The research project concerns the application of Article 4a of Framework Decision 2002/584/JHA on the European Arrest Warrant (EAW). This provision was inserted by Framework Decision 2009/299/JHA (“in absentia EAW Framework Decision”) on the mutual recognition of in absentia decisions and it seeks to enhance the procedural rights of persons subject to criminal proceedings, to facilitate judicial cooperation in criminal matters and, in particular, to improve mutual recognition of judicial decisions between Member States.
Article 4a of the in absentia EAW Framework Decision contains an optional ground for refusal to execute a European Arrest Warrant concerning a judgment rendered following a trial at which the requested person did not attend in person (judgment in absentia). The objectives of Article 4a are to be attained by harmonising the laws of the Member States regarding refusal to execute EAW’s concerning judgments in absentia.
The InAbsentiEAW research project aims at identifying and solving problems which arise in the application of Article 4a of the European Arrest Warrant Framework Decision in practice and which detract from attaining a fair and smooth execution of in absentia EAWs.
Problems with Article 4a on in absentia trials
In many cases the application of Article 4a has led in the past – and still leads at present – to numerous practical and legal problems. The main problems are that the issuing authorities:
- do not fill in part D of the model-EAW (which part relates to Article 4a),
- do not use the prescribed standard text of part D,
- do not use the consolidated language versions of part D, but instead use (poorly) translated texts or
- provide incorrect, unclear, unintelligible or contradictory information.
- necessitate the executing judicial authority requesting the issuing judicial authority to clear up matters (sometimes repeatedly),
- lead to delays and extra costs in the issuing and executing Member States, and
- in some cases, result in a – sometimes even unjustified – refusal to execute the EAW (unjustified in the sense that had the information supplied by the issuing judicial authority been correct, clear, consistent and complete the EAW would have been executed), thereby creating a risk of impunity of the requested person, and
- can result in an unjustified surrender (unjustified in the sense that had the information been correct, clear, consistent and complete the execution of the EAW would have been refused).
Clearly, such problems prevent the in absentia EAW Framework Decision from realising not only its objectives of facilitating judicial cooperation in criminal matters and improving mutual recognition of judicial decisions, but also its objective of enhancing procedural rights and can even lead to impunity of the requested person. Moreover, such problems can have a negative effect on the high level of mutual trust that should exist between the (judicial authorities of the) Member States. For instance, cases in which the issuing authorities provide incorrect information can affect the confidence of the executing judicial authorities in the correct application of Union legislation by the issuing judicial authorities. Also, asking for information when there is no need for this information can affect this confidence. Improving mutual recognition, which is one of the objectives of the in absentia EAW Framework Decision, is dependent on mutual trust between the (judicial authorities) of the Member States.
The above-mentioned problems may be caused by:
- non-implementation of the in absentia EAW Framework Decision by the Member States (the Framework Decision contains an optional ground for refusal; if the executing Member State has implemented the in absentia EAW Framework Decision, where the issuing Member State has not, the executing judicial authority will expect the issuing authority to apply Article 4a, while the issuing judicial authority will not apply this provision, because it has not yet been transposed into the national laws of the issuing Member State).
- differences concerning the implementation (including implementation as an optional or mandatory ground for refusal) by the Member States and/or differences concerning application of the implementing legislation by issuing and executing judicial authorities of the Member States (for instance concerning the type information supplied by the issuing judicial authority and/or of information requested by the executing authority; concerning the way in which the issuing judicial authority interprets a request for information by the executing judicial authority and the way in which the executing judicial authority interprets the information provided by the issuing judicial authority);
- incorrect implementation by the Member States and/or incorrect application by issuing and executing judicial authorities of the Member States;
- the fact that a refusal of surrender based on Article 4a will not nullify the judgment in absentia; in case of refusal the person sought is still at risk to be apprehended in and surrendered by another Member State.
Research has shown that difficulties in applying Article 4a arise in a substantial number of all in absentia EAWs, which leads to complications for both on the side of the executing and of the issuing authority.
The complications could be a result of:
- the application of national legislation by the issuing or executing judicial authorities and/or;
- the national legislation of the issuing or executing Member State implementing the Framework Decision and/or;
- the Framework Decision itself.
There is clearly a need to establish which of these factors causes the complications and to develop common standards and practices to prevent the complications from arising, against the background of the right to a fair trial.
On the basis of the results of a questionnaire the practical problems that judicial authorities of other Member States face and the roots of these problems will be identified. Common standards, practical tools and best practices for solving these problems will be developed and, where applicable, recommendations to the EU or to the Member States shall be made.
The project should attain the following:
- formulate common interpretations of the relevant provisions and terms, taking into account the case law of the Court of Justice of the European Union and the ECtHR on the rights of the defence in criminal proceedings; develop common best practices and practical tools against the background of these common interpretations;
- formulate proposals to adjust national legislation; and
- formulate proposals to adjust the EAW Framework Decision.
Thereby, the research project will contribute to improving the issuing and execution of EAW’s for the purpose of execution of in absentia judgments, improving mutual trust between (the judicial authorities of the) Member States, improving mutual recognition of EAW’s, and enhancing procedural rights.