MEETING OF THE SOUTH EAST EUROPE
REGIONAL EXPERT TEAMS ON
JUDICIAL CO-OPERATION IN
CIVIL AND COMMERCIAL MATTERS

BUCHAREST

28th – 30th MAY 2012

EXTRADITION : THE EUROPEAN ARREST WARRANT

The Honourable Mr Justice Bernard McCloskey

Court of Judicature of Northern Ireland

Chairman, Northern Ireland Law Commission

Association of European Administrative Judges

 

Preface

I The Regional Co-Operation Council of South East Europe 1 - 5 

II The Council Framework Decision :

an Overview 6 - 13
III The European Arrest Warrant : 
Governing Principles, Rights and
Duties 14 - 16

IV The European Commission Report of April 2011 17 - 21

V The Form and Content of the EAW 22 - 25

VI Some Concluding Remarks 26 & 27

Postscript

Appendices

1. The Council Framework Decision

2. Annex to the Council Framework Decision : the Pro-Forma
European Arrest Warrant

Preface

It is truly an honour and privilege to attend this prestigious event and address this esteemed assembly. My attendance here is a reflection of several considerations. I would highlight three in particular. The first is the progressive influence of EU law amongst not only EU Member States but also on the wider international plane. The second is the ever-expanding influence and importance of the Association of European Administrative Judges. I am a proud member and the nominee and delegate of this organisation at this event. The Association, through its inspirational president (Dr. Heinrich Zens) and its dedicated and industrious secretary (Dr. Edith Zeller), both Austrian judges, is an exemplary manifestation of inter-state co-operation and continuing judicial education at an EU level. One of the facilities which it provides is that of contributing to important international juridical events such as the present one. Thirdly, the Northern Ireland legal and judicial system, of which I am also a proud member, continues to punch above its weight at an international level, thanks in particular to the broad and enlightened vision of its most senior member, Sir Declan Morgan, the Lord Chief Justice of Northern Ireland.

Furthermore, Northern Ireland has had its fair share of relatively high profile and challenging extradition cases during recent years. This, in hindsight, was unsurprising having regard to the significantly altered extradition landscape established by the Council Framework Decision and, in consequence, the emergence of a series of previously untested and undecided questions of law, raising mainly issues of interpretation.

I make my modest contribution to this conference accordingly.

I THE REGIONAL CO-OPERATION COUNCIL OF SOUTH

EAST EUROPE

The Regional Co-Operation Council (“RCC”) of South East Europe (“SEE”) is an international organisation of increasing prominence and influence. It is an amalgamation of states situated in the south eastern corner of Europe. Progressive cohesion and co-operation amongst subscribing states is one of the organisation’s achievements, as it seeks to realise its three objectives of higher but more sustainable growth, the alleviation of poverty and greater integration. Joint strategies and common actions are the tools required to secure these objectives. One of the main stimuli for action has been the global economic crisis giving rise to a need for a more co-ordinated, regional response. Thus an assessment of the economies in the region with a view to pursuing convergence with the European Union (“EU”) has been undertaken and has gained momentum from the economic crisis, which has caused unemployment rates to increase throughout the region, ranging from 12% in Croatia to 31% in Macedonia.

Another notable achievement was the South East Europe 2020 Vision, endorsed by the Ministerial Conference conducted in November 2011. This is designed to provide an anchor for regional recovery and development strategy. This measure commits governments to developing a set of quantifiable regional political targets duly transposed into policy objectives and evaluated by the application of agreed tools. This measure is to develop in tandem with two other objectives of undeniable importance in the region, namely integrated growth, aiming for greater integration of regional markets and governance for growth, establishing a framework for developing administrative and institutional capacities to address serious crime and corruption.

Subscribing states are a mixture of EU Member States, pre-accession states and others. Trade provides links connecting the economies of the states in the region. There have also been joint investments and projects in infrastructure and energy. Co-operation amongst states is strengthened by measures such as the EU Instrument for Pre-Accession Assistance, Regional Development Component and the Western Balkans Investment Framework. The association between economic growth and political stability is widely recognised. All of the subscribing states aspire to full membership of the EU. This is a shared priority, which requires fulfilment of the Copenhagen Economic Criteria. It is recognised that policies according with the Europe 2020 Strategy are essential for the achievement of EU membership. Since 2011, the management of the South East European Investment Committee (“SEEIC”) has been undertaken by the RCC, replacing the Organisation for Economic Co-operation and Development (“OECD”). One of the key objectives of SEEIC is to create and implement a common regional vision for economic development in the SEE region reflecting and compatible with the targets of the EU 2020 Strategy. Development of the private sector is recognised as a matter of key importance in increasing the competitiveness of all of the economies of the region. This engages a series of policy areas including enterprise policy, public administration reform and infrastructure development. This will focus particularly on perceived difficulties such as the lack of early stage equity finance for small and medium size enterprises which have the potential to create new jobs and strengthen economic growth.

On 18th March 2011, in Budva, a mandate was established by the Common Declaration of SEECP Ministers of Justice and Home Affairs regarding the endorsement of the Regional Strategic Document 2011-2013 and the Action Plan for its implementation. Subsequently, certain Conclusions were adopted by the Ministers of the Interior and Ministers of Justice of the SEECP countries at the Belgrade Conference held on 29th/30th November 2011. These Conclusions related to “Challenges and Achievements of the Regional and Transnational Co-operation in the Fight against Organised Crime in South Eastern Europe”. During the period 2010/2011 countries of the SEE region also engaged in other activities. These included a workshop on judicial co-operation in criminal matters, conducted on 7th/8th November 2011 in Belgrade.

In May 2012, the RCC Secretariat of the SEE published its report on regional co-operation activities in respect of the previous three months. This records deliberations and activities which have focussed on, inter alia :

(a) Strengthening judicial and prosecutorial co-operation in criminal matters.

(b) Increased co-operation in civil and commercial matters.

These activities have been undertaken under the umbrella of the RCC Strategy and Work Programme 2011-2013. They have included meetings with the International Association of Prosecutors and the ASSER Institute. This has provided a forum for exchanging views on modalities for the SEE, ranging from classic mutual legal assistance instruments to mutual recognition and direct co-operation in criminal matters based on EU models. The various steps and activities outlined above gave rise to the formation of the SEE Regional Expert Team on Judicial Co-operation in Criminal Matters. This group convened on 29th/30th May 2012 in Bucharest, Romania. This provides the context and impetus for the specific subject addressed in this paper, namely the operation of the EU European Arrest Warrant regime. The substance of this paper was presented by the author at the aforementioned conference. 

II THE COUNCIL FRAMEWORK DECISION : AN OVERVIEW

The following nomenclature is applied throughout this paper :

I shall describe the EU Council Framework Decision of 13th June 2002 on the European Arrest Warrant and the Surrender Procedures between Member States as “the Council Framework Decision”.

I shall describe the European Arrest Warrant as “the EAW”.

Both are appended to this paper.
The Council Framework Decision is an instrument of EU law, which governs the extradition (in contemporary language "surrender") of individuals from one Member State to the other. Its full title is "Council Framework Decision of 13th June 2002 on the European Arrest Warrant and the Surrender Procedures between Member States". The essence and objectives of this measure can be ascertained from its fifth recital, which states :

"The objective set for the Union to become an area of freedom, security and justice leads to abolishing extradition between Member States and replacing it by a system of surrender between judicial authorities. Further, the introduction of a new simplified system of surrender of sentenced or suspected persons for the purposes of execution or prosecution of criminal sentences makes it possible to remove the complexity and potential for delay inherent in the present extradition procedures. Traditional co-operation relations which have prevailed up till now between Member States should be replaced by a system of free movement of judicial decisions in criminal matters, covering both pre-sentence and final decisions, within an area of freedom, security and justice ".

[Emphasis added].
The Council Framework Decision makes provision for the "European Arrest Warrant" ("the EAW"). This is described in the sixth recital as "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 co-operation".
According to the ninth recital, the role of the "Central Authority" in each Member State in the execution of a EAW "must be limited to practical and administrative assistance". The need for "sufficient controls" in decisions on the execution of a EAW is identified in the eighth recital as the rationale for requiring that decisions on surrender must be made by a "judicial authority" of the Member State where the requested person has been arrested. The recitals continue :
"[10] The mechanism of the European Arrest Warrant is based on a high level of confidence between Member States …
[11] In relations between Member States, the European Arrest Warrant should replace all the previous instruments concerning extradition". 
Thus, based on the overarching principle of mutual trust and confidence, the EAW operates in a bilateral judicial regime : the judicial authority of the requesting state formulates and submits the EAW to the judicial authority of the requested state. The importance of respecting fundamental rights, coupled with the need for due process, is highlighted in the twelfth recital. The thirteenth recital provides, specifically :

"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".
The substantive provisions of the Council Framework Decision reflect and give effect to the values, standards and objectives expressed in its recitals, summarised above. Article 1(1) defines the EAW as "a judicial decision issued by a Member State with a view to the arrest and surrender by another Member State of a requested person, for the purposes of conducting a criminal prosecution or executing a custodial sentence or detention order". By Article 1(2) :
"Member States shall execute any European Arrest Warrant on the basis of the principle of mutual recognition and in accordance with the provisions of this Framework Decision".

[Emphasis added].
The category of criminal conduct falling within the scope of the EAW is detailed in Article 2. This includes, per Article 2(2), offences of terrorism punishable by a custodial sentence of at least three years in the "issuing" Member State. Under Article 3, the executing judicial authority must decline to execute the EAW in certain circumstances, whereas pursuant to Article 4 execution is discretionary in specified cases. Article 6 provides :

"1. The issuing judicial authority shall be the judicial authority of the issuing Member State which is competent to issue a European Arrest Warrant by virtue of the law of that State.
2. The executing judicial authority shall be the judicial authority of the executing Member State which is competent to execute the European Arrest Warrant by virtue of the law of that State.
3. Each Member State shall inform the General Secretariat of the Council of the competent judicial authority under its law".
Furthermore, by Article 7, each Member State may designate a "central authority" for the purpose of assisting the competent judicial authorities.
In accordance with Article 8, the EAW must have a prescribed form and content. Further, it must be translated into the official language of the executing Member State. Chapter 2 of the Council Framework Decision regulates the procedure for the surrender of the requested person. Article 9(1) provides :
"When the location of the requested person is known, the issuing judicial authority may transmit the European Arrest Warrant directly to the executing judicial authority".
In appropriate cases, the issuing judicial authority may also have recourse to an "alert", which is described as "equivalent to a European Arrest Warrant accompanied by the information set out in Article 8(1)." It is clear from Article 11 that the executing competent judicial authority has a proactive role from the time of the requested person’s arrest. In particular, one of the decisions to be made is whether the arrested person should be detained. In this respect, Article 12 provides :
"When a person is arrested on the basis of a European Arrest Warrant, the executing judicial authority shall take a decision on whether the requested person should remain in detention, in accordance with the law of the executing Member State. The person may be released provisionally at any time in conformity with the domestic law of the executing Member State, provided that the competent authority of the said Member State takes all the measures it deems necessary to prevent the person absconding".
The prominence given in this provision of the Council Framework Decision to the risk of absconding is noteworthy. 
Article 14 of the Council Framework Decision provides: 
"Where the arrested person does not consent to his or her surrender as referred to in Article 13, he or she shall be entitled to be heard by the executing judicial authority, in accordance with the law of the executing Member State".
The importance of expedition is emphasized in Article 17, which provides :
"1. A European Arrest Warrant shall be dealt with and executed as a matter of urgency.
2. In cases where the requested person consents to his surrender, the final decision on the execution of the European Arrest Warrant should be taken within a period of ten days after consent has been given.
3. In other cases, the final decision on the execution of the European Arrest Warrant should be taken within a period of sixty days after the arrest of the requested person.
4. Where in specific cases the European Arrest Warrant cannot be executed within the time limits laid down in paragraphs 2 or 3, the executing judicial authority shall immediately inform the issuing judicial authority thereof, giving the reasons for the delay. In such case, the time limits may be extended by a further thirty days …
7. Where in exceptional circumstances a Member State cannot observe the time limits provided for in this Article, it shall inform Eurojust, giving the reasons for the delay."
Article 17(5) is also noteworthy :
"As long as the executing judicial authority has not taken a final decision on the European Arrest Warrant, it shall ensure that the material conditions necessary for effective surrender of the person remain fulfilled".
Article 17(6) provides that where the executing judicial authority determines not to execute the EAW, reasons must be provided. 
The requirement for expedition on the part of the executing Member State features again in Article 23, which provides :
"1. The person requested shall be surrendered as soon as possible on a date agreed between the authorities concerned.
2. He or she shall be surrendered no later than ten days after the final decision on the execution of the European Arrest Warrant.
3. If the surrender of the requested person within the period laid down in paragraph 2 is prevented by circumstances beyond the control of any of the Member States, the executing and issuing judicial authorities shall immediately contact each other and agree on a new surrender date. In that event, the surrender shall take place within ten days of the new date thus agreed."
Where the requested person has been detained in custody in the executing Member State, credit for that period in custody must be given in the event of a custodial sentence being imposed ultimately. This is clear from Article 26 :
"1. The issuing Member State shall deduct all periods of detention arising from the execution of a European Arrest Warrant from the total period of detention to be served in the issuing Member State as a result of a custodial sentence or detention order being passed."
This provision reflects United Kingdom domestic law and, presumably, the equivalent domestic laws of certain other Member States.
It is convenient to highlight the following milestones in the EAW process :

Formulation of the EAW, a judicial decision in the requesting state.

Arrest of the subject in the requested state.

Ensuing detention or provisional liberty (bail).

A hearing in the requested state before the appropriate judicial authority.

A reasoned judicial decision executing, or declining to execute, the EAW.

A right of appeal to a superior court.

If no appeal, further detention of the subject in the requested state for a period of ten days maximum.

Ultimately, in cases of execution, transfer of the subject to the requesting state, where either pre-trial detention/bail or committal to sentenced custody will ensue.

 

III THE EUROPEAN ARREST WARRANT : GOVERNING PRINCIPLES, RIGHTS AND DUTIES

The mechanism of the EAW is a highly important measure in the apprehension, prosecution and punishment of criminal offenders in the EU area. Furthermore, it serves as a primary example of judicial co-operation between States. The philosophy, rationale and overarching aims and principles of the Council Framework Decision and the EAW which is creates are crucial to an understanding of its provisions and procedures. [1] The Council Framework Decision was the product of an international meeting attended by representatives of various states, comparable to this meeting today. It was held in Tampere in October 1999 and this, amongst other things, gave rise to the principle of mutual recognition of criminal decisions in EU Member States. The main aim of the new measures is to achieve the objective of the EU becoming an area of freedom, security and justice. The old extradition procedures were replaced by a new system of surrender between judicial authorities. The overarching principles of these new arrangements include particularly the following :

The promotion of freedom, security and justice in the EU area.

A high level of confidence amongst Member States.

Mutual recognition of judicialised criminal decisions amongst Member States.

Judicial co-operation.

An expeditious and efficient procedure.

Respect for fundamental rights.

Due process.

Recital No. 5 of the Council Framework decision captures many of these themes. It speaks of the introduction of “a system of free movement of judicial decisions in criminal matters, covering both pre-sentence and final decisions, within an area of freedom, security and justice”. It also formulates the following central aim :

“A new simplified system of surrender of sentenced or suspected persons for the purpose of execution of prosecution of criminal sentences … [eliminating] … the complexity and potential for delay inherent in the present extradition procedures”.

Thus the EAW system is designed to effect the surrender of a person by one Member State to another for either (or both) of two purposes :

“For the purposes of conducting a criminal prosecution” ; and/or

“For the purposes of … executing a custodial sentence or detention order”. [2]

The Council Framework Decision gives prominence to the principle of mutual recognition and the obligation of Member States to respect fundamental rights and fundamental legal principles pursuant to Article 6 of the Treaty of the European Union (“the TEU”). [3]

The theme of individual rights is an important feature of the EAW system. Viewed through this prism, one can identify respect for and protection of a series of such rights :

A simpler and uncluttered judicial extradition process.

An expedited process, wherein avoidable delay has enemy status.

The obligation on the executing judicial authority to provide written reasons for any delay.

Independent and impartial judicial oversight throughout.

A series of due process rights – beginning with the prescribed form and content of the European Arrest Warrant.

A right to apply for bail.

The familiar common law “audi alteram partem” right, in a modern and European incarnation.

The principle of informed consent.

Protection against double jeopardy.

Specific protection against the risk of the death penalty, torture or other inhuman or degrading treatment or punishment in the requesting State.

Protection against extradition designed to facilitate prosecution of the requested person on what are now universally recognised proscribed grounds (race, religion, nationality, gender, sexual orientation and political opinion).

Protection against oppressive extradition based on the passage of time only.

A specific protection against extradition of a person who could not be convicted in the requesting State on account of his age.

Special protection in cases where the requesting State is a party to the Hostage Taking Convention.

The preservation of the “speciality” rule.

The introduction of a “forum bar”.

A right of appeal.

Thus, the Council Framework Decision contains a veritable proliferation of rights, designed for the benefit and protection of the requested person. It is truly, inter alia, an international human rights instrument.

Analytically, in contemporary extradition proceedings the requested person enjoys a series of rights at three main stages :

(a) During the initial, pre-hearing phase in the Requested State.

(b) Throughout the hearing phase.

(c) Post-hearing.

One is immediately struck by the consideration that no express rights are conferred on the requested person at the beginning of the extradition process viz. in the requesting state. This apparent gap might be usefully reconsidered. In particular, to fill it in a sensible and proportionate way should not necessarily compromise any of the overarching aims and purposes of the Council Framework Decision.

IV THE EUROPEAN COMMISSION REPORT OF APRIL 2011

The European Commission has recently published an interesting report in which it reviews the operation of the Council Framework Decision since the year 2007. [4] One recalls that the Council Framework Decision is dated 13th June 2002 and it came into operation on 1st January 2004. The Extradition Act 2003 came into operation on the same date. [5] It is uncontroversial that the Council Framework Decision had a series of overarching aims. Foremost amongst these was the reduction of delay and the introduction of a simpler and more streamlined process. One of the underlying rationales was to ensure that open borders within the EU area are not exploited by those seeking to evade justice. Fundamentally, the EAW operates as an instrument of mutual police and judicial co-operation amongst EC Member States.

The European Commission Report contains some notable facts and figures :

Between 2005 and 2009, some 55,000 EAWs were issued. Of these, almost 12,000 (i.e. less than 30%) were executed. Between 51% and 62% of requested persons consented to surrender, on average within 14 to 17 days.

For those requested persons who contested the EAW, the average surrender time, measured from initial arrest to final judicial decision, was 48 days (compared with the previous average of one year).

Disproportionate resort to EAWs by certain Member States is identified as one of the concerns. For example, between 2005 and 2009, France issued some 7,300 EAW requests (some 12½% of the total), of which a mere 1,500 (viz. approximately 20%) resulted in surrender. In contrast, the United Kingdom issued 665 EAW requests, resulting in 328 executions (viz. circa 50%). Poland issued a remarkable 17,000 EAW requests, with only 2765 successes (a mere 15%). Ireland issued 180 EAW requests, resulting in 40 executions (just over 20%). Focussing on the average surrender period of 48 days in contested cases : the Irish Department of Justice claims that the average period is 4 months (viz. circa 120 days) in such cases.

There is an increasing emphasis on the procedural rights of the requested person, recently recognised in Council Resolution of 30th November 2009, which identifies six priority measures (the so-called “Roadmap”) :

The right to interpretation and translation.

The right to information about rights.

Pre-trial legal advice and legal aid for trial.

A right to communicate with family members, employers and consular authorities.

Protection for vulnerable suspects.

A Green Paper on pre-trial detention.

These measures are advancing presently within the forum of the European Parliament and Council.

Under the current EAW regime, there is no proportionality check on the part of the judicial authority in either the requesting state or the requested state. This has been highlighted in the Commission Report. By Article 2(1) of the Council Framework Decision :

“A [EAW] may be issued for acts punishable by the law of the issuing Member State by a custodial sentence or a detention order for a maximum period of at least twelve months or, where a sentence has been passed or a detention order has been made, for sentences of at least four months”.

There is general consensus among Member States that a proportionality check in the requesting State is essential, the aim being to discourage the issue of EAW requests in respect of minor offences. The proportionality check will embrace the following factors :

The seriousness of the offence.

The length of the available sentence.

The existence of alternative approaches.

A cost/benefit analysis in the execution of the EAW.

The Commission Report comments :

“There is a disproportionate effect on the liberty and freedom of requested persons when EAWs are issued concerning cases for which (pre-trial) detention would otherwise be felt inappropriate. In addition, an overload of such requests may be costly for the executing Member States. It might also lead to a situation in which the executing judicial authorities … feel inclined to apply proportionality test, thus introducing a ground for refusal that is not in conformity with the Council Framework Decision or with the principle of mutual recognition on which the measure is based on ”. [6]

One might observe that there are certain contradictions in this discrete passage. In particular, is the Commission missing the point ? Would it not be altogether better to consider reform of the Council Framework Decision ? Would this not be preferable to the subjectivity, unevenness and possible idiosyncrasy which a proportionality check might create ? What about the availability of bail, in both states ? In passing, a strong proportionality exhortation is contained in the so-called “Commission Handbook” : this is applicable to the requesting state only.

The Report’s main conclusion is as follows :

“… While the EAW is a very useful took for Member States in the fight against crime, there is room for improvement in the transposition and application of the Council Framework Decision. Protection of fundamental rights in particular must be central to the operation of the EAW system”.

The specific areas of concern then highlighted are transposition ; fundamental rights ; proportionality ; training ; implementation of complementary instruments ; and the gathering and storage of statistics. The Council Framework Decision is described as “an innovative and dynamic instrument”, which nonetheless requires ongoing close scrutiny and monitoring, with the adoption of improvement mechanisms in the aforementioned spheres. I would observe that a serious and comprehensive review of the Council Framework Decision seems entirely appropriate at this stage of its existence. In particular, by virtue of the entry into force of the Lisbon Treaty and the legally binding nature of the EU Charter of Fundamental Rights, the context in which the EAW currently operates has altered significantly.

V THE FORM AND CONTENT OF THE EAW

The Council Framework Decision has generated much litigation in the United Kingdom. This is unsurprising given that the liberty of the citizen is at stake and taking into account the significant repercussions for the individual of surrender between judicial authorities of Member States. Furthermore, the Council Framework Decision established a new legal extradition landscape which gave rise to novel questions of law and, in particular, issues of interpretation not previously decided by the courts. Challenges to the legality of a EAW in individual cases, based on contentions that its form and content are invalid, have become particularly commonplace. In the decided cases which this litigation has generated, the following are amongst the main principles/propositions which have emerged :

There is no requirement that the EAW specify any of the evidence on which the accusation is based.

The merits of the accusation against the requested person do not fall to be considered by the executing judicial authority in the requested Member State.

The EAW should convey to the requested person the essence of the accusation.

This basic requirement confers due process rights on the requested person and subjects the surrender process to a sufficient degree of judicial superintendence. This facilitates, and is linked to, the discharge of the court’s duty under Section 10 to decide whether the offence specified is an extradition offence.

Further, compliance with this basic requirement should help to expose whether any of the discretionary or obligatory statutory bars to extradition is in play and to ensure compatibility with the requested person’s Convention rights, in accordance with Section 21 of the 2003 Act.

Any specification of particulars of the conduct alleged to constitute the offence [the domestic UK statutory language] or the degree of participation in the offence by the requested person [in the language of the Council Framework Decision] will inevitably vary from one context to another : an intensely fact sensitive issue.

Such specification is bound to vary according to the nature of the offence alleged against the requested person.

The nature of the offence alleged against the requested person must be considered by reference to the domestic law of the requesting state.

In construing and applying Section 2(4)(c) of the 2003 Act in any given case, while the court must bear in mind particularly the overarching legislative aim of avoiding undue technicality and complexity, this is to be balanced with the other dominant principles and values articulated in the Council Framework Decision. [7]

As I have observed, many of the reported cases of the United Kingdom courts are concerned with issues relating to the form and content of the EAW. As a general proposition, the courts have sought to resolve such issues by the twofold mechanism of (a) construing the relevant provisions of the Council Framework Decision and/or the transposing domestic legislation [8] and (b) giving full effect to the overarching aims and principles. [9] This has frequently involved the court in striking a relatively delicate balance between the rights of the accused/requested person (on the one hand) and the other, competing legislative aims and principles, including the avoidance of tendentious technicality. [10]

Issues bearing on the form and content of the EAW must be considered in the context of Article 2 of the Council Framework Decision, which establishes the following regime :

(i) Where a sentence has already been passed, it must entail at least four months’ detention.

(ii) There is a specially prescribed Article 2.2 surrender category of offences belonging to the lengthy list which follows where the minimum period of detention/imprisonment is three years : the so-called “Tampere List”. In such cases, certification of double criminality (‘correspondence’) is not required.

(iii) There is a separate Article 2.4 surrender route for other offences, where surrender “… may be subject to the condition that the acts for which the [EAW] has been issued constitute an offence under the law of the executing Member State, whatever the constituent elements or however it is described”. This is the long established and traditional surrender mechanism of double criminality [or ‘correspondence’]. By virtue of Article 2.1, offences belonging to this category must attract a minimum period of twelve months’ detention/imprisonment.

Against this background, Article 8 of the Council Framework Decision stipulates that every EAW must contain certain prescribed information. [11] The central requirement is that the EAW specify the nature and legal classification of the offence. The correct interpretation of these words has stimulated much litigation. Similarly, every EAW must contain a description of the circumstances in which the offence was committed, including the time, place and degree of participation in the offence by the requested person. The question of whether a particular EAW complies with these requirements is an intensely case/fact specific one, dependent upon its individual context.

The most recent decision of the Northern Ireland High Court (which is normally the supreme court in extradition matters) concerned a notorious Basque terrorist. [12] In order to decide whether the requested person could be lawfully surrendered to the requesting state, Spain, the court had to construe certain provisions of the Council Framework Decision, in particular :

(i) Article 2.2 – which establishes a special category of surrender offences where the minimum period of detention/ imprisonment is three years and certification of double criminality (or “correspondence”) is not required.

(ii) Article 2.4 – the “double criminality/correspondence” extradition route.

(iii) Article 8 – which regulates the “Content and Form of the European Arrest Warrant”. This stipulates that every EAW must contain (inter alia) “ the nature and classification of the offence, particularly in respect of Article 2 ”.

The Northern Ireland High Court decided as follows :

(a) Where the extradition of the requested person is sought by the requesting State on the “double criminality/correspondence” ground, this does not have to be specified in the EAW - and must be considered by the requested State in any event.

(b) The requirement enshrined in Article 8(1)(d) of the Council Framework Decision is designed to ensure that the nature and legal classification of the offence, with particular reference to any of the provisions of Article 2, can be determined by the court in the requested state. The information contained in every EAW must be sufficient for this purpose. [13]

In thus reasoning and concluding, the court opined that –

“… the overarching aims and principles of the [Council] Framework Decision place the emphasis on substance rather than form ”.

It followed that two particular features of the Spanish EAW, namely (i) an erroneous request for the surrender of the requested person under Article 2.2 and (ii) a failure to formulate any surrender request under Article 2.4 were held not to invalidate the EAW. [14] The other grounds of appeal, including arguments based on Article 8 ECHR, oppression and abuse of process were rejected by the court.

V SOME CONCLUDING REMARKS

I suggest that the states of the South East Europe region have much to learn from the Council Framework Decision and its creation, the EAW. The system which this establishes for the surrender between Member States of both convicted and suspected persons has many merits and strengths. The SEE regional states also have the benefit of the recent review report of the European Commission. [15] Whatever system or regime is adopted ultimately, there will always be legal challenges in individual cases. This is inevitable, given that the liberty of the citizen is at stake and having regard to the profound implications of removing a citizen from one state to another.

To adopt the EU model would have the strong attraction of achieving uniformity of practice at an international level. It would also enable SEE regional states to draw on the full panoply of the EU materials – the Council Framework Decision ; the EAW itself ; decisions of the CJEU and CFI ; and the case law of the EU Member States, including a rich seam of jurisprudence in the United Kingdom, which has included decisions at the highest judicial level – the House of Lords ; the Supreme Court ; the English Court of Appeal ; the Northern Ireland High Court ; and the Supreme Court of Ireland. Fundamentally, the EAW system established by the Council Framework Decision seeks to strike a balance which accords reasonable and proportionate weight to the series of competing rights and interests in play. The EU EAW regime does not claim to be perfect, as a reading of the Commission Report confirms. However, every measure of international agreement and co-operation is, ultimately, a compromise which reflects the competing traditions, cultures and interests of the subscribing states. I would advocate that the EAW system be given the most serious consideration by the SEE regional states in their deliberations and final decision making : if it can be improved and strengthened, so much the better !

POSTSCRIPT

(i) I attended the Bucharest RCC Conference on 29th/30th May 2012 as an honoured guest and visitor. While identifying with many of the contributions made during deliberations, I was consistently struck by how much all European countries have in common. I viewed the Bucharest event as a continuation, rather than a culmination, of previous activities, a stepping stone in a process. Undeniably, this kind of process throws up difficulties and obstacles. However, spectating from a distance, I was hugely encouraged by many visible positive signs. There were clear indications of the vision, energy, determination and trust on the part of all states concerned which are a pre-requisite to the adoption of a regional arrest warrant system and kindred measures.

(ii) It was clear to me that all of the states concerned have already submitted to the rule of law. Continuing surrender to the rule of law will provide a beacon for all subscribing countries. A regional arrest warrant system is one element of an overall process in South Eastern Europe which is properly described as unprecedented, of historic proportions. Of course, mere lip service to the rule of law will not suffice. The rule of law is weakened, and threatened, in the modern world in the absence of necessary, efficacious multi-national agreements in the area of criminal law. Such agreements are required to facilitate the investigation, detection, prosecution and conviction of offenders. The benefits arising from such agreements are shared by all. Agreements of this kind will be enhanced by the creation of models and processes that are clear, accessible, practical, efficacious and expeditious.

(iii) Complete safety and security is, of course, an impossible dream. However, the modest aim of making Europe as safe as possible is both realistic and feasible. A safer Europe for all European and non-European citizens is a noble and realisable goal. In the SEE region, this is achievable by the tools of mutual trust and shared visions. Adoption of a regional arrest warrant regime is a matter of critical importance if the overarching objectives of the RCC SEE subscribing states are to be fulfilled. I wish them every success in their mission.

(iv) Finally, I would observe that the organisation of this event was highly efficient and professional in all respects. All of those involved in the organisation are to be congratulated accordingly. Furthermore, I wish to express my gratitude for the warm welcome accorded to me by the organisers and our Romanian hosts. The impressively large number of SEE States who were represented at and participated in this important event will doubtless report to their respective Governments that this was a significant and substantial step in a process of undeniable importance. Ultimately, the states of this region will, collectively, be the beneficiaries of this successful conference. This is confirmed by the text of the draft Conclusions emerging from the deliberations.

APPENDIX 1

COUNCIL FRAMEWORK DECISION
of 13 June 2002
on the European arrest warrant and the surrender procedures between Member States
(2002/584/JHA)
THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty on European Union, and in particular Article 31(a) and (b) and Article 34(2)(b) thereof,
Having regard to the proposal from the Commission(1),
Having regard to the opinion of the European Parliament(2),
Whereas :
(1) According to the Conclusions of the Tampere European Council of 15 and 16 October 1999, and in particular point 35 thereof, the formal extradition procedure should be abolished among the Member States in respect of persons who are fleeing from justice after having been finally sentenced and extradition procedures should be speeded up in respect of persons suspected of having committed an offence.
(2) The programme of measures to implement the principle of mutual recognition of criminal decisions envisaged in point 37 of the Tampere European Council Conclusions and adopted by the Council on 30 November 2000(3), addresses the matter of mutual enforcement of arrest warrants.
(3) All or some Member States are parties to a number of conventions in the field of extradition, including the European Convention on extradition of 13 December 1957 and the European Convention on the suppression of terrorism of 27 January 1977. The Nordic States have extradition laws with identical wording.
(4) In addition, the following three Conventions dealing in whole or in part with extradition have been agreed upon among Member States and form part of the Union acquis : the Convention of 19 June 1990 implementing the Schengen Agreement of 14 June 1985 on the gradual abolition of checks at their common borders(4) (regarding relations between the Member States which are parties to that Convention), the Convention of 10 March 1995 on simplified extradition procedure between the Member States of the European Union(5) and the Convention of 27 September 1996 relating to extradition between the Member States of the European Union(6).
(5) The objective set for the Union to become an area of freedom, security and justice leads to abolishing extradition between Member States and replacing it by a system of surrender between judicial authorities. Further, the introduction of a new simplified system of surrender of sentenced or suspected persons for the purposes of execution or prosecution of criminal sentences makes it possible to remove the complexity and potential for delay inherent in the present extradition procedures. Traditional cooperation relations which have prevailed up till now between Member States should be replaced by a system of free movement of judicial decisions in criminal matters, covering both pre-sentence and final decisions, within an area of freedom, security and justice.
(6) The European arrest warrant provided for in this Framework Decision is 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.
(7) Since the aim of replacing the system of multilateral extradition built upon the European Convention on Extradition of 13 December 1957 cannot be sufficiently achieved by the Member States acting unilaterally and can therefore, by reason of its scale and effects, be better achieved at Union level, the Council may adopt measures in accordance with the principle of subsidiarity as referred to in Article 2 of the Treaty on European Union and Article 5 of the Treaty establishing the European Community. In accordance with the principle of proportionality, as set out in the latter Article, this Framework Decision does not go beyond what is necessary in order to achieve that objective.
(8) Decisions on the execution of the European arrest warrant must be subject to sufficient controls, which means that a judicial authority of the Member State where the requested person has been arrested will have to take the decision on his or her surrender.
(9) The role of central authorities in the execution of a European arrest warrant must be limited to practical and administrative assistance.
(10) The mechanism of the European arrest warrant is based on a high level of confidence between Member States. Its implementation may be suspended only in the event of a serious and persistent breach by one of the Member States of the principles set out in Article 6(1) of the Treaty on European Union, determined by the Council pursuant to Article 7(1) of the said Treaty with the consequences set out in Article 7(2) thereof.
(11) In relations between Member States, the European arrest warrant should replace all the previous instruments concerning extradition, including the provisions of Title III of the Convention implementing the Schengen Agreement which concern extradition.
(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(7), in particular Chapter VI thereof. Nothing in this Framework Decision may be interpreted as prohibiting refusal to surrender 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 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.
(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.
(14) Since all Member States have ratified the Council of Europe Convention of 28 January 1981 for the protection of individuals with regard to automatic processing of personal data, the personal data processed in the context of the implementation of this Framework Decision should be protected in accordance with the principles of the said Convention,
HAS ADOPTED THIS FRAMEWORK DECISION :

CHAPTER 1
GENERAL PRINCIPLES
Article 1
Definition of the European arrest warrant and obligation to execute it
1. The European arrest warrant is a judicial decision issued by a Member State with a view to the arrest and surrender by another Member State of a requested person, for the purposes of conducting a criminal prosecution or executing a custodial sentence or detention order.
2. Member States shall execute any European arrest warrant on the basis of the principle of mutual recognition and in accordance with the provisions of this Framework Decision.
3. This Framework Decision shall not have 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.
Article 2
Scope of the European arrest warrant
1. A European arrest warrant may be issued for acts punishable by the law of the issuing Member State by a custodial sentence or a detention order for a maximum period of at least 12 months or, where a sentence has been passed or a detention order has been made, for sentences of at least four months.
2. The following offences, if they are punishable in the issuing Member State by a custodial sentence or a detention order for a maximum period of at least three years and as they are defined by the law of the issuing Member State, shall, under the terms of this Framework Decision and without verification of the double criminality of the act, give rise to surrender pursuant to a European arrest warrant :

• participation in a criminal organisation,
• terrorism,
• trafficking in human beings,
• sexual exploitation of children and child pornography,
• illicit trafficking in narcotic drugs and psychotropic substances,
• illicit trafficking in weapons, munitions and explosives,
• corruption,
• fraud, including that affecting the financial interests of the European Communities within the meaning of the Convention of 26 July 1995 on the protection of the European Communities’ financial interests,
• laundering of the proceeds of crime,
• counterfeiting currency, including of the euro,
• computer-related crime,
• environmental crime, including illicit trafficking in endangered animal species and in endangered plant species and varieties,
• facilitation of unauthorised entry and residence,
• murder, grievous bodily injury,
• illicit trade in human organs and tissue,
• kidnapping, illegal restraint and hostage-taking,
• racism and xenophobia,
• organised or armed robbery,
• illicit trafficking in cultural goods, including antiques and works of art,
• windling,
• racketeering and extortion,
• counterfeiting and piracy of products,
• forgery of administrative documents and trafficking therein,
• forgery of means of payment,
• illicit trafficking in hormonal substances and other growth promoters,
• illicit trafficking in nuclear or radioactive materials,
• trafficking in stolen vehicles,
• rape,
• arson,
• crimes within the jurisdiction of the International Criminal Court,
• unlawful seizure of aircraft/ships,
• sabotage.

3. The Council may decide at any time, acting unanimously after consultation of the European Parliament under the conditions laid down in Article 39(1) of the Treaty on European Union (TEU), to add other categories of offence to the list contained in paragraph 2. The Council shall examine, in the light of the report submitted by the Commission pursuant to Article 34(3), whether the list should be extended or amended.
4. For offences other than those covered by paragraph 2, surrender may be subject to the condition that the acts for which the European arrest warrant has been issued constitute an offence under the law of the executing Member State, whatever the constituent elements or however it is described.
Article 3
Grounds for mandatory non-execution of the European arrest warrant
The judicial authority of the Member State of execution (hereinafter ‘executing judicial authority’) shall refuse to execute the European arrest warrant in the following cases :

1. if the offence on which the arrest warrant is based is covered by amnesty in the executing Member State, where that State had jurisdiction to prosecute the offence under its own criminal law ;
2. if the executing judicial authority is informed that the requested person has been finally judged by a Member State in respect of the same acts provided that, where there has been sentence, the sentence has been served or is currently being served or may no longer be executed under the law of the sentencing Member State ;
3. if the person who is the subject of the European arrest warrant may not, owing to his age, be held criminally responsible for the acts on which the arrest warrant is based under the law of the executing State.

Article 4
Grounds for optional non-execution of the European arrest warrant
The executing judicial authority may refuse to execute the European arrest warrant :

1. if, in one of the cases referred to in Article 2(4), the act on which the European arrest warrant is based does not constitute an offence under the law of the executing Member State ; however, in relation to taxes or duties, customs and exchange, execution of the European arrest warrant shall not be refused on the ground that the law of the executing Member State does not impose the same kind of tax or duty or does not contain the same type of rules as regards taxes, duties and customs and exchange regulations as the law of the issuing Member State ;
2. where the person who is the subject of the European arrest warrant is being prosecuted in the executing Member State for the same act as that on which the European arrest warrant is based ;
3. where the judicial authorities of the executing Member State have decided either not to prosecute for the offence on which the European arrest warrant is based or to halt proceedings, or where a final judgment has been passed upon the requested person in a Member State, in respect of the same acts, which prevents further proceedings ;
4. where the criminal prosecution or punishment of the requested person is statute-barred according to the law of the executing Member State and the acts fall within the jurisdiction of that Member State under its own criminal law ;
5. if the executing judicial authority is informed that the requested person has been finally judged by a third State in respect of the same acts provided that, where there has been sentence, the sentence has been served or is currently being served or may no longer be executed under the law of the sentencing country ;
6. if the European arrest warrant has been issued for the purposes of execution of a custodial sentence or detention order, where the requested person is staying in, or is a national or a resident of the executing Member State and that State undertakes to execute the sentence or detention order in accordance with its domestic law ;
7. where the European arrest warrant relates to offences which :

(a) are regarded by the law of the executing Member State as having been committed in whole or in part in the territory of the executing Member State or in a place treated as such ; or
(b) have been committed outside the territory of the issuing Member State and the law of the executing Member State does not allow prosecution for the same offences when committed outside its territory.
▼M1 
Article 4a
Decisions rendered following a trial at which the person did not appear in person
1. The executing judicial authority may also refuse to execute the European arrest warrant issued for the purpose of executing a custodial sentence or a detention order if the person did not appear in person at the trial resulting in the decision, unless the European arrest warrant states that the person, in accordance with further procedural requirements defined in the national law of the issuing Member State :
(a) in due time :
(i) either was summoned in person and thereby informed of the scheduled date and place of the trial which resulted in the decision, or by other means actually received official information of the scheduled date and place of that trial in such a manner that it was unequivocally established that he or she was aware of the scheduled trial ;
and
(ii) was informed that a decision may be handed down if he or she does not appear for the trial ;
or
(b) being aware of the scheduled trial, had given a mandate to a legal counsellor, who was either appointed by the person concerned or by the State, to defend him or her at the trial, and was indeed defended by that counsellor at the trial ;
or
(c) after being served with the decision and being expressly informed about the right to a retrial, or an appeal, in which the person has the right to participate and which allows the merits of the case, including fresh evidence, to be re-examined, and which may lead to the original decision being reversed :
(i) expressly stated that he or she does not contest the decision ;
or
(ii) did not request a retrial or appeal within the applicable time frame ;
or
(d) was not personally served with the decision but :
(i) will be personally served with it without delay after the surrender and will be expressly informed of his or her right to a retrial, or an appeal, in which the person has the right to participate and which allows the merits of the case, including fresh evidence, to be re-examined, and which may lead to the original decision being reversed ;
and
(ii) will be informed of the time frame within which he or she has to request such a retrial or appeal, as mentioned in the relevant European arrest warrant.
2. In case the European arrest warrant is issued for the purpose of executing a custodial sentence or detention order under the conditions of paragraph 1(d) and the person concerned has not previously received any official information about the existence of the criminal proceedings against him or her, he or she may, when being informed about the content of the European arrest warrant, request to receive a copy of the judgment before being surrendered. Immediately after having been informed about the request, the issuing authority shall provide the copy of the judgment via the executing authority to the person sought. The request of the person sought shall neither delay the surrender procedure nor delay the decision to execute the European arrest warrant. The provision of the judgment to the person concerned is for information purposes only ; it shall neither be regarded as a formal service of the judgment nor actuate any time limits applicable for requesting a retrial or appeal.
3. In case a person is surrendered under the conditions of paragraph (1)(d) and he or she has requested a retrial or appeal, the detention of that person awaiting such retrial or appeal shall, until these proceedings are finalised, be reviewed in accordance with the law of the issuing Member State, either on a regular basis or upon request of the person concerned. Such a review shall in particular include the possibility of suspension or interruption of the detention. The retrial or appeal shall begin within due time after the surrender.
▼B 
Article 5
Guarantees to be given by the issuing Member State in particular cases
The execution of the European arrest warrant by the executing judicial authority may, by the law of the executing Member State, be subject to the following conditions :
▼M1 ----------
▼B 
2. if the offence on the basis of which the European arrest warrant has been issued is punishable by custodial life sentence or life-time detention order, the execution of the said arrest warrant may be subject to the condition that the issuing Member State has provisions in its legal system for a review of the penalty or measure imposed, on request or at the latest after 20 years, or for the application of measures of clemency to which the person is entitled to apply for under the law or practice of the issuing Member State, aiming at a non-execution of such penalty or measure ;
3. where a person who is the subject of a European arrest warrant for the purposes of prosecution is a national or resident of the executing Member State, surrender may be subject to the condition that the person, after being heard, is returned to the executing Member State in order to serve there the custodial sentence or detention order passed against him in the issuing Member State.
Article 6
Determination of the competent judicial authorities
1. The issuing judicial authority shall be the judicial authority of the issuing Member State which is competent to issue a European arrest warrant by virtue of the law of that State.
2. The executing judicial authority shall be the judicial authority of the executing Member State which is competent to execute the European arrest warrant by virtue of the law of that State.
3. Each Member State shall inform the General Secretariat of the Council of the competent judicial authority under its law.
Article 7
Recourse to the central authority
1. Each Member State may designate a central authority or, when its legal system so provides, more than one central authority to assist the competent judicial authorities.
2. A Member State may, if it is necessary as a result of the organisation of its internal judicial system, make its central authority(ies) responsible for the administrative transmission and reception of European arrest warrants as well as for all other official correspondence relating thereto.
Member State wishing to make use of the possibilities referred to in this Article shall communicate to the General Secretariat of the Council information relating to the designated central authority or central authorities. These indications shall be binding upon all the authorities of the issuing Member State.
Article 8
Content and form of the European arrest warrant
1. The European arrest warrant shall contain the following information set out in accordance with the form contained in the Annex :
(a) the identity and nationality of the requested person ;
(b) the name, address, telephone and fax numbers and e-mail address of the issuing judicial authority ;
(c) evidence of an enforceable judgment, an arrest warrant or any other enforceable judicial decision having the same effect, coming within the scope of Articles 1 and 2 ;
(d) the nature and legal classification of the offence, particularly in respect of Article 2 ;
(e) a description of the circumstances in which the offence was committed, including the time, place and degree of participation in the offence by the requested person ;
(f) the penalty imposed, if there is a final judgment, or the prescribed scale of penalties for the offence under the law of the issuing Member State ;
(g) if possible, other consequences of the offence.
2. The European arrest warrant must be translated into the official language or one of the official languages of the executing Member State. Any Member State may, when this Framework Decision is adopted or at a later date, state in a declaration deposited with the General Secretariat of the Council that it will accept a translation in one or more other official languages of the Institutions of the European Communities.

CHAPTER 2
SURRENDER PROCEDURE
Article 9
Transmission of a European arrest warrant
1. When the location of the requested person is known, the issuing judicial authority may transmit the European arrest warrant directly to the executing judicial authority.
2. The issuing judicial authority may, in any event, decide to issue an alert for the requested person in the Schengen Information System (SIS).
3. Such an alert shall be effected in accordance with the provisions of Article 95 of the Convention of 19 June 1990 implementing the Schengen Agreement of 14 June 1985 on the gradual abolition of controls at common borders. An alert in the Schengen Information System shall be equivalent to a European arrest warrant accompanied by the information set out in Article 8(1).
For a transitional period, until the SIS is capable of transmitting all the information described in Article 8, the alert shall be equivalent to a European arrest warrant pending the receipt of the original in due and proper form by the executing judicial authority.
Article 10
Detailed procedures for transmitting a European arrest warrant
1. If the issuing judicial authority does not know the competent executing judicial authority, it shall make the requisite enquiries, including through the contact points of the European Judicial Network (8), in order to obtain that information from the executing Member State.
2. If the issuing judicial authority so wishes, transmission may be effected via the secure telecommunications system of the European Judicial Network.
3. If it is not possible to call on the services of the SIS, the issuing judicial authority may call on Interpol to transmit a European arrest warrant.
4. The issuing judicial authority may forward the European arrest warrant by any secure means capable of producing written records under conditions allowing the executing Member State to establish its authenticity.
5. All difficulties concerning the transmission or the authenticity of any document needed for the execution of the European arrest warrant shall be dealt with by direct contacts between the judicial authorities involved, or, where appropriate, with the involvement of the central authorities of the Member States.
6. If the authority which receives a European arrest warrant is not competent to act upon it, it shall automatically forward the European arrest warrant to the competent authority in its Member State and shall inform the issuing judicial authority accordingly.
Article 11
Rights of a requested person
1. When a requested person is arrested, the executing competent judicial authority shall, in accordance with its national law, inform that person of the European arrest warrant and of its contents, and also of the possibility of consenting to surrender to the issuing judicial authority.
2. A requested person who is arrested for the purpose of the execution of a European arrest warrant shall have a right to be assisted by a legal counsel and by an interpreter in accordance with the national law of the executing Member State.
Article 12
Keeping the person in detention
When a person is arrested on the basis of a European arrest warrant, the executing judicial authority shall take a decision on whether the requested person should remain in detention, in accordance with the law of the executing Member State. The person may be released provisionally at any time in conformity with the domestic law of the executing Member State, provided that the competent authority of the said Member State takes all the measures it deems necessary to prevent the person absconding.
Article 13
Consent to surrender
1. If the arrested person indicates that he or she consents to surrender, that consent and, if appropriate, express renunciation of entitlement to the ‘speciality rule’, referred to in Article 27(2), shall be given before the executing judicial authority, in accordance with the domestic law of the executing Member State.
2. Each Member State shall adopt the measures necessary to ensure that consent and, where appropriate, renunciation, as referred to in paragraph 1, are established in such a way as to show that the person concerned has expressed them voluntarily and in full awareness of the consequences. To that end, the requested person shall have the right to legal counsel.
3. The consent and, where appropriate, renunciation, as referred to in paragraph 1, shall be formally recorded in accordance with the procedure laid down by the domestic law of the executing Member State.
4. In principle, consent may not be revoked. Each Member State may provide that consent and, if appropriate, renunciation may be revoked, in accordance with the rules applicable under its domestic law. In this case, the period between the date of consent and that of its revocation shall not be taken into consideration in establishing the time limits laid down in Article 17. A Member State which wishes to have recourse to this possibility shall inform the General Secretariat of the Council accordingly when this Framework Decision is adopted and shall specify the procedures whereby revocation of consent shall be possible and any amendment to them.
Article 14
Hearing of the requested person
Where the arrested person does not consent to his or her surrender as referred to in Article 13, he or she shall be entitled to be heard by the executing judicial authority, in accordance with the law of the executing Member State.
Article 15
Surrender decision
1. The executing judicial authority shall decide, within the time-limits and under the conditions defined in this Framework Decision, whether the person is to be surrendered.
2. If the executing judicial authority finds the information communicated by the issuing Member State to be insufficient to allow it to decide on surrender, it shall request that the necessary supplementary information, in particular with respect to Articles 3 to 5 and Article 8, be furnished as a matter of urgency and may fix a time limit for the receipt thereof, taking into account the need to observe the time limits set in Article 17.
3. The issuing judicial authority may at any time forward any additional useful information to the executing judicial authority.
Article 16
Decision in the event of multiple requests
1. If two or more Member States have issued European arrest warrants for the same person, the decision on which of the European arrest warrants shall be executed shall be taken by the executing judicial authority with due consideration of all the circumstances and especially the relative seriousness and place of the offences, the respective dates of the European arrest warrants and whether the warrant has been issued for the purposes of prosecution or for execution of a custodial sentence or detention order.
2. The executing judicial authority may seek the advice of Eurojust (9) when making the choice referred to in paragraph 1.
3. In the event of a conflict between a European arrest warrant and a request for extradition presented by a third country, the decision on whether the European arrest warrant or the extradition request takes precedence shall be taken by the competent authority of the executing Member State with due consideration of all the circumstances, in particular those referred to in paragraph 1 and those mentioned in the applicable convention.
4. This Article shall be without prejudice to Member States’ obligations under the Statute of the International Criminal Court.
Article 17
Time limits and procedures for the decision to execute the European arrest warrant
1. A European arrest warrant shall be dealt with and executed as a matter of urgency.
2. In cases where the requested person consents to his surrender, the final decision on the execution of the European arrest warrant should be taken within a period of 10 days after consent has been given.
3. In other cases, the final decision on the execution of the European arrest warrant should be taken within a period of 60 days after the arrest of the requested person.
4. Where in specific cases the European arrest warrant cannot be executed within the time limits laid down in paragraphs 2 or 3, the executing judicial authority shall immediately inform the issuing judicial authority thereof, giving the reasons for the delay. In such case, the time limits may be extended by a further 30 days.
5. As long as the executing judicial authority has not taken a final decision on the European arrest warrant, it shall ensure that the material conditions necessary for effective surrender of the person remain fulfilled.
6. Reasons must be given for any refusal to execute a European arrest warrant.
7. Where in exceptional circumstances a Member State cannot observe the time limits provided for in this Article, it shall inform Eurojust, giving the reasons for the delay. In addition, a Member State which has experienced repeated delays on the part of another Member State in the execution of European arrest warrants shall inform the Council with a view to evaluating the implementation of this Framework Decision at Member State level.

Article 18
Situation pending the decision
1. Where the European arrest warrant has been issued for the purpose of conducting a criminal prosecution, the executing judicial authority must :
(a) either agree that the requested person should be heard according to Article 19 ;
(b) or agree to the temporary transfer of the requested person.
2. The conditions and the duration of the temporary transfer shall be determined by mutual agreement between the issuing and executing judicial authorities.
3. In the case of temporary transfer, the person must be able to return to the executing Member State to attend hearings concerning him or her as part of the surrender procedure.
Article 19
Hearing the person pending the decision
1. The requested person shall be heard by a judicial authority, assisted by another person designated in accordance with the law of the Member State of the requesting court.
2. The requested person shall be heard in accordance with the law of the executing Member State and with the conditions determined by mutual agreement between the issuing and executing judicial authorities.
3. The competent executing judicial authority may assign another judicial authority of its Member State to take part in the hearing of the requested person in order to ensure the proper application of this Article and of the conditions laid down.
Article 20
Privileges and immunities
1. Where the requested person enjoys a privilege or immunity regarding jurisdiction or execution in the executing Member State, the time limits referred to in Article 17 shall not start running unless, and counting from the day when, the executing judicial authority is informed of the fact that the privilege or immunity has been waived.
The executing Member State shall ensure that the material conditions necessary for effective surrender are fulfilled when the person no longer enjoys such privilege or immunity.
2. Where power to waive the privilege or immunity lies with an authority of the executing Member State, the executing judicial authority shall request it to exercise that power forthwith. Where power to waive the privilege or immunity lies with an authority of another State or international organisation, it shall be for the issuing judicial authority to request it to exercise that power.
Article 21
Competing international obligations
This Framework Decision shall not prejudice the obligations of the executing Member State where the requested person has been extradited to that Member State from a third State and where that person is protected by provisions of the arrangement under which he or she was extradited concerning speciality. The executing Member State shall take all necessary measures for requesting forthwith the consent of the State from which the requested person was extradited so that he or she can be surrendered to the Member State which issued the European arrest warrant. The time limits referred to in Article 17 shall not start running until the day on which these speciality rules cease to apply. Pending the decision of the State from which the requested person was extradited, the executing Member State will ensure that the material conditions necessary for effective surrender remain fulfilled.
Article 22
Notification of the decision
The executing judicial authority shall notify the issuing judicial authority immediately of the decision on the action to be taken on the European arrest warrant.
Article 23
Time limits for surrender of the person
1. The person requested shall be surrendered as soon as possible on a date agreed between the authorities concerned.
2. He or she shall be surrendered no later than 10 days after the final decision on the execution of the European arrest warrant.
3. If the surrender of the requested person within the period laid down in paragraph 2 is prevented by circumstances beyond the control of any of the Member States, the executing and issuing judicial authorities shall immediately contact each other and agree on a new surrender date. In that event, the surrender shall take place within 10 days of the new date thus agreed.
4. The surrender may exceptionally be temporarily postponed for serious humanitarian reasons, for example if there are substantial grounds for believing that it would manifestly endanger the requested person’s life or health. The execution of the European arrest warrant shall take place as soon as these grounds have ceased to exist. The executing judicial authority shall immediately inform the issuing judicial authority and agree on a new surrender date. In that event, the surrender shall take place within 10 days of the new date thus agreed.
5. Upon expiry of the time limits referred to in paragraphs 2 to 4, if the person is still being held in custody he shall be released.
Article 24
Postponed or conditional surrender
1. The executing judicial authority may, after deciding to execute the European arrest warrant, postpone the surrender of the requested person so that he or she may be prosecuted in the executing Member State or, if he or she has already been sentenced, so that he or she may serve, in its territory, a sentence passed for an act other than that referred to in the European arrest warrant.
2. Instead of postponing the surrender, the executing judicial authority may temporarily surrender the requested person to the issuing Member State under conditions to be determined by mutual agreement between the executing and the issuing judicial authorities. The agreement shall be made in writing and the conditions shall be binding on all the authorities in the issuing Member State.
Article 25
Transit
1. Each Member State shall, except when it avails itself of the possibility of refusal when the transit of a national or a resident is requested for the purpose of the execution of a custodial sentence or detention order, permit the transit through its territory of a requested person who is being surrendered provided that it has been given information on :
(a) the identity and nationality of the person subject to the European arrest warrant ;
(b) the existence of a European arrest warrant ;
(c) the nature and legal classification of the offence ;
(d) the description of the circumstances of the offence, including the date and place.
Where a person who is the subject of a European arrest warrant for the purposes of prosecution is a national or resident of the Member State of transit, transit may be subject to the condition that the person, after being heard, is returned to the transit Member State to serve the custodial sentence or detention order passed against him in the issuing Member State.
2. Each Member State shall designate an authority responsible for receiving transit requests and the necessary documents, as well as any other official correspondence relating to transit requests. Member States shall communicate this designation to the General Secretariat of the Council.
3. The transit request and the information set out in paragraph 1 may be addressed to the authority designated pursuant to paragraph 2 by any means capable of producing a written record. The Member State of transit shall notify its decision by the same procedure.
4. This Framework Decision does not apply in the case of transport by air without a scheduled stopover. However, if an unscheduled landing occurs, the issuing Member State shall provide the authority designated pursuant to paragraph 2 with the information provided for in paragraph 1.
5. Where a transit concerns a person who is to be extradited from a third State to a Member State this Article will apply mutatis mutandis. In particular the expression ‘European arrest warrant’ shall be deemed to be replaced by ‘extradition request’.

CHAPTER 3
EFFECTS OF THE SURRENDER
Article 26
Deduction of the period of detention served in the executing Member State
1. The issuing Member State shall deduct all periods of detention arising from the execution of a European arrest warrant from the total period of detention to be served in the issuing Member State as a result of a custodial sentence or detention order being passed.
2. To that end, all information concerning the duration of the detention of the requested person on the basis of the European arrest warrant shall be transmitted by the executing judicial authority or the central authority designated under Article 7 to the issuing judicial authority at the time of the surrender.
Article 27
Possible prosecution for other offences
1. Each Member State may notify the General Secretariat of the Council that, in its relations with other Member States that have given the same notification, consent is presumed to have been given for the prosecution, sentencing or detention with a view to the carrying out of a custodial sentence or detention order for an offence committed prior to his or her surrender, other than that for which he or she was surrendered, unless in a particular case the executing judicial authority states otherwise in its decision on surrender.
2. Except in the cases referred to in paragraphs 1 and 3, a person surrendered may not be prosecuted, sentenced or otherwise deprived of his or her liberty for an offence committed prior to his or her surrender other than that for which he or she was surrendered.
3. Paragraph 2 does not apply in the following cases :
(a) when the person having had an opportunity to leave the territory of the Member State to which he or she has been surrendered has not done so within 45 days of his or her final discharge, or has returned to that territory after leaving it ;
(b) the offence is not punishable by a custodial sentence or detention order ;
(c) the criminal proceedings do not give rise to the application of a measure restricting personal liberty ;
(d) when the person could be liable to a penalty or a measure not involving the deprivation of liberty, in particular a financial penalty or a measure in lieu thereof, even if the penalty or measure may give rise to a restriction of his or her personal liberty ;
(e) when the person consented to be surrendered, where appropriate at the same time as he or she renounced the speciality rule, in accordance with Article 13 ;
(f) when the person, after his/her surrender, has expressly renounced entitlement to the speciality rule with regard to specific offences preceding his/her surrender. Renunciation shall be given before the competent judicial authorities of the issuing Member State and shall be recorded in accordance with that State’s domestic law. The renunciation shall be drawn up in such a way as to make clear that the person has given it voluntarily and in full awareness of the consequences. To that end, the person shall have the right to legal counsel ;
(g) where the executing judicial authority which surrendered the person gives its consent in accordance with paragraph 4.
4. A request for consent shall be submitted to the executing judicial authority, accompanied by the information mentioned in Article 8(1) and a translation as referred to in Article 8(2). Consent shall be given when the offence for which it is requested is itself subject to surrender in accordance with the provisions of this Framework Decision. Consent shall be refused on the grounds referred to in Article 3 and otherwise may be refused only on the grounds referred to in Article 4. The decision shall be taken no later than 30 days after receipt of the request.
For the situations mentioned in Article 5 the issuing Member State must give the guarantees provided for therein.
Article 28
Surrender or subsequent extradition
1. Each Member State may notify the General Secretariat of the Council that, in its relations with other Member States which have given the same notification, the consent for the surrender of a person to a Member State other than the executing Member State pursuant to a European arrest warrant issued for an offence committed prior to his or her surrender is presumed to have been given, unless in a particular case the executing judicial authority states otherwise in its decision on surrender.
2. In any case, a person who has been surrendered to the issuing Member State pursuant to a European arrest warrant may, without the consent of the executing Member State, be surrendered to a Member State other than the executing Member State pursuant to a European arrest warrant issued for any offence committed prior to his or her surrender in the following cases :
(a) where the requested person, having had an opportunity to leave the territory of the Member State to which he or she has been surrendered, has not done so within 45 days of his final discharge, or has returned to that territory after leaving it ;
(b) where the requested person consents to be surrendered to a Member State other than the executing Member State pursuant to a European arrest warrant. Consent shall be given before the competent judicial authorities of the issuing Member State and shall be recorded in accordance with that State’s national law. It shall be drawn up in such a way as to make clear that the person concerned has given it voluntarily and in full awareness of the consequences. To that end, the requested person shall have the right to legal counsel ;
(c) where the requested person is not subject to the speciality rule, in accordance with Article 27(3)(a), (e), (f) and (g).
3. The executing judicial authority consents to the surrender to another Member State according to the following rules :
(a) the request for consent shall be submitted in accordance with Article 9, accompanied by the information mentioned in Article 8(1) and a translation as stated in Article 8(2) ;
(b) consent shall be given when the offence for which it is requested is itself subject to surrender in accordance with the provisions of this Framework Decision ;
(c) the decision shall be taken no later than 30 days after receipt of the request ;
(d) consent shall be refused on the grounds referred to in Article 3 and otherwise may be refused only on the grounds referred to in Article 4.
For the situations referred to in Article 5, the issuing Member State must give the guarantees provided for therein.
4. Notwithstanding paragraph 1, a person who has been surrendered pursuant to a European arrest warrant shall not be extradited to a third State without the consent of the competent authority of the Member State which surrendered the person. Such consent shall be given in accordance with the Conventions by which that Member State is bound, as well as with its domestic law.
Article 29
Handing over of property
1. At the request of the issuing judicial authority or on its own initiative, the executing judicial authority shall, in accordance with its national law, seize and hand over property which :
(a) may be required as evidence, or
(b) has been acquired by the requested person as a result of the offence.
2. The property referred to in paragraph 1 shall be handed over even if the European arrest warrant cannot be carried out owing to the death or escape of the requested person.
3. If the property referred to in paragraph 1 is liable to seizure or confiscation in the territory of the executing Member State, the latter may, if the property is needed in connection with pending criminal proceedings, temporarily retain it or hand it over to the issuing Member State, on condition that it is returned.
4. Any rights which the executing Member State or third parties may have acquired in the property referred to in paragraph 1 shall be preserved. Where such rights exist, the issuing Member State shall return the property without charge to the executing Member State as soon as the criminal proceedings have been terminated.
Article 30
Expenses
1. Expenses incurred in the territory of the executing Member State for the execution of a European arrest warrant shall be borne by that Member State.
2. All other expenses shall be borne by the issuing Member State.

CHAPTER 4
GENERAL AND FINAL PROVISIONS
Article 31
Relation to other legal instruments
1. Without prejudice to their application in relations between Member States and third States, this Framework Decision shall, from 1 January 2004, replace the corresponding provisions of the following conventions applicable in the field of extradition in relations between the Member States :
(a) the European Convention on Extradition of 13 December 1957, its additional protocol of 15 October 1975, its second additional protocol of 17 March 1978, and the European Convention on the suppression of terrorism of 27 January 1977 as far as extradition is concerned ;
(b) the Agreement between the 12 Member States of the European Communities on the simplification and modernisation of methods of transmitting extradition requests of 26 May 1989 ;
(c) the Convention of 10 March 1995 on simplified extradition procedure between the Member States of the European Union ;
(d) the Convention of 27 September 1996 relating to extradition between the Member States of the European Union ;
(e) Title III, Chapter 4 of the Convention of 19 June 1990 implementing the Schengen Agreement of 14 June 1985 on the gradual abolition of checks at common borders.
2. Member States may continue to apply bilateral or multilateral agreements or arrangements in force when this Framework Decision is adopted in so far as such agreements or arrangements allow the objectives of this Framework Decision to be extended or enlarged and help to simplify or facilitate further the procedures for surrender of persons who are the subject of European arrest warrants.
Member States may conclude bilateral or multilateral agreements or arrangements after this Framework Decision has come into force in so far as such agreements or arrangements allow the prescriptions of this Framework Decision to be extended or enlarged and help to simplify or facilitate further the procedures for surrender of persons who are the subject of European arrest warrants, in particular by fixing time limits shorter than those fixed in Article 17, by extending the list of offences laid down in Article 2(2), by further limiting the grounds for refusal set out in Articles 3 and 4, or by lowering the threshold provided for in Article 2(1) or (2).
The agreements and arrangements referred to in the second subparagraph may in no case affect relations with Member States which are not parties to them.
Member States shall, within three months from the entry into force of this Framework Decision, notify the Council and the Commission of the existing agreements and arrangements referred to in the first subparagraph which they wish to continue applying.
Member States shall also notify the Council and the Commission of any new agreement or arrangement as referred to in the second subparagraph, within three months of signing it.
3. Where the conventions or agreements referred to in paragraph 1 apply to the territories of Member States or to territories for whose external relations a Member State is responsible to which this Framework Decision does not apply, these instruments shall continue to govern the relations existing between those territories and the other Members States.
Article 32
Transitional provision
1. Extradition requests received before 1 January 2004 will continue to be governed by existing instruments relating to extradition. Requests received after that date will be governed by the rules adopted by Member States pursuant to this Framework Decision. However, any Member State may, at the time of the adoption of this Framework Decision by the Council, make a statement indicating that as executing Member State it will continue to deal with requests relating to acts committed before a date which it specifies in accordance with the extradition system applicable before 1 January 2004. The date in question may not be later than 7 August 2002. The said statement will be published in the Official Journal of the European Communities. It may be withdrawn at any time.
Article 33
Provisions concerning Austria and Gibraltar
1. As long as Austria has not modified Article 12(1) of the ‘Auslieferungs- und Rechtshilfegesetz’ and, at the latest, until 31 December 2008, it may allow its executing judicial authorities to refuse the enforcement of a European arrest warrant if the requested person is an Austrian citizen and if the act for which the European arrest warrant has been issued is not punishable under Austrian law.
2. This Framework Decision shall apply to Gibraltar.

Article 34
Implementation
1. Member States shall take the necessary measures to comply with the provisions of this Framework Decision by 31 December 2003.
2. Member States shall transmit to the General Secretariat of the Council and to the Commission the text of the provisions transposing into their national law the obligations imposed on them under this Framework Decision. When doing so, each Member State may indicate that it will apply immediately this Framework Decision in its relations with those Member States which have given the same notification.
The General Secretariat of the Council shall communicate to the Member States and to the Commission the information received pursuant to Article 7(2), Article 8(2), Article 13(4) and Article 25(2). It shall also have the information published in the Official Journal of the European Communities.
3. On the basis of the information communicated by the General Secretariat of the Council, the Commission shall, by 31 December 2004 at the latest, submit a report to the European Parliament and to the Council on the operation of this Framework Decision, accompanied, where necessary, by legislative proposals.
4. The Council shall in the second half of 2003 conduct a review, in particular of the practical application, of the provisions of this Framework Decision by the Member States as well as the functioning of the Schengen Information System.
Article 35
Entry into force
This Framework Decision shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Communities.

APPENDIX 2

ANNEX
EUROPEAN ARREST WARRANT (10)
This warrant has been issued by a competent judicial authority. I request that the person mentioned below be arrested and surrendered for the purposes of conducting a criminal prosecution or executing a custodial sentence or detention order.

►() M1 

(1) OJ C 332 E, 27.11.2001, p. 305.
(2) Opinion delivered on 9 January 2002 (not yet published in the Official Journal).
(3) OJ C 12 E, 15.1.2001, p. 10.
(4) OJ L 239, 22.9.2000, p. 19.
(5) OJ C 78, 30.3.1995, p. 2.
(6) OJ C 313, 13.10.1996, p. 12.
(7) OJ C 364, 18.12.2000, p. 1.
(8) Council Joint Action 98/428/JHA of 29 June 1998 on the creation of a European Judicial Network (OJ L 191, 7.7.1998, p. 4).
(9) Council Decision 2002/187/JHA of 28 February 2002 setting up Eurojust with a view to reinforcing the fight against serious crime (OJ L 63, 6.3.2002, p. 1).
(10) This warrant must be written in, or translated into, one of the official languages of the executing Member State, when that State is known, or any other language accepted by that State.