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Legal Minds

6 July 2018 / by / in

Can the European Arrest Warrant (‘EAW’) bring about political change?

The EAW was introduced in 2004 in order to streamline the extradition of wanted persons between EU member states. Unlike extradition requests from countries outside the EU, EAW requests are made through judicial channels rather than through government departments. However, despite it being a purely legal instrument, through decisions of the courts in extradition cases, there have been wider implications in political policies.

The UK has undoubtedly been the driving force in challenging other member states on the compliance of their prison estates with Article 3 of the European Convention on Human Rights. The UK courts have previously refused extradition, or asked for further information on prison conditions, from countries such as Italy, Bulgaria, Belgium, Hungary, Romania, Lithuania and Portugal.

This has resulted in issuing states engaging with the UK extradition proceedings by either providing an assurance that the requested persons would not go to (a) certain prison(s) or by providing further information as to what has been done to combat overcrowding. Whilst organisations such as the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (“CPT”) are influential in exerting pressure on member states to undertake prison reform, it is clear that the decisions of the UK courts increased pressure to act on recommendation by organisations such as the CPT. By refusing to extradite to countries where prisons are overcrowded, dilapidated and dangerous, the UK courts have caused member states to take political steps to tackle these problems to avoid the frustration of not being able to secure the extradition of wanted persons. This has had the indirect consequence of improving conditions of detention for prisoners within the EU.

However, it is not only prisons conditions that have been challenged through the EAW system. The Irish courts in the extradition case of Celmer have referred the matter to the Court of Justice of the European Union (‘CJEU’) because recent legislative changes in Poland have been “so immense” that Ireland’s high court had been forced to conclude that the rule of law in Poland had been “systematically damaged”, undermining the “mutual trust” that underpinned the European arrest warrant process.

Last week, the Lord Chief Justice, sitting in the UK High Court, heard a challenge that the legislative changes would result in a flagrant denial of justice in breach of Article 6 European Convention on Human Rights (‘ECHR’).

Poland has, so far, been resistant to calls from the European Commission to engage in conversation to address the growing concern caused by these changes. There has been no appetite to introduce sanctions against Poland by the Commission, and owing to the current political instability of the EU, there has been an understandable reluctance to ‘interfere’ too strongly. This could mean that the forum to exert pressure to enact change is through the judiciary of member states. If extradition to Poland is refused by the courts in executing states, this would put Poland in the undesirable position of not being able to secure the extradition of wanted persons. This would no doubt be unpopular at home as Poland would be seen as a ‘soft touch’; criminals could commit offences before simply fleeing to another EU country safe in the knowledge that they would not be extradited back to Poland to face punishment. This could provide the right incentive to bring Poland to the negotiating table.

Whilst Theresa May has indicated that she wants the UK to remain a part of the EAW system when the UK leaves the EU, it remains to be seen whether this is possible. Deep divisions between the UK and EU on matters such as the jurisdiction of the CJEU would likely make this unworkable. What is clear is that, if the UK does not remain a part of the EAW, it will lose more than just access to a streamlined extradition system.

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