The European Arrest Warrant (EAW), meant to speed up the process of extradition in the EU, depends on a country’s willingness to trust another country’s legal system. Yet this shared recognition of judicial decisions without a shared recognition of fundamental rights is compromising and drawing criticism to the entire system.
In 2009 Edmond Arapi, a UK citizen, was arrested at Gatwick Airport on an EAW from Italy. He was wanted to serve time for a murder Italian courts found him guilty of in 2004. Both the trial and the appeal took place without his knowledge. On the day the murder took place in Genoa, Italy, Arapi was in the UK working in a café. Although he had extensive proof that he could not have committed the crime, the UK court ruled in favor of the extradition. It wasn’t until a year later that Italy withdrew the EAW, admitting it was a case of mistaken identity, as Arapi’s fingerprints did not match the ones found at the crime scene.
Arapi’s case is one of many that highlights the problems with trusting the judicial decisions made by other countries.
A quick and easy process
The way the warrant works is quick and easy. In fact, that was the point of creating a new extradition system. There were a lot of checks and balances within the old law, making it a long and difficult process. The plan for a new one had been in the works since the late 90s then came 9/11. Afterwards it became very clear that a better system for dealing with serious crimes, such as terrorism, was necessary. In turn, the law was fast-tracked and became fully functioning in 2003.
Any country that needs somebody to serve trial or a prison term for a serious crime can issue an EAW. The country who receives the EAW has to process the request within 90 days and surrender the citizen.
Massimo Fichera, a researcher who specializes in European criminal law at the University of Helsinki, says that the EAW doesn’t explicitly say anything about human rights. Instead, it assumes that the countries abide by the European Convention on Human Rights (ECHR), and that’s where the issues come from.
“Even if you have this charter at the European level, it doesn’t mean the standards are the same in every country. The way that these rights are implemented is very different from country to country,” says Fichera.
He says that even things like the right to a fair trial are seen differently at national levels. All countries have their own definition of what a fair trial actually means. This explains why Arapi never found out that there had been a trial against him until it was too late. Italy and the UK obviously have very different definitions of right to a fair trial.
“This is a system built on blind faith,” says Catherine Heard, head of policy at Fair Trials International.
“Before you can have this kind of trust you need to build a solid foundation. We are a long way from a Europe that has the same standards in every country,” says Heard.
Resistance from European countries
Since the implementation of the EAW in 2003, four countries including Poland, Germany, Italy and Cyprus, have claimed that the warrant goes against their national constitutions.
Although the arguments against the law are different, they agree that the implementation of the warrant clashes with the fundamental rights of EU citizens.
Italy, the last founding EU member to put the law into practice only did so after amending the framework decision so that it allowed the Italian courts more reasons to deny an EAW.
Similar actions have been taken by a lot of other countries as well. In the Netherlands and Germany, for example, an EAW can be refused if there is solid evidence that a surrender may result in a breach in that person’s fundamental human rights.
Yet there aren’t a lot of cases of countries who deny a warrant based on human rights. Heard says the reason countries usually don’t question warrants is that they are likely to be criticized and punished if they do.
Germany is an interesting case because it actually applies its own test of proportionality, whether the punishment matches the severity of the crime, when deciding whether or not to comply with an EAW.
A need for reform
“It’s simply not good enough to let countries assess proportionality on a case by case basis,” says Heard who argues that the law needs to be changed so countries like Poland, who don’t have a proportionality test, don’t have to issue an EAW for petty crimes. Under national law, Poland has to pursue every wanted person.
Heard argues that because the law was fast-tracked, these small but important things weren’t taken into consideration. It doesn’t make sense for countries to extradite someone based on something like theft. Heard says that’s where proportionality comes in, judicial systems shouldn’t be wasting time and money pursuing people who aren’t really causing problems.
Fichera agrees with Heard and suggests that the European Court of Justice should give general guidelines for countries to assess the proportionality of an EAW.
“If every country just starts applying proportionality in their own way, we’re back to the same problem,” says Fichera.