EU Protects: How a European arrest warrant works

Article written by Abigail Mizzi – Executive, EU Policy & Legislation, MEUSAC
Published on The Malta Today – 18.09.19

Last year’s arrest of former President of the Government of Catalonia and pro-Independence Catalan leader Carles Puigdemont in Germany sparked a big debate and the issue attracted a lot of media attention. His controversial arrest was conducted under a European Arrest Warrant (EAW) whereby it was possible for German authorities to arrest Mr Puigdemont on Spain’s orders. Mr Puigdemont fled Spain following the chaotic events which dominated the Catalan Independence Referendum in 2017 – a referendum declared illegal by the Spanish government.  As a result, Spain issued an EAW on Mr Puigdemont charging the Catalan leader with rebellion, sedition and misuse of public funds.  Following the EAW, German authorities detained him while on a highway patrol in Germany.

The case in question was referred to in a bid to cite an example of how the EAW works. This procedure was established in 2004 in order to simplify and facilitate cross-border surrender procedures and extradition processes within EU Member States. Prior to the establishment of the EAW, surrender and extradition processes from one Member State to another were often lengthy, complicated and often involved a lot of political or government interference. With the EAW in place, an arrest warrant issued by a judicial authority in one EU Member State enjoys ‘mutual recognition’ in all the other Member States.  In other words, judicial decisions taken in one judiciary are also applicable in another, given that the criteria and conditions are met. This also means that Member States cannot reject surrender orders of their own nationals if they are arrested in another Member State.

Conditions and criteria remain. For instance, before an EAW is issued, a ‘proportionality check’ is made.  This check evaluates the gravity of the offence, the imprisonment sentence attributed to the offence and whether an EAW for the crime in question will be worthwhile. This eliminates the use of an EAW for minor offences, such as crimes with a penalty sentence of less than one year.

There are, in all, 32 crime categories recognised by the EAW – these crimes do not require verification of whether the crime is a criminal act by the laws of both Member States (the Member State where the fugitive is from and the Member State where the fugitive is arrested). These crime categories include terrorist acts, murder, armed robbery, trafficking of human beings, weapons or drugs, to mention a few.

However, there could be crimes which are considered serious criminal acts in one Member State but not in another. In this case, a double criminality check would be required by the law courts. For example, going back to the Puigdemont case, the German courts conducted a double criminality check and ruled that he could be extradited to Spain on charges of misuse of public funds but not on charges of ‘rebellion’ since German law varies from Spanish law on this matter.

Needless to say, thanks to the identified 32 crime categories in the EAW, this mechanism has made coordination and cooperation between the judicial systems of Member States easier as well as more efficient and effective.   According to statistics provided by the European Justice portal in 2016, 5,812 EAWs were made in the whole of the EU. In Malta alone, until April of this year, the Malta Police Force handled 6 arrests through EAWs, including serious cases such as the arrest of an Italian man wanted on charges of illegal betting and involvement in mafia organisations and the arrest of a British man wanted by the United Kingdom on charges of murder.

The mechanism is a testament that EU cooperation can be fruitful, not only when it exists between Member States’ governments, but also when it involves fundamental structures such as judicial authorities. In this way, justice can be served properly and in a timely manner.

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