Improving the effectiveness of the European Arrest Warrant: promoting knowledge, cooperation and trust to protect fundamental rights in the EU

The European Arrest Warrant in this new reality

As in other cases, existing difficulties related challenges related to the use of the European Arrest Warrant (EAW) were considerably exacerbated or added to by the COVID-19 pandemic, leading to severe impacts and to additional complications in the field of judicial cooperation among EU Member States (vi). An unpredictable global scenario and serious health concerns notably caused an increase of particularly complex surrenders, namely due to force majeure reasons. 

According to Fair Trials, difficulties in remote cases hinder observance of fundamental and procedural rights, especially the right to a fair trial, the right to examine evidence and witnesses, the right to confidential consultation with a lawyer and the right to be present at the hearing.

Additionally, these new problems cannot be properly addressed if there is not a consideration for additional issues that encircle the EAW, mainly, its sub-optimal and disproportionate use. Eurojust as underlined the fact that the “the EAW […] does not provide for the possibility of evaluation of the proportionality of an EAW by the executing Member State”. 

Ultimately, this has serious implications for suspects, including deportation, separation for the person’s families, potential employment loss. Finally, the suspect may not be able to express themselves in the language of the country in which they are being prosecuted in. This situation is worsened by the wide scope of application of the instrument which, coupled with its streamlined procedures, creates conditions for its current widespread usage.

Finally, promoting a more proportional use of the EAW means a need to observe the possibility of the use of other European, less intrusive instruments, which may constitute a solution to some of the reasons basing the issuing of the EAW. Among these, special consideration should be given to FDs 2009/829 (European Supervision Order [EIO]), which could pose an alternative in the case of prosecution purposes, the European Investigation Order (EIO), that includes a provision calling on authorities to consider using it instead of an EAW as well as, to a lesser extent, FD 2008/947 (Probation and alternative sanctions), which could be considered in the context of the execution of sentences and in pursuit of the rehabilitation of the requested person. 

In this sense, the European Parliament Research Service In this sense, the European Parliament Research Service has drawn attention to the importance of considering the EAW as “a subsidiary measure to other, less intrusive options, in the spirit of a common EU criminal justice area”.

As an example, the latest data stemming from the European Commission indicates that, in 2021(vii), a total number of 14,789 EAWs were issued. Of these, 27.68% for the purpose of prosecution, while 72.31% for the purposes of the execution of a sentence of a detention order. According to these numbers, one may wonder if those 27.68% could have been addressed through other instruments, namely the EIO and ESO.