for the purpose of transfer of criminal proceedings. The inception of

4095-449: The EAW. Such issues meddle with the idea of a high level of mutual trust between judicial authorities and hinder the objectives of the EAW. Article 3 of the Framework Decision which lists grounds upon which executing states must refuse to surrender a requested person does not expressly include any ground for refusing the surrender of a requested person if that surrender would infringe a person's human rights. However recitals (12) and (13) of

4212-579: The ECE such as the 1989 agreement on the simplification of the transmission requests for extradition, the 1995 Convention on simplified extradition procedure, the 1996 Convention on extradition between Member States, and the provisions of the Schengen Agreement regarding extradition. The EAW Framework Decision came into force on 1 January 2004 in eight member states, namely Belgium , Denmark , Finland , Ireland , Portugal , Spain , Sweden , and

4329-523: The EIO has led to somewhat of an uproar in the academic and legal communities. There has been some staple critique that the EIO is a prosecutorial instrument that does not afford a high standard of protection to human rights. Some even went as far as arguing that the EIO’s inception was hasty, as it did not allow for experiences to be drawn from the European Arrest Warrant , and some said it was

4446-508: The EU. The issuing judicial authority must complete a form stating identity and nationality of the person sought, the nature and legal classification of the offence, the circumstances surrounding the alleged committal of the offence including when and where it was committed and the degree of participation of the person sought, and scale of penalties for the offence. Many member states have designated public prosecutors as their judicial authorities for

4563-483: The European Arrest Warrant which distinguish it from the treaties and arrangements which previously governed extradition between EU member states. EAWs are not issued through diplomatic channels, they can be executed for a wide variety of offences without any requirement that the offence to which the warrant relates corresponds to an offence under the law of the state asked to execute the warrant, there

4680-600: The European Commission, which made a formal legislative proposal to Council and Parliament. The political decision to adopt the EAW legislation was made at the Laeken European Council in December 2001, the text being finally agreed in June of the following year. The European Arrest Warrant was established by an EU framework decision in 2002. Framework decisions were legal instruments of the third pillar of

4797-408: The European Community akin to directives and only take effect when implemented by EU member states by transposing them into their domestic law. The European Arrest Warrant replaced the 1957 European Convention on Extradition (ECE) which had previously governed extraditions between most member states, and various legal instruments which had been adopted to streamline the process of extradition under

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4914-467: The Netherlands. The EAW Framework Decision sets out the reasons by which the executing judicial authority must or may refuse to surrender a person subject to an arrest warrant. Many member states have enacted other reasons by which surrender may be refused which are not referred to in the Framework Decision. Under the Framework Decision the executing judicial authority must refuse to surrender

5031-615: The TFEU. Article 82(1) stipulates that judicial cooperation in criminal matters within the European Union shall be based upon the mutual recognition of judgements and judicial decisions. The EIO contained several significant innovations over existing procedures. The EIO focuses on the investigative measure to be executed, rather than on the type of evidence to be gathered. The EIO has a broad scope – all investigative measures are covered, except those explicitly excluded. In principle,

5148-400: The admissible grounds for refusal of the execution of a European Arrest Warrant. Under the 2009 framework decision, an executing judicial authority may refuse to execute a European Arrest Warrant unless the requested person: The 2009 Framework Decision should have been implemented by member states by 28 March 2011. However, even after the amendment, there are still significant issues with

5265-568: The adoption of the EAW Framework Decision in 2002, 11 of the then 15 member states – namely Austria, Belgium, Denmark, Finland, France, Germany, Greece, Luxembourg, Portugal, and Sweden — had domestic rules which prevented the extradition of their nationals. Although the Nordic EU members – Denmark, Finland, and Sweden – did allow the extradition of their nationals to each other and to other Nordic countries, they refused

5382-472: The application of Art. 4a(1). InAbsentiEAW research project has shown that there are significant differences between Member States in the execution as well as issuing of the EAW. The report has analyzed the judicial cooperation between several Member States and has concluded that issues with the application of Art. 4a(1) can cause delays, and extra costs, necessitating executing authorities to request supplementary information or even unjustified refusals to execute

5499-425: The article contains an exception for lawful executions , although this exception has largely been superseded by Protocols 6 and 13. Protocol 6 prohibits the imposition of the death penalty in peacetime, while Protocol 13 extends the prohibition to all circumstances. (For more on Protocols 6 and 13, see below ). The second paragraph of Article 2 provides that death resulting from defending oneself or others, arresting

5616-410: The articles in Section I are structured in two paragraphs: the first sets out a basic right or freedom (such as Article 2(1) – the right to life) but the second contains various exclusions, exceptions or limitations on the basic right (such as Article 2(2) – which excepts certain uses of force leading to death). Article 1 simply binds the signatory parties to secure the rights under the other articles of

5733-534: The chair of the Assembly's Committee on Legal and Administrative Questions, was one of its leading members and guided the drafting of the convention, based on an earlier draft produced by the European Movement . As a prosecutor at the Nuremberg Trials , he had seen first-hand of a binding international court. French former minister and French Resistance fighter Pierre-Henri Teitgen submitted

5850-421: The commission of a criminal offence in the state being asked to effect the extradition. Under the EAW Framework Decision, the requirement for double criminality is removed for a wide range of categories of crimes, and made a discretionary rather than a compulsory ground for a refusal to extradite for offences not falling within those categories. The categories within which are as follows: The Framework Decision

5967-410: The conduct of the member states since its enactment confirmed this interpretation. Unlike traditional extradition arrangements, EAWs need not be transmitted to any particular state. The intent of the Framework Decision is that EAWs be immediately recognised by all member states once issued. When a person subject of an EAW is found within the jurisdiction of a member state and arrested, that member state

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6084-477: The convention "within their jurisdiction". In exceptional cases, "jurisdiction" may not be confined to a contracting state's own national territory; the obligation to secure convention rights then also extends to foreign territories, such as occupied land in which the state exercises effective control. In Loizidou v Turkey , the European Court of Human Rights ruled that jurisdiction of member states to

6201-435: The convention by a state party can take a case to the court. Judgments finding violations are binding on the states concerned and they are obliged to execute them. The Committee of Ministers of the Council of Europe monitors the execution of judgments, particularly to ensure payments awarded by the court appropriately compensate applicants for the damage they have sustained. The convention has sixteen protocols , which amend

6318-406: The convention extended to areas under that state's effective control as a result of military action. Article 2 protects the right of every person to their life. The right to life extends only to human beings, not to animals, nor to "legal persons" such as corporations. In Evans v United Kingdom , the court ruled that the question of whether the right to life extends to a human embryo fell within

6435-511: The convention framework. The convention has had a significant influence on the law in Council of Europe member countries and is widely considered the most effective international treaty for human rights protection. The European Convention on Human Rights has played an important role in the development and awareness of human rights in Europe. The development of a regional system of human rights protections operating across Europe can be seen as

6552-432: The convention have been put forward, for example by former UK Prime Minister Rishi Sunak , and other UK politicians. Conservative politicians have proposed reform or withdrawal from the convention during the 2024 Conservative Party leadership election . The convention is drafted in broad terms, in a similar (albeit more modern) manner to the 1689 Scottish Claim of Right Act 1689 , to the 1689 English Bill of Rights ,

6669-809: The convention itself. Consequently, the convention was principally conceived, at the time of its creation, as an "anti-totalitarian" measure to help stabilise social democracies in Western Europe, rather than as a specific reaction to the legacy of Nazism and the Holocaust. This approach was a continuation of Atlanticist beliefs from World War II and the early Cold War which called for the defence of democracy against all forms of authoritarianism. From 7 to 10 May 1948, politicians including Winston Churchill , François Mitterrand , and Konrad Adenauer , as well as civil society representatives, academics, business leaders, trade unionists, and religious leaders convened

6786-521: The convention was a response to the growth of Stalinism in Central and Eastern Europe and was designed to protect the member states of the Council of Europe from communist subversion. This, in part, explains the constant references to values and principles that are " necessary in a democratic society " throughout the convention, despite the fact that such principles are not in any way defined within

6903-421: The court and its rules of operation. Section III contains various concluding provisions. Before the entry into force of Protocol 11, Section II (Article 19) set up the commission and the court, Sections III (Articles 20 to 37) and IV (Articles 38 to 59) included the high-level machinery for the operation of, respectively, the commission and the court, and Section V contained various concluding provisions. Many of

7020-579: The court finds today are excessive delays, in violation of the "reasonable time" requirement, in civil and criminal proceedings before national courts, mostly in Italy and France . Under the "independent tribunal" requirement, the court has ruled that military judges in Turkish state security courts are incompatible with Article 6. In compliance with this Article, Turkey has now adopted a law abolishing these courts. Another significant set of violations concerns

7137-468: The court found Turkey guilty of torture in 1996 in the case of a detainee who was suspended by his arms while his hands were tied behind his back. Selmouni v. France (2000) the court has appeared to be more open to finding states guilty of torture ruling that since the convention is a "living instrument", treatment which it had previously characterized as inhuman or degrading treatment might in future be regarded as torture. In 2014, after new information

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7254-543: The court ruled that the five techniques developed by the United Kingdom ( wall-standing , hooding , subjection to noise , deprivation of sleep , and deprivation of food and drink ), as used against fourteen detainees in Northern Ireland by the United Kingdom were "inhuman and degrading" and breached the European Convention on Human Rights, but did not amount to "torture". In Aksoy v. Turkey (1997)

7371-564: The creation of a European Arrest Warrant and proposing the structure and content of legislation to achieve it. The Report was adopted by Parliament on 5 September. Watson's initiative was welcomed by the EU's Justice and Home Affairs Commissioner, Antonio Vitorino. Its timing was propitious, since only six days later, in the immediate aftermath of the September 11 attacks in the United States, these far-reaching proposals were taken up by

7488-408: The criminal act was committed. Article 7 incorporates the legal principle nullum crimen, nulla poena sine lege (no crime, no penalty without law) into the convention. Relevant cases are: Article 8 provides a right to respect for one's "private and family life, his home and his correspondence ", subject to restrictions that are "in accordance with law and is necessary in a democratic society in

7605-526: The effect of modifying the obligation to respect fundamental rights and fundamental legal principles as enshrined in Article 6 of the Treaty on European Union. In 2006, 20 of the then 25 member states included text which was based on at least one of these provisions or which explicitly referred to the European Convention on Human Rights , in their domestic implementing legislation. The others took

7722-492: The exception contained in the second paragraph does not constitute situations when it is permitted to kill, but situations where it is permitted to use force which might result in the deprivation of life. Article 3 prohibits torture and "inhuman or degrading treatment or punishment". There are no exceptions or limitations on this right. This provision usually applies, apart from torture, to cases of severe police violence and poor conditions in detention. The court has emphasised

7839-466: The executing country but use it for criminal proceedings. The grounds of non-recognition or non-execution are laid out in Article 11 of the Directive are limited and are the basis on which an executing state may refuse an EIO. This applies to the ne bis in idem rule among other things. Another disparity of the right of the defence regards the right to, in an immediate and direct manner, challenge

7956-530: The execution of the measure in the executing State. In August 2010 the European Commission issued an opinion on the initiative, warning that it may be a system of evidence sharing without the safeguards provided by common admissibility standards. In its opinion, the European Commission noted the advantages of the proposal – a simpler, unified system – if the system was backed by the appropriate procedural and fundamental rights standards. At

8073-436: The existing legal framework applicable to the gathering and transfer of evidence between the member states. It proposed a procedure that would allow an authority in one member state (the "issuing authority") to request specific criminal investigative measures be carried out by an authority in another member state (the "executing authority"). The measure is based on the principle of mutual recognition established in article 82(1) of

8190-508: The extradition of both their nationals and the nationals of other Nordic countries elsewhere. In addition seven of the 12 member states which joined between 2004 and 2007 – namely Bulgaria, Cyprus, the Czech Republic, Latvia, Lithuania, Poland, and Slovenia – employed a similar prohibition prior to their accession. Under the Framework Decision, member states are precluded from refusing the surrender of their own nationals wanted for

8307-439: The fight against organized crime, it is also considered "highly controversial" due to its potential for abuse. It, for instance, raises issues with constitutional law . Moreover, human rights organizations have expressed concerns about the imprisonment of innocent persons, the disproportionality of the EAW and violations of procedural rights. Measures which sought to harmonise extradition rules across EU member states date from

8424-517: The first three types of proceedings which relate to offenses or infringements where a legal person can be held liable and punished in the issuing state. The EIO can serve as a less intrusive alternative for issuing a prosecution EAW. On the basis of an EAW, the defendant could be heard in the executing Member State, for instance by way of video conference, instead of surrendering them to the issuing Member States. For some investigative measures, Member States may require double criminality. However, as with

8541-519: The fundamental nature of Article 3 in holding that the prohibition is made in "absolute terms ... irrespective of the victim's conduct". The court has also held that states cannot deport or extradite individuals who might be subjected to torture, inhuman or degrading treatment or punishment, in the recipient state. The first case to examine Article 3 was the Greek case , which set an influential precedent. In Ireland v. United Kingdom (1979–1980)

8658-402: The interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others". This article clearly provides a right to be free of unlawful searches, but the court has given the protection for "private and family life" that this article provides

8775-477: The issuing and the executing states have made declarations to that effect. The permission of the executing state is not required: Since its implementation in 2004, the EAW system has been occasionally criticised for inappropriate or disproportionate use. Following a report by an internal working party, the Presidency of the Council of the European Union suggested in 2007 that it would be appropriate to have

8892-426: The issuing authority decides on the type of investigative measure to be used. However, flexibility is introduced by allowing, in a limited number of cases, the executing authority to decide to have recourse to an investigative measure other than that provided for in the EIO. Clear time limits are provided for the recognition and, with more flexibility, for the execution of the EIO. The proposal also innovates by providing

9009-481: The issuing of an EIO for evidence in another country. This raises a challenge against the equality of arms which is guaranteed by the European Convention of Human Rights as a component of a fair trial. Article 4 of the Directive stipulates the type of proceedings for which an EIO could be issued, which includes administrative proceedings. This is problematic with regards to the rule of speciality , as an issuing state may request evidence for an administrative offence in

9126-570: The issuing of an EIO. This right was not inherent when the Directive was drafted or went into force. Through interpretations and guidance by Eurojust , clarifications have been made over the years. However, when asked questions in a preliminary ruling of the Gavanozov case in 2019, the Court avoided answering regarding the direct legal status of suspects. In this case, The Bulgarian domestic court requested another preliminary ruling on this issue, which

9243-500: The legal obligation to execute the EIO with the same celerity and priority as for a similar national case. The EIO provides for the use of a form that should be used in all cases. Compared to the European Evidence Warrant and to mutual legal assistance , the EIO provides for rationalisation of the grounds for refusal, and the right of the issuing authority to request that one or several of its officials assist in

9360-493: The lengthy extradition procedures that used to exist between member states. The EAW has been in force since 1 January 2004 in all Member States. An EAW issued by one of the Member States is valid in the entire territory of the EU. The mechanism is based on the principle of mutual recognition . An EAW can be issued only for the purposes of conducting a criminal prosecution (not merely an investigation), or for enforcing

9477-568: The likelihood of its success in different EU member states Puigdemont was travelling through. European Convention of Human Rights The European Convention on Human Rights ( ECHR ; formally the Convention for the Protection of Human Rights and Fundamental Freedoms ) is an international convention to protect human rights and political freedoms in Europe . Drafted in 1950 by

9594-464: The limit was not significantly exceeded (0.81 mg/L) and the theft of a piglet. In the UK, persons arrested under an EAW have been extradited for minor offences such as the stealing of ten chickens ( Romania ), unintentionally receiving a stolen mobile phone (Poland), and theft of £20 worth of petrol ( Czech Republic ). At the other extreme, the EAW has failed in some cases. The Irish Supreme Court refused to extradite an Irish citizen to Hungary who

9711-450: The manner in which the arrest of a person the subject of an EAW is not specified in the Framework Decision, once arrested, he or she has the right to be informed of the warrant, its contents, and the person's right to consent to his or her surrender to the member state that issued the warrant. The Framework Decision also provides that the requested person have the right to the assistance of legal counsel and to an interpreter "in accordance with

9828-765: The mid-1990s when the EU instituted two treaties under the Maastricht Treaty which sought to streamline existing extradition procedures under the European Convention on Extradition . In 1999, the European Council further proposed to abolish formal extradition procedures for sentenced persons. In 2001, the Chairman of the European Parliament's Committee on Citizens’ Rights and Freedoms, Justice and Home Affairs – MEP Graham Watson – piloted through Parliament an Own-Initiative Report calling for

9945-426: The national law of the executing Member State". The Framework Decision prescribes time limits for the making of a final decision to a surrender request. Where a requested person consents to his or her surrender, the executing judicial authority should make a final decision within ten days of such a consent. Where a requested person refuses to consent to his or her surrender, the executing judicial authority should make

10062-418: The opportunity to challenge the legality of the issued EIO at some stage in the investigation process. This possibility must both include review of the lawfulness of the measure instigated and the manner in which it was carried out. The issuing of EIOs will be disallowed when this minimum level of protection for the accused cannot be ensured by its national laws. The Court thus follows the recommendation given by

10179-446: The permission of the executing judicial authority. Such a request is made in the same form as a European Arrest Warrant, and granted or refused using the same rules which determine whether surrender would be granted or refused. This requirement is referred to as the principle of 'specialty' and is intended to ensure that a state cannot seek the surrender of a person for an extraditable offence whilst intending to prosecute that person for

10296-424: The person are taken as a "compound" concept – security of the person has not been subject to separate interpretation by the court. Article 5 provides the right to liberty , subject only to lawful arrest or detention under certain other circumstances, such as arrest on reasonable suspicion of a crime or imprisonment in fulfilment of a sentence. The article also provides those arrested with the right to be informed, in

10413-400: The possibility for executing member states to request certain guarantees from issuing states prior to ordering the surrender of a requested person. Whether and how member states require such guarantees depends on the law of the member state in question. A European Arrest Warrant may only be issued by the competent judicial authority in an EU member state or a state with a special agreement with

10530-464: The preamble and Article 1(3) do refer to human rights: Recital (12) This Framework Decision respects fundamental rights and observes the principles recognised by Article 6 of the Treaty on European Union and reflected in the Charter of Fundamental Rights of the European Union , in particular Chapter VI thereof. Nothing in this Framework Decision may be interpreted as prohibiting refusal to surrender

10647-408: The previous system of extradition in Europe, and converting the process into a system run entirely by the judiciary. Since it was first implemented in 2004 the use of the EAW has risen. Member state country evaluation reports suggest that the number of EAWs issued has increased from approximately 3,000 in 2004 to 15,200 in 2009, but dropped back to 10,400 in 2013. Even though the system has reinforced

10764-452: The proceedings in the issuing member state, especially when the rights of the defence were not respected in the execution of an EIO, (for example, when the defendant is not able to question an incriminating witness.) The Directive was proposed in April 2010, by a group of seven European Union Member States: Austria, Bulgaria, Belgium, Estonia, Slovenia, Spain and Sweden. The EIO would replace

10881-443: The process of evidence collection to combat transnational crime. The EIO is based on mutual recognition of judgements and judicial decisions concerning criminal matters as defined by Article 82(1) TFEU. Mutual recognition has become the pillar of judicial cooperation in criminal matters and allows judgements or judicial decisions from other Member States to have the same level of force and effect as national jurisprudence, even if there

10998-523: The protection of rights. The convention was opened for signature on 4 November 1950 in Rome. It was ratified and entered into force on 3 September 1953. It is overseen and enforced by the European Court of Human Rights in Strasbourg, and the Council of Europe . Until procedural reforms in the late 1990s, the convention was also overseen by a European Commission on Human Rights . Proposals for reform of

11115-408: The purposes of prosecution, but they may condition the surrender of a requested person on his or her being returned to the issuing state to serve any sentence ultimately imposed. The Netherlands which requires issuing states to return both Dutch nationals and permanent residents, also requires issuing states to agree that any sentences imposed will be converted into those applicable under Dutch law using

11232-570: The purposes of the framework decision. Such designations have been questioned before the British and Irish courts on the basis that in order for an authority to be judicial it should be a court or judge. In both countries, the designated issuing authority is a judge. However the courts of each have rejected these arguments. In Assange v Swedish Prosecution Authority the High Court of England and Wales found that: [...] it cannot be said that

11349-418: The requested person if: Under the Framework Decision the executing judicial authority may refuse to surrender the requested person if: In 2009 the Council of Ministers amended the EAW framework decision with the express intention of "enhancing the procedural rights of persons and fostering the application of the principle of mutual recognition to decisions rendered in the absence of the person concerned at

11466-627: The requirement that the person have "fled" the requesting jurisdiction has since been removed from Irish law, and a new warrant has been issued by the Hungarian authorities. In the case of Carles Puigdemont (alleged to have committed sedition by Spanish authorities in connection with the 2017 Catalan independence referendum ), some MEPs and legal commentators criticised the Spanish Government for appearing to have opportunistically issued and withdrawn his European Arrest Warrant based on

11583-496: The right to freedom of expression , subject to certain restrictions that are "in accordance with law" and "necessary in a democratic society". This right includes the freedom to hold opinions, and to receive and impart information and ideas, but allows restrictions for: Relevant cases are: Article 11 protects the right to freedom of assembly and association, including the right to form trade unions , subject to certain restrictions that are "in accordance with law" and "necessary in

11700-445: The right to a public hearing before an independent and impartial tribunal within reasonable time, the presumption of innocence , and other minimum rights for those charged with a criminal offence (adequate time and facilities to prepare their defence, access to legal representation, right to examine witnesses against them or have them examined, right to the free assistance of an interpreter). The majority of convention violations that

11817-416: The services of Interpol . The EAW Framework Decision requires that a warrant can only be issued when an offence is punishable by imprisonment or a detention order for a maximum period of at least one year, or in conviction cases, where the remaining term of imprisonment is four months or more. This can nonetheless include a wide variety of trivial offences. In 2007, a report commissioned by the Presidency of

11934-421: The term judicial applies only to a judge who adjudicates. The differing European traditions recognise that others, including prosecutors, can be included within that term for various purposes. It is therefore entirely consistent with the principles of mutual recognition and mutual confidence to recognise as valid an EAW issued by a prosecuting authority designated under Article 6. To do otherwise would be to construe

12051-420: The then newly formed Council of Europe , the convention entered into force on 3 September 1953. All Council of Europe member states are party to the convention and new members are expected to ratify the convention at the earliest opportunity. The convention established the European Court of Human Rights (generally referred to by the initials ECtHR). Any person who feels their rights have been violated under

12168-625: The time of the adoption of the opinion, Viviane Reding , the EU Justice Commissioner said that she would "ensure that the proposal respects the EU Charter of Fundamental Rights." A general approach on the draft text was reached at the meeting of the Council in December 2011, allowing the Council to negotiate with the European Parliament for the adoption of the measure. The rapporteur in the European Parliament

12285-434: The trial". Framework Decision 2009/299/JHA deleted Art. 5(1) FD 2002/584/JHA and introduced Art. 4a. Article 4a introduced a ground for optional refusal to execute by the respective executing judicial authority. Art. 5(1) allowed the execution of a European Arrest Warrant dependant, on a guarantee by the issuing judicial authority concerning an opportunity for a retrial if the EAW was issued to enforce an in absentia decision. It

12402-483: The view that the rights exist independently from the Framework Decision. Fair Trials International (FTI), the London-based human rights non-governmental organisation, claims to have highlighted a number of cases which demonstrate that the European Arrest Warrant system is causing serious injustice and jeopardising the right to a fair trial. In particular, FTI allege that: The Framework Decision also establishes

12519-565: The word 'judicial' out of context and look at it simply through the eyes of a common law judge, who would not consider a prosecutor as having a judicial position or acting as a judicial authority. The position in some other Member States is different [...] On appeal, the UK's Supreme Court affirmed the decision of the High Court and found that, when comparing different language versions, the framework decision demonstrated an intention to regard public prosecutors as judicial authorities and that

12636-562: Was Nuno Melo of the European People's Party . Before the approval of the EIO could be considered by the European Parliament and EU Council , it was criticised by Fair Trials International , the Fundamental Rights Agency , Statewatch and some UK parliamentarians , who fear that it will allow increased police surveillance and disproportionate use of investigative powers in trivial matters. The directive

12753-531: Was adopted in 2014. European Arrest Warrant The European Arrest Warrant ( EAW ) is an arrest warrant valid throughout all member states of the European Union (EU). Once issued, it requires another member state to arrest and transfer a criminal suspect or sentenced person to the issuing state so that the person can be put on trial or complete a detention period. It is a simplified cross-border judicial surrender method, and has replaced

12870-501: Was alleged to have killed two children through negligent driving. While the Irish Court never questioned the facts of the case or the fairness or outcome of the Hungarian trial, it decided that the person did not technically "flee" from Hungary, only "failed to return", having left the country with the consent of the Hungarian authorities; therefore, the legal requirements for extradition under an EAW had not been established. However,

12987-431: Was deemed necessary to replace the former Art. 5(1), because it left the assurance provided by the issuing authority up for the judgment to the executing judicial authority. In absentia trials have been problematic since the very beginning of the EAW, also since there was uncertainty as to what exactly entails the concept of “in absentia” in the Member States. The 2009 amendment besides introducing Art. 4a, has also specified

13104-458: Was delivered on 11 November 2021. In this decision, the Court explained the articles in accordance with ECtHR case law and the EU Charter of Fundamental Rights. The inability to challenge the necessity and legality of a European Investigation Order carrying out searches and seizures in the issuing Member State constitutes a breach of Article 47 of the Charter. The issuing State must at least provide

13221-443: Was designed to incorporate a traditional civil liberties approach to securing "effective political democracy", from the strongest traditions in the United Kingdom, France and other member states of the fledgling Council of Europe, as said by Guido Raimondi , President of the European Court of Human Rights : The European system of protection of human rights with its Court would be inconceivable untied from democracy. In fact, we have

13338-404: Was drafted by the Council of Europe after the Second World War and Hague Congress. Over 100 parliamentarians from the twelve member states of the Council of Europe gathered in Strasbourg in the summer of 1949 for the first-ever meeting of the council's Consultative Assembly to draft a "charter of human rights" and to establish a court to enforce it. British MP and lawyer Sir David Maxwell-Fyfe ,

13455-488: Was that it only applied to already existing evidence and thus had a limited scope, outside of which the only measure available was the mutual legal assistance Procedure. The result of these framework decisions was that the framework for collecting evidence was fragmented and complex. This fragmentation was discussed at the Stockholm Program by the European Council in 2009 where it was decided that there needed to be

13572-502: Was that there would need to be a separate request for the transferring of evidence to the issuing state. There was also Council Framework Decision 2008/978/JHA which pertained to the European Evidence Warrant. This instrument allowed for the mutual recognition of judicial orders issued for the sake of obtaining objects, documents and data in order for them to be used in criminal proceedings. The issue with this measure

13689-597: Was uncovered that showed the decision to use the five techniques in Northern Ireland in 1971–1972 had been taken by British ministers, the Irish Government asked the European Court of Human Rights to review its judgement. In 2018, by six votes to one, the court declined. Article 4 prohibits slavery , servitude and forced labour but exempts labour: Article 5 provides that everyone has the right to liberty and security of person. Liberty and security of

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