European Criminal Law Dissertation - Proportionality and the European Arrest Warrant | Critical Essays

European Criminal Law Dissertation – Proportionality and the European Arrest Warrant

To what extent is the concept of proportionality relevant for the purpose of law when issuing, adjudicating and executing the European Arrest Warrant?

 

INTRODUCTION

The concept of proportionality is an ever-present subject of rich academic reflection. The legal theory in this field outlines multiple approaches but also difficulties associated with the meaning and application of proportionality within various legal spheres.[1]

Thus, this analysis seeks to explore the meaning of proportionality and examine how it has been used as a balancing tool within the European Arrest Warrant (EAW) context. Since many general principles of law as applied by the Court of Justice of the European Union (CJEU) have been adopted from German law, a comparative analysis of different notions of proportionality is presented.

The aim is to explore the puzzling issue of the disparate use of proportionality and its impact on human rights when issuing, adjudicating and executing the EAW across the Member States (MSs). The intention is to demonstrate the importance of proportionality as being a key to reforming the surrender procedures in the EU and to highlight the increasing risk and danger in moving blindly forward with the fast-track ‘no questions asked’ extradition regime at the expense of the rights of individuals involved.[2]

The subject that surrounds this area of investigation is extremely complex, therefore, the research question has been narrowed down to:  Why does the issue of proportionality arise in the context of the EAW, is it to generate a more protective process for human rights?

Methodologically, as to consider the above issues, the content of the Framework Decision of 13 June 2002 on the European Arrest Warrant and the surrender procedures between Member States (FDEAW) as well as the national case law are taken as a case study. It has been decided to mainly concentrate on concrete evidence of the impact of the EAW on human rights, particularly, when rights enshrined in the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) are invoked.

Hence the analysis is divided into three main chapters. The first chapter provides an overview of the diverging concepts of proportionality as applied by the CJEU, the European Court of Human Rights (ECtHR) and national courts. The intention is to establish whether or not the principle has a substantial meaning. This is in many ways the chapter on which this paper is based, as it attempts to demonstrate the practical approach of judges to the concept of proportionality when they attempt to struck in the best possible way a balance between individual rights and public interests.

The second chapter aims to provide guidance throughout the historical journey of the EAW from its formation in 2002 to the more recent years of its operation. This chapter focuses on the general influence of the EAW on the changing landscape of the extradition procedures in the EU. It aims to demonstrate a divergent use of the EAW at the issuing time.

Finally, the last chapter centres on the development of the case law with regards to the application of the proportionality principle when adjudicating and executing the EAW in the UK and Germany. This is being tested against the human rights aspects with a special focus on the right to respect for family life and the landmark judgment in HH[3].

CHAPTER I  

A prudent place to begin this discussion is with the definition of proportionality. Defining the scope and meaning of proportionality appears to be a tricky task as the concept is being used concurrently by scholars, judges and journalists across the broad spectrum of legal fields. At its most abstract level, proportionality may be defined as the principle which requires actions to be proportionate to the objectives pursued.[4] Given this rather vague notion of proportionality, it seems necessary to first set the scene by providing a complete synopsis of historical background and different notions of proportionality before embarking on an exploration of this concept in light of the EAW.

In Europe, the concept of proportionality emerged initially in German law and the Kreuzberg case.[5] In 1882 the Prussian Supreme Administrative Court applied proportionality to scrutinize the legitimacy of government and police interference in the sphere of social and economic life.[6] Thus, the principle was first applied within administrative law.[7] Its narrow interpretation revealed that any interference on the part of national authorities must prove to be suitable and necessary in order to attain the intended objectives.[8] As a result of that process, proportionality has rapidly grown to the ranks of ‘an unwritten constitutional rule’[9] governing all administrative actions.

The concept of proportionality appears to be so logical that one would expect it to be also recognised in the common law. Some commentators argue that the Wednesbury unreasonableness test is a milder version of the proportionality principle.[10] The above test was developed in the case of Associated Provincial Picture House Ltd v Wednesbury Corporation.[11] In this instance, the corporation allowed Sunday openings for the appellant’s cinema, however, did not permit entry to persons under 15.[12] The appellants claimed that the restriction was unreasonable; however, the matter was left to be determined by the corporation. Lord Greene held that ‘it is true to say that if a decision on a competent matter is so unreasonable that no reasonable authority could ever have come to it, then the court can interfere.’[13]

Sir John Laws has given rather interesting description of the case concerned by stating that the above test is ‘the legal equivalent of Beethoven Fifth’ Symphony: it has been hackneyed through no fault of its own’.[14] In line of this musical reasoning it seems appropriate to conclude that it is rather ‘Schubert Unfinished Symphony’ as the scope of the test, while undergoing constant modifications, is still open to further and richer developments.[15]

Nonetheless, the most substantial contribution to the development of the proportionality principle in other European legal systems as well as in the ECtHR and the CJEU jurisprudence has well been made by the German’s formulation of proportionality, where the principle originated.[16]

Without any doubt, proportionality has been of considerable importance in the application of the ECHR. It was first introduced into the Strasbourg Court’s jurisprudence in 1968 by the case of Belgian Linguistics where it was held that ‘Article 14 is likewise violated when it is clearly established that there is no reasonable relationship of proportionality between the means employed and the aim sought to be realized’.[17] Even though, the Convention itself does not make any explicit reference to proportionality in a strict sense, the concept has been developed and extensively interpreted in the ECtHR’s case law.[18]

The Strasbourg Court has interpreted, both, the qualified and the absolute Convention rights, as embodying a proportionality requirement.[19] The qualified rights assert that a certain degree of interference with their provisions is permitted.[20] However, such interference must be considered as ‘necessary in a democratic society and be applied for a promotion of defined interests’.[21] A fitting example is Article 8 which provides:

‘1.Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.’

When determining whether an interference with an individual’s private life is necessary, the Strasbourg Court is required to assess whether the means for attaining that aim are proportionate.[22] In addition, the interference must be ‘strictly necessary and no more than is absolutely necessary’.[23]

Furthermore, as mentioned above, not every Convention’s Article falls within the catalogue of qualified rights as some of them place states’ actions under a stricter condition such as ‘absolutely necessary’.[24] For instance, Article 6 of the Convention-the right of access to court, or Article 2–the right to life do not permit any restriction within their provisions.[25]

The concept of proportionality is, therefore, often used to evaluate both the means and the side effects of the state’s action. Occasionally, proportionality may also be applied within the limitation clause to determine the legitimacy of the state’s objective.[26] This is clearly illustrated when looking at the Strasbourg Court’s jurisprudence.

In Dudgeon[27], proportionality was used to examine the means adopted by Northern Ireland ‘to preserve public order and decency when regulating homosexual conducts through the criminal law.’[28] Mr Dudgeon was homosexual and argued that he was liable to criminal prosecution which, consequently, led to interference with his private life under Article 8 ECHR.

In its reasoning, the Strasbourg Court held that ‘the maintenance in force of the impugned legislation constitutes a continuing interference with the applicant’s right to respect for his private life (which includes his sexual life) within the meaning of Article 8 (1).’[29] To a certain extent, regulation of some of the homosexual acts through the means of criminal law may be ‘justified as necessary in a democratic society’. The reason for this is that the criminal law’s overall function is to ‘preserve public order and decency and to protect the citizen from what is offensive or injurious’[30].

The crux of the question is whether the challenged legislation remains within the reasonable boundaries of what may be viewed as necessary for attaining the safeguarding objectives in a democratic society.[31]  There must be ‘a pressing social need for the interference in question’.[32] In the exercise of the margin of appreciation, it is for the Contracting States to examine the social need in each case individually in order to determine whether there are important reasons for justifying the interference with Article 8.[33]

The ECtHR emphasised that the adopted measure must be considered in light of the Irish society which is more conservative and where religious aspects play a significant role. However, it was also submitted that since ‘no evidence has been adduced to show that this has been injurious to moral standards in Northern Ireland (..), it cannot be maintained (..) that there is a ‘pressing social need’ to make such acts criminal offences. On the issue of proportionality, the Court considers that such justifications as there are for retaining the law in force unamended are outweighed by the detrimental effects which the very existence of the legislative provisions in question can have on the life of a person of homosexual orientation like the applicant. Although members of the public who regard homosexuality as immoral may be shocked, offended or disturbed by the commission by others of private homosexual acts, this cannot on its own warrant the application of penal sanctions when it is consenting adults alone who are involved.’[34] Therefore, the argument in this case was not ‘that the aim of such criminal legislation was not legitimate, but rather that the means employed were disproportionate to the aim’.[35] 

Another fitting example is the Otto-Preminger case concerning films which contained ‘provocative portrayals of objects of religious veneration’. Austria regarded such films as distasteful and a court ordered to destroy them.[36] The applicant, who managed a private cinema, claimed that Article 10 ECHR – the right to freedom of expression was violated. Article 10, likewise Article 8, is a qualified right. The Strasbourg Court, by majority of 6 to 3, rejected the applicant’s claim and ruled that Article 10 had not been infringed.[37]

In their reasoning, the majority of six judges referred to Article 9 ECHR – the right to freedom of thought, conscience and religion which was balanced against Article 10.[38] They held that believers ‘must tolerate and accept the denial by others of their religious beliefs and even the propagation by others hostile to their faith’.[39] It was further accepted that Article 10 could apply to ideas which, on some occasions, may be shocking or disturbing but it must also be borne in mind that there is an ‘obligation to avoid as far as possible expression that are gratuitously offensive to others’.[40]

Therefore, any prevention of displaying provocative portrayals of religious objects must be proportionate to the desired and legitimate aim.[41] Given the differing views amongst the Contracting States on the role and importance of religion, it is for the national authorities to exercise the margin of appreciation in order to decide whether the prohibition of such films was necessary in the interests of a particular society. Subsequently, it was held that there was no violation of Article 10.

The minority of judges were, however, of a different view. They disagreed that the margin of appreciation should apply to an outright ban as there were less restrictive measures available. According to them, the prohibition was not proportionate.[42] The judges applied more instructive proportionality test and asserted that it was not enough to conclude that the above mentioned rights were in conflict.[43]

They submitted that Article 10 provisions constitute a fundamental feature of a democratic society and that ‘tolerance works both ways: those seeking to exercise freedom of expression had to limit the offence they might cause’.[44] Furthermore, any restriction imposed on Article 10 must be proportionate and a complete prohibition could only be justified in cases where those who exercise such freedoms cause severe abuse.[45] Having referred to the facts at stake, the judges emphasised that it was a small cinema which would only attract a small audience interested in watching the films. As a result, a complete ban should not apply.

In the present case, the ECtHR demonstrates a remarkable approach to proportionality. The proportionality test as applied by the minority of judges was made of two separate assessments. The qualitative assessment involved a consideration of two of the Convention’s rights in question. It was stated that Article 10 provisions carried a great weight and ‘any risk that the restrictions on exhibiting the film would not be adequate to prevent public disorder was thus outweighed by the value placed on the applicant’s right to freedom of expression’.[46] The second assessment required the application of the actual facts of the case in order to determine whether the rights could be reconciled.[47]

On the other hand, the majority of judges submitted that in cases where the Contracting States express differing views on particular issues, such as religious beliefs, the Court is likely to grant a wide margin of appreciation. This, however, does not apply to commonly shared values.[48]

It should also be pointed out that, neither the majority nor the minority of judges mention anything about ‘no more than necessary’ or ‘least intrusive means’ as a test necessary for carrying out the proportionality assessment.[49]The least intrusive means’ condition is often used by the ECtHR as a part of the balancing exercise.[50] This will be of particular importance when looking at the CJEU jurisprudence. It appears reasonable to conclude, that the flexibility of the proportionality principle demonstrated by the Strasbourg Court case law is in line with a rather subsidiary function of the Court itself, as it is commonly held that primary obligations for giving effect to the Convention rights is placed on the Contracting States. [51]

This triggers the question as to whether the proportionality principle applied by the Strasbourg Court differs from the principle applied by the CJEU, if at all. It appears that the CJEU usually applies the proportionality test abridgment of that developed by the German court. A version of the principle has now been explicitly consecrated not only in Article 5(4) of the Treaty on the European Union (TEU) according to which ‘under the principle of proportionality, the content and form of Union action shall not exceed what is necessary to achieve the objectives of the Treaties’ but also in a designated Protocol No 2 on the Application of the Principles of Subsidiarity and Proportionality. Article 5, however, does not constitute a codification of the CJEU jurisprudence and its likely impact seems to be limited or at least secondary in practice. [52]

Hence, the meaning of proportionality has been primarily developed throughout the CJEU case law. As it will be further demonstrated, the CJEU often investigates whether the adopted measures are suitable and appropriate for attaining the intended objectives and whether there other less restrictive measures available.[53] In this connection, it has been observed that the German’s proportionality formulation also exists in EU law.[54] However, it remains uncertain as to whether the third part of this formulation which refer to proportionality in a strict sense, is also to be found in EU law.[55] The Court’s jurisprudence does not seem to provide a clear answer. Nonetheless, whenever the suitability and necessity conditions are satisfied, the measure in question is considered to be legal, regardless of the fact that the burden imposed may be disproportionate to the objectives pursued.[56]

Furthermore, the CJEU’s approach to the proportionality principle does not necessarily imply the strict application of the above analysis. In certain circumstances, where the CJEU is asked to examine a domestic measure related to, for instance, public health, it is likely that the Court will refer to the formulation of manifestly inappropriate/disproportionate measure.[57]

There appears to be a considerable number of cases which could offer empirical evidence specifying the way and the manner in which the CJEU interprets and applies the proportionality principle in practice.

The most celebrated case in relation to the development of the proportionality principle is Internationale Hendelsgesellschaf where it was held that ‘a public authority may not impose obligations on a citizen except to the extent to which they are strictly necessary in the public interest to attain the purpose of the measure’.[58] The ruling in this case established proportionality as a ground of review.[59] Furthermore, the Court defined the fundamental rights as the EU law principles: ‘in fact, respect for fundamental rights forms an integral part of the general principles of law protected by the Court of Justice’.[60] 

The notion of proportionality was further articulated in the Fedesa case where a Council Directive which aimed ‘to remove distortions of competition and barriers to trade resulting from differences in Member States’ legislation on the administration to farm animals of certain substances having a hormonal action’ was challenged.[61] It was argued that the Directive violated proportionality and it was not suitable for achieving the desired aims. The Directive was impossible to be applied in practice and flourished black markets in trading hormones.[62] It was further claimed that an outright ban was unnecessary and distribution of detailed labelling and information to consumers would have been sufficient enough in order to alleviate consumers’ anxieties.[63]

The CJEU acknowledged ‘that the principle of proportionality is one of the general principles of Community law. By virtue of that principle, the lawfulness of the prohibition of an economic activity is subject to the condition that the prohibitory measures are appropriate and necessary in order to achieve the objectives legitimately pursued by the legislation in question; when there is a choice between several appropriate measures recourse must be had to the least onerous, and the disadvantages caused must not be disproportionate to the aims pursued.’[64]

However, with regard to judicial review of compliance with those conditions it must be stated that in matters concerning the common agricultural policy the Community legislature has a discretionary power which corresponds to the political responsibilities given to it by Articles 40 and 43 of the Treaty. Consequently, the legality of a measure adopted in that sphere can be affected only if the measure is manifestly inappropriate having regard to the objective which the competent institution is seeking to pursue’.[65]

The applicants in this case were required to demonstrate that the measure in question was manifestly inappropriate, however, the Court held that they had not discharged this burden.[66] The CJEU concluded that the adopted measure was suitable for the declared objectives and that it satisfied the necessity requirement. The Council, having taken into consideration health protection, was entitled to hold a view that the elimination of barriers to trade and distortions of competition could not be attained through less restrictive measures, such as the distribution of leaflets to consumers.[67] Although this line of reasoning is present in the CJEU’s case law, the manifestly disproportionate test is usually applied as an alternative. [68]

The analysis so far has been related to the cases where the proportionality principle is applied in light of the discretionary policy choice, however, it is also important to briefly mention cases concerning the CJEU’s approach in light of human rights.

A fitting example is illustrated by the case of Schmidberger which related to an environmental group protesting on one of the major motorways in Austria. As a result of that protest, the motorway was closed for thirty hours.[69] Schmidberger, a transport company, complained that this constituted breach of free movement of goods.[70] The CJEU was asked to examine the limits of the then Article 28 EC on free movement and Articles 10 and 11 ECHR relating to freedoms of expression and assembly; and the relation between these rights and Article 28.[71] The findings of the CJEU were that ‘neither the freedom of expression nor the freedom of assembly guaranteed by the ECHR appears to be absolute but must be viewed in relation to its social purpose. Consequently, the exercise of those rights may be restricted, provided that the restrictions in fact correspond to objectives of general interest and do not, taking account of the aim of the restrictions, constitute disproportionate and unacceptable interference, impairing the very substance of the rights guaranteed’.[72]

There appears to be some uncertainty in the formulation of ‘disproportionate and unacceptable interference, impairing the very substance of the rights guaranteed’.[73] The last part of this phrase embraces the significant idea that a restriction should not be considered as lawful if it undermines the essence of the guaranteed right.[74] On the contrary, it may also be interpreted that a restriction may be considered as lawful so long as it does not infringe the essence of the right. It appears that the second connotation is more likely to be accepted.[75]

Additionally, with the entry into force of the Lisbon Treaty, and thereby the legally binding status of the EU Charter, Article 52(1) makes it clear that there is an obligation on the EU to comply with the ECHR. [76] In light of this Article ‘any limitation on the exercise of the rights and freedoms recognized by this Charter must be provided for by law and respect the essence of those rights and freedoms. Subject to the principle of proportionality, limitations may be made only if they are necessary and genuinely meet objectives of general interests recognized by the Union or the need to protect the rights and freedoms of others’. Thus, the Article clarifies that any restriction should respect the essence of the guaranteed right, and that even if it does so it will only be deemed lawful if it is ‘proportionate, necessary and in general interests’.[77]

Undoubtedly, the CJEU’s far reaching law-making and adjudicating function implies that there are distinguishable ways in which the proportionality principle is applied and interpreted. The way in which the CJEU decides on such interpretation is, to a great extent, dependent upon the areas it is utilised in.[78] The above analysis demonstrates that the proportionality principle is not ‘a simple judicial tool but rather a highly sophisticated tool’.[79] It may also be argued that the CJEU appears to use a more structured version of proportionality than the Strasbourg Court.

Subsequently, this leads to the last section of the proportionality’s analysis which is placed in the context of criminal law. Proportionality in ‘criminal law traditionally forms part of the sentencing processes.[80] Article 49(3) of the EU Charter requires that ‘the severity of penalties must not be disproportionate to the criminal offence’. Obviously, the proportionality principle in criminal law differs significantly from the traditional EU principle. It is clear that the latter has primarily been seen as a norm operating on a prospective basis and requires proportionality between ‘means and ends’ while taking into account future and potential effects on EU law. [81] The former, on the other hand, has been operating on a retrospective basis as it requires the punishment to be proportionate to the gravity of the offence in question and it is, therefore, restricted to the facts at hand.[82]  Proportionality in the context of criminal law is discussed in great details in chapter III, where a comparative analysis of national courts’ case law is presented.

To put if briefly, this chapter aimed at offering some preliminary background of the concept of proportionality as applied by different actors in different contexts. It appears evident that proportionality, originally conceived as a tool for improving administration, acquired, over time, the role of establishing a functional relationship between the means and ends. However, it has also been presented that the main European Courts, the CJEU and the ECtHR, have developed distinct proportionality tests. While the former seems to follow the German’s proportionality contours and applies proportionality to the EU and national measures covering, both, legislative and administrative actions, the latter adopts a simple test of balancing means and aims which is, to a great extent, supplemented by the margin of appreciation exercised by the Contracting States.

Chapter II

The EAW beginnings may be traced back to the Tampere European Council Conclusions of October 1999 where the European area of freedom, security and justice started to materialize.[83] At paragraph 33 of the Conclusions it is stated that ‘the European Council … endorses the principle of mutual recognition which, in its view, should become the cornerstone of judicial co-operation in both civil matters within the Union. The principle should apply both to judgments and to other decisions of judicial authorities (…) With respect to criminal matters, the European Council… considers that the formal extradition procedure should be abolished among the Member States as far as persons are concerned who are fleeing from justice after having been finally sentenced, and replaced by a simple transfer of such persons, in compliance with Article 6 TEU’.

The idea was, therefore, to create a genuine area where the decisions would have an equivalent effect throughout the EU.[84] Furthermore, the new transfer of requested persons was designed to replace the slow and often cumbersome extradition regime with more effective and accelerated system involving minimum of formalities.[85] The negotiations process was, however, relatively slow as there was a remarkable lack of agreement between the MSs to abolish the double criminality rule and to eliminate the involvement of the executive organs.[86]. Consequently, no definitive results were achieved. It was not until the 9/11 terrorists’ attacks that the political pressure urged to bring some normative changes. As a result, the EAW was prioritised and it was given a significant impetus.[87]

In the ensuing climate, the European Commission, in its explanatory memorandum of the draft FDEAW, proposed to abolish the double criminality rule and to establish a ‘negative list of offences’ including, for instance, possession of drugs for personal use or pornography.[88] In other words, some criminal acts could constitute an offence in one MS but not in another. The MSs could, therefore, refuse to execute the EAW on the basis that this would be contrary to the fundamental principles rooted in their national legal systems.[89] Although ‘the negative list’ eventually turned out to be a failure, its meaning still remains.[90] Subsequently, the Commission proposed a ‘positive list of offences’ in relation to which the double criminality rule was dispensed.[91]

The FDEAW was adopted on 13 June 2002 and came into force on 1 January 2004.[92] The following implementation of the FDEAW took longer than intended as the transposition date of 31 December 2003 was met by only 8 out of 15 MSs.[93]

There are a considerable number of features in the FDEAW which distinguish it from the previous extradition arrangements between the MSs.

Pursuant to Article 1 of the FDEAW ‘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.’ It is important to emphasise that ‘the state’ means the judicial authority and not the government, who in the past played a significant role in the conventional extradition proceedings.[94]

Furthermore, Article 2 of the FDEAW requires the use of the EAW when the offences punishable in the issuing MS carry ‘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’ or when the offences punishable in the issuing MS come within the 32 list offences which carry a ‘custodial sentence or a detention order for a maximum period of at least three years’.

In addition to that, Article 2(2) FDEAW, which is often viewed as the most radical change introduced by the FD, provides that the 32 list offences do not require verification under the double criminality rule. What is of major concern, however, is that descriptions of these offences are rather vague.[95]  To certain extent, this may be explained by the fact that the majority of the offences were adopted from the Europol Convention list which operates on a task-allocating basis.[96] On the other hand, a certain level of laxity in the descriptions is also necessary in order to avoid constant amendments, and to embrace definitions of crimes deriving from 27 legal systems.

A sufficiently important example to be mentioned here is the offence of murder. The substantial elements of murder are defined differently in various European legislations.[97] Furthermore, the FDEAW does not seem to offer a clear definition as to whether the offence of murder encompasses other forms of killing such as manslaughter.[98] The Dutch and German Texts, however, do so explicitly. Under Dutch law, murder (moord) is defined ‘as killing with intent after premeditation and calm reflection’.[99] Consequently, the act of ‘merely killing’ amounts to manslaughter (doodslag) whereas ‘killing someone without premeditation and subsequently feeding the remains to the gulls is not moord under Dutch law.’[100] Under national law, murder is punishable by a life sentence or a maximum sentence of 20 years’ imprisonment, whereas manslaughter by a maximum sentence of 15 years.[101]

German law, on the other hand, provides a relatively broad definition of the offence of murder (mord) while taking into account factors such as the motive or the way of killing.[102] Murder in Germany is punished with imprisonment for life. Theoretically, murder as defined in German law could constitute manslaughter under Dutch law with all the ensuing sentencing implications.[103]

One may also question, what is the difference or what is the connection between ‘fraud’ and ‘swindling’? [104] Is the offence of ‘trafficking in stolen vehicles’ meant to cover handling of vehicles’ parts too?[105] Indeed, there is a certain level of ambiguity and discrepancy in the definitions included in the list. It remains unclear as to what extent these definitions are binding on the MSs or how comprehensive are they.[106]

Advocaten voor de Wereld[107] sheds some light on these issues. This case concerned an action brought by the above named association before the Belgian Court of Arbitration seeking an annulment of the national legislation implementing the FDEAW.[108] Several questions on the validity of the EAW were referred to the CJEU under the preliminary ruling procedure.

The CJEU, amongst other things, held that ‘even if the Member States reproduce word-for word the list of the categories of offences set out in Article 2(2) of the Framework Decision for the purpose of its implementation, the actual definition of those offences and the penalties applicable are those which follow from the law of the issuing Member State. The Framework Decision does not seek to harmonise the criminal offences in question in respect of their constituent elements of the penalties which they attract’.[109]

In addition, Advocaten voor de Wereld argued that FDEAW failed to satisfy the principle of legality, enshrined in Article 7 ECHR, by dispensing the double criminality rule in respect of the offences listed in Article 2(2) and by listing categories of undesirable behaviours instead.[110] The CJEU, however, rejected this argument and held that ‘accordingly, while Article 2(2) of the Framework Decision dispenses with verification of double criminality for the categories of offences mentioned therein, the definition of those offences and of the penalties applicable continue to be matters determined by the law of the issuing Member State (…)[111]

One may, therefore, assume that the legality principle can only be violated at the national level. It is disappointing that the CJEU refrained from providing a detailed explanation on that point. The abolition of the double criminality rule is likely to have an impact on the foreseeability aspect which derives from the principle of legality.[112] In light of this principle, citizens and judicial authorities must be aware of what conducts may constitute criminal offences so that they can choose their actions and behaviours accordingly.[113] Thus, eliminating double criminality and introducing a vague catalogue of offences instead, may be seen to jeopardize the legal security of individuals and, consequently, violate the legality principle.[114]

Furthermore, in relation to the offences falling outside the list, it is left to the executing states to decide on whether to apply the double criminality rule. For instance, under the Dutch domestic legislation implementing the FDEAW, nationals will not be extradited for the purpose of being prosecuted for an offence which is not punishable in the Netherlands, whereas, Ireland always uses double criminality at the issuing stage for the purpose of returning its own nationals.[115] Hence, it is evident that the interpretation of definitions and the application of the double criminality rule may differ amongst various MSs. In addition to that, only six MSs have made an explicit reference to Article 2(1) FDEAW which implies that the execution of the EAW must be in compliance with the principle of mutual recognition.

The above analysis indicates that, even though, the mutual trust is presumed to be present, it has not yet attained a normative status.[116] This is further demonstrated by the fact that the FDEAW contains a number of refusal grounds to extradite.

Article 3 of the FDEAW provides for the mandatory grounds where an offence is covered by amnesty in the executing MS; when a final judgement has been passed and the sentence has been served or is being served; or when a requested person’s age exempts that person from being held criminally responsible.

The optional grounds are listed in Article 4 FDEAW and apply, for instance, when a requested person is already being prosecuted in the executing MS for the same offence or when a prosecution or punishment is statute-barred. Moreover, the execution of the EAW may also be subject to certain conditions under the national law of the executing MS when sentences in absentia or life sentences are concerned.

The catalogue of optional grounds may be further specified by the MSs in accordance with their national legislations. Some MSs included human rights in their domestic legislations as a ground for refusing to extradite.[117] The case law on that point is extensive and it is discussed at greater length in the third chapter.

The crucial point to note here is that the main body of the FD EAW itself does not explicitly offer any fundamental rights basis for refusing to execute the EAW.[118] However, this is somewhat implied by Recital 12 which states that ‘the 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 (…)’

Furthermore, Article 13 indicates that the extradition would be impermissible if there was a serious risk of the death penalty being imposed or where a person would be subjected to torture or other degrading treatment. The FDEAW implies that human rights must be respected but there is nothing in the body of the FD to prohibit the refusal of extradition when there is a high risk of human rights being infringed.

These provisions should be read in light of the well-known Soering v UK case, in which the ECtHR for the first time held that, ‘where an applicant claims that a decision to extradite him would, if implemented, be contrary to Article 3 ECHR by reason of its foreseeable consequences in the requesting country, a departure from this principle is necessary, in view of the serious and irreparable nature of the alleged suffering risked, in order to ensure the effectiveness of the safeguard provided by that Article (art. 3)’.[119]

The principle deriving from this case is crucial to the protection of human rights in the EAW context as it confirms that the obligation to extradite and the obligation to comply with the ECHR shall be balanced against each other.[120]  Moreover, in spite of the absence of any provisions containing explicit human rights bars to surrender, the implementation of the ECHR standards by the domestic laws and constitutions is of fundamental significance and should be interpreted as having a general application within the context of the EAW.[121] This is also implied by the principle of mutual recognition which indicates that all MSs satisfy the standards set out in the ECHR. One would, therefore, expect that infringements of those rights are unlikely to occur. Nonetheless, this presumption is open to question as, while all MSs are signatories to the ECHR, all had and continue to have proceedings against them in the ECtHR.[122]

The FDEAW also fails to provide an explicit reference to the need to respect the proportionality principle which is often closely associated with human rights in extradition proceedings.[123] In other words, the MSs are not required to perform a balancing exercise by examining the extradition’s consequences for a requested person.[124] Neither does the EAW provide a legal obligation to apply proportionality at the time of issuing the EAW.

One must, however, remember that proportionality discussed in the context of the issuing states is not to be equated with proportionality considered in the context of the executing states when human rights are at stake. The latter is fully explored in the third chapter of this analysis. Here, the main objective is to minimize the costs in relation to the operation of the EAW and not to protect the individual’s rights.[125]

A consistent criticism of the EAW is that in a considerable number of cases the issuance of the EAW for minor offence does not justify the costs of its operation. Apart from the impact the EAW may have on the liberty and family life of a requested person, the use of the EAW in such cases means that the executing states are faced with the disproportionate burden on their public financial resources as they are required to cover all legal and courts fees, interpretations costs, police and prison services.[126]

For instance, in 2010, Poland issued 3,753 EAWs for offences, such as, minor theft or possession of small amount of drugs.[127]

An illustrative example of the issue at stake is the case of Natalia Gorczowska, a 23 year old mother, who was sought under the EAW issued by the Polish judicial authorities in relation to a conviction from 2006 for possession of 4g of amphetamine.[128] She was given a 10 month suspended sentence.[129] It appears evident that, Poland does not follow the proportionality assessment as long as the EAW falls within the boundaries of sanctions provided by the FDEAW.

The European Commission highlighted this problem in its 2011 Evaluation Report and stated that ‘the non-uniform application of a proportionality check by the issuing states (…)  may also lead to a situation in which the executing judicial authorities feel inclined to apply proportionality test, thus introducing ground for refusal that is not in conformity with the Framework Decision’.[130]

A commonly held view is that the proportionality checks should be applied by the issuing rather than executing judicial authorities.[131]  According to the Council of the EU, ‘the proportionality check is basically to be seen as a further test in establishing whether the requisite threshold has been met, based on the appropriateness of issuing a European arrest warrant in the light of the circumstances of the case, or whether use could be made of less costly means.’[132]

It should be noted here, that Section 2 of the European Handbook on how to issue the EAW requires the judicial authorities to consider proportionality at the issuing stage, however, there is no legal obligation to do so. Section 2 provides that ‘(…) the competent authorities should, before deciding to issue a warrant consider proportionality by assessing a number of important factors: the seriousness of the offence, the possibility of the suspect being detained, and the likely penalty imposed if the person sought is found guilty of the alleged offence.’

Although the issue of proportionality has attracted extensive criticism over the operation of the EAW and raised serious concerns in relation to the automatic use of this instrument, the crux of the question is why the EAW is applied to trivial offences in the first place.[133]

Firstly, the threshold established by Article 2 FDEAW enables MSs to apply the EAW to any offences that meet the precondition of a minimum level of seriousness and fall within the specified sentencing regime. An illustrative example is the offence of theft which, in all European countries, satisfies the requirement of a maximum penalty of at least 12 months’ imprisonment. In principle, the EAW may be available for any case of theft, regardless of its gravity.[134] The EAW could, therefore, be issued for a single offence of theft of a property of a low nominal value, or for ‘the Great Train Robbery’.[135]  

Secondly, the application of proportionality differs amongst 27 MSs.[136] English prosecutors, for instance, exercise their discretionary powers when deciding whether or not to prosecute.[137] This demonstrates a more sensible approach to the enforcement of criminal law.[138] The Code for the Crown Prosecutors stipulates that there must be a realistic prospect of conviction and it must be in the public interest to do so.[139]

By contrast, Poland is bound by the principle of legality.  Polish prosecutors have no discretionary powers to assess whether or not the act of prosecuting a person is in the public interests and, therefore, they are required to prosecute any crime regardless of the seriousness of the offence or the consequences.[140] Polish judicial authorities are obliged to adopt all measures necessary to bring criminals to justice and the EAW seems to be a tool that allows them to do so.[141] This may, therefore, explain the high volume of the EAWs issued by Poland every year.

Thirdly, there is a lack of alternative measures. For many MSs, such as Poland, which comply with the principle of legality, no other measures are available. In their view, prosecution of trivial offences does not amount to a disproportionate use of the EAW as the only other available alternative would be to let the person go unpunished. The fact that the offence may be regarded as trivial should not offer immunity. [142]

This also triggers the question as to whether MSs can rely on Article 49(3) of the EU Charter in order to assess the disproportionate use of the EAW. However, this argument is likely to fail as Article 49(3) applies strictly to the proportionality between offences and penalties. The surrender procedures do not form part of the punishment itself; they are rather an enforcement aid. [143]

Although the Commission and the Council’s recommendations on the use of proportionality contributed to an awareness of the issue at stake, the improvements are still needed. However, the fact that the Handbook devoted a special interest to the proportionality and that consideration is being given to the need to precisely examine the use of the EAW already demonstrates a positive approach.[144]

One may also observe that, the proportionality checks are already gaining some recognition in national courts. In the case of Assange, the UK Supreme Court held that ‘the scheme of the EAW needs to be reconsidered in order to make express provision for consideration of proportionality. It makes sense for that question to be considered as part of the process of issue of the EAW. To permit proportionality to be raised at the stage of execution would result in delay that would run counter to the scheme.’[145]

Nonetheless, in order for the proportionality checks to be effective the legislative amendment to the FDEAW would need to be considered to create a legally binding obligation to undertake the assessment of factors, such as, the gravity of the offence, the realistic prospects of conviction; the likely sentence; or previous criminal records accordingly.[146]

Furthermore, recent developments of the European Investigation Order (EIO) also intensified the need for proportionality in the EAW.[147] The EIO was designed to replace the European Evidence Warrant and to create a more comprehensive instrument for gathering evidence.[148] The current draft text of the EIO states that ‘the EIO should be chosen where the execution of an investigative measure seems proportionate, adequate and applicable to the case in hand. The issuing authority should therefore ascertain whether the evidence sought is necessary and proportionate for the purpose of proceedings, whether the measure chosen is necessary and proportionate for the gathering of this evidence (..).’[149]

Moreover, Article 5a(1) provides that ‘an EIO may be issued only when the issuing authority is satisfied that the (a) the issuing of the EIO is necessary in a democratic society and proportionate for the purpose of the proceedings referred to in Article 4 taking into account the rights of the suspect.’[150]

The introduction of the proportionality assessment appears to be a welcome addition. One would, therefore, expect that in order to reach a coherent solution to the proportionality issues in the context of the EAW some action must now be taken at the EU rather than MSs level.[151]

In addition to that, the MSs are also encouraged to use alternative mutual recognition measures where appropriate.[152] One of them could be the FD 2009/829/JHA concerning supervision measures as an alternative to provisional detention which offers a possibility of bail for non-residents who are suspected of having committed an offence in a home MS so that they can spend a pre-trial period under bail conditions in their home country.[153]

Evidently, the FDEAW demonstrates a great level of uncertainty, particularly, in the provisions on double criminality, the refusal grounds but mainly human rights and proportionality. Although this, to certain extent, may be explained by the fast adoption of the FDEAW, such an uncertainty is often viewed as an expression of mutual distrust between the MSs and should not, therefore, be disregarded.

CHAPTER III

To begin with, it should be noted that even within the relatively homogenous EU only several MSs have made extra efforts in introducing proportionality as a legal tool into their domestic laws when adjudicating and executing EAWs. As already mentioned before, proportionality as a ground for refusing to extradite is nowhere to be found in the body of the FDEAW. The UK, amongst other European countries, has generalised human rights bars and made a use of proportionality as a balancing tool when scrutinising them.

In the UK, the FDEAW was incorporated into its national law through the Extradition Act 2003 which came into force on 1 January 2004.[154] Of particular importance for present purposes is Section 21 EA 2003 which states that ‘if the judge is required to proceed under this section (by virtue of section 11 or 20) he must decide whether the person’s extradition would be compatible with the Convention rights within the meaning of the Human Rights Act 1998.’

In other words, the judges are required to perform a balancing exercise in order to assess whether any interference with human rights is proportionate to the legitimate aim of the extradition which is always motivated by the public interests requirement.[155]

An important point to note here is that, on 16 July 2013, the Public Bill Committee was asked to consider Anti-Social Behaviour, Crime and Policing Bill introducing new clauses and schemes, and amongst them, amendments to the EA 2003. The aim is to improve efficient operation of the extradition scheme, particularly, around the issues of proportionality.[156]

In light of the proposed amendments Section 11 EA 2003, which refers to bars to extradition, will be modified. Particularly, Section 11(5) requires the judges to proceed under Section 21 if no other bars apply to the case concerned. However, this section has now been substituted with Section 21A which states that ‘the judge must decide both of the following questions in respect of extradition of the person a) whether the extradition would be compatible with the Convention rights within the meaning of the Human Rights Act 1998, b) whether the extradition would disproportionate (21A(1)).[157]

The new provision will require the judges to determine whether execution of the EAW would be disproportionate. In doing so, they will have to take into account the most relevant elements, such the seriousness of the offence, the likely penalty and the availability of less coercive measures.[158] The purpose of the new clause is to reduce a burden placed on the British courts when processing disproportionate warrants. This provision will be supplemented with an administrative proportionality check which will help to clear out the most trivial requests when they are first received.[159]

In practice, one of the most commonly invoked and challenged articles in the British courts is Article 8 ECHR. This is partly explained by the fact that extradition will almost inevitably affect, to a greater or a lesser degree, private and family life of a requested person.[160] Usually, against these interests, there is an opposing interest in honouring the extradition arrangements, namely, returning the convicted or accused persons to the requesting state.[161] The main task is, therefore, to assess how to accommodate these different interests.[162] Given that the threshold of proof is extremely high, and the choice is either to allow the extradition or not, the judges are left with little leeway to consider proportionality under Article 8. However, the most celebrated judgment in HH[163] appears to demonstrate a sea change in the courts attitude to proportionality and Article 8 ECHR cases.

Before embarking on the analysis of the HH ruling, it is necessary to provide a brief overview of the pre HH case law.

The first decision to be examined is in the case of Norris[164]. In this instance a 66 year old man challenged the extradition sought by the US on charges of price fixing and obstruction of justice.[165] He contested the warrant on the basis of Article 8 ECHR. Mr Norris was married with children and grandchildren. Having suffered from cancer and depression, he was in poor physical and mental health.[166] In 2008, the House of Lords held that the conduct in regards to the price fixing could not constitute an offence under English law, and, therefore, the case was sent back to Westminster Magistrates’ Court in order to determine whether Mr Norris should be extradited on the remaining charges.[167]

The submitted evidence indicated that the extradition would have a disproportionate impact on his personal circumstances as it would affect his and his wife’s wellbeing. The District Judge, however, held that there were no bars to extradition and that the extradition was proportionate. This decision was upheld by the High Court where it was ruled that, in order to outweigh the public interest in adhering to extradition agreements, Mr Norris would have to demonstrate ‘striking and unusual facts’ or reach ‘a high threshold’.[168]

Mr Norris appealed to the Supreme Court on the basis that the requirement of ‘exceptional circumstances’ was wrong.[169]

The Supreme Court also dismissed the appeal. Although the Court recognised that Mr Norris’s extradition involved the Article 8 rights, the interference with these rights was justified by the obligation to pursue the legitimate objective in observing the extradition arrangements.[170]The question for the Court was entirely one of proportionality.’[171] As stated by Lord Philips in his leading judgement ‘there can be no absolute rule that any interference with article 8 rights as a consequence of extradition will be proportionate. The public interest in extradition nonetheless weighs very heavily indeed.’[172]

However, ‘the reality is that only if some quite exceptionally compelling feature, or combination of features, is present that interference with family life consequent upon extradition will be other than proportionate to the objective that extradition serves.Exceptional circumstances” is a phrase that says little about the nature of the circumstances. Instead of saying that interference with article 8 rights can only outweigh the importance of extradition in exceptional circumstances it is more accurate and more helpful, to say that the consequences of interference with article 8 rights must be exceptionally serious before this can outweigh the importance of extradition.‘[173]

Of considerable importance was also the fact that, the Court touched upon the seriousness of the offence underlying the warrant. ‘Usually the nature of the offence will have no bearing on the extradition decision. If, however, the particular offence is at the bottom of the scale of gravity, this is capable of being one of a combination of features that may render extradition a disproportionate interference with human rights. Rejecting an extradition request may mean that a criminal never stands trial for his crime. The significance of this will depend upon the gravity of the offence.’[174]

Upon closer consideration, one may observe that the judgment maintained the difference between the low threshold of proof when Article 8 is at stake, and the great significance of extradition in light of the public interest which can only be overridden by exceptional circumstances under Article 8(2).[175] According to Liberty, intervening in this case, it should be borne in mind that the ECHR is aimed at protecting human rights rather than demonstrating where they should not be applied.

Furthermore, the current laws appear to encourage judges to apply Article 8 from ‘wrong way round’, by first examining Article 8(2) and determining whether it can be overridden by any unusual factors in the nature of the way that Article 8(1) is involved.[176] This approach will inevitably lead to unsuccessful outcomes in the majority of cases where the importance of the public interest is consistently heightened. Article 8(2) should be viewed as a prerequisite of the main right rather than the imperative to which ‘the right is an exception’.[177] Liberty asserts that this line of reasoning is entirely outside the spirit of the ECHR.[178]

Thus, the test established in the Norris case appeared to be unattainable in practice. This has been clearly demonstrated in the subsequent case law.

In C v Poland, a polish female national was subject to the EAW issued for the offences of burglary.[179] She contested the EAW on the basis of Article 8 ECHR as it was demonstrated that the extradition would have a devastating impact on her 8-year old son’s life (J). The submitted evidence indicated that, in the event of extradition, there would be no family member who could act as a carer for her son. Nonetheless, extradition was ordered as no disproportionate interference with the Article 8 provisions was established.[180] The subsequent appeal was dismissed, even though; a psychological report in relation to the Appellant’s son confirmed that the extradition would cause emotional problems for J and would affect his wellbeing.[181]

Cranston J concluded: ‘I have concluded that in this case the report of Dr Wright is not such as to put this case into the exceptional category identified in Norris. These are not trivial offences…The possibility identified by Lord Phillips that extradition would be disproportionate where there will be a severe suffering to a family, but the offence itself is relatively trivial, does not arise. There is no doubt that J has had a difficult upbringing, partly through the appellant leaving him in Poland in 2006. There is no doubt he has made significant progress and it is likely (…)There certainly has been greater stability in his life and that will be disrupted by his mother’s return to Poland but, as Norris makes clear, the circumstances will be very rare so as to make extradition disproportionate under Article 8’.[182]

Meanwhile, in ZH (Tanzania) v Secretary of State for the Home Department the Supreme Court was asked to assess ‘the weight to be given to the best interests of children who are affected by the decision to remove of deport one or both of their parents from the UK’ in light of Article 8.[183] In this instance, a mother of two young children, was made the subject of a deportation order to Tanzania.[184]

The leading judgement was given by Baroness Hale, who held that ‘in making the proportionality assessment under article 8, the best interests of the child must be a primary consideration. This means that they must be considered first. They can, of course, be outweighed by the cumulative effect of other considerations. In this case, the countervailing considerations were the need to maintain firm and fair immigration control, coupled with the mother’s appalling immigration history and the precariousness of her position when family life was created. But, as the Tribunal rightly pointed out, the children were not to be blamed for that. And the inevitable result of removing their primary carer would be that they had to leave with her.’[185] Subsequently, the appeal was uphold.

It seems difficult to understand why the choice of having children while being a subject to immigration control can be seen as creating a possibility to rely on a right to family life associated with residing in this country when all other relevant elements for the Article 8 argument are not present…[186] Nonetheless, this decision paved the way for the courts on how to approach cases when the best interests of children are involved. This ruling did not, however, have an immediate impact on extradition cases and it was not until the HH and F-K[187] cases that it changed the legal landscape significantly.

The two joined cases concerned requests for extradition sought by Italy and Poland. Both cases raised issues of proportionality in light of extradition where the interests of children under Article 8 were involved. The question certified for Supreme Court, was: ‘where, in proceedings under the Extradition Act 2003, the Article 8 rights of children of the defendant or defendants are engaged how should their rights be safeguarded and to what extent, if at all, is it necessary to modify the approach of the Supreme Court in Norris v Government of USA (No. 2) in the light of ZH (Tanzania)’.[188]

To put very briefly, HH and PH were British nationals and respectively parents of 3 children. They had been convicted in their absence for drugs’ importation and left the country in breach of their bail conditions. P was due to serve a lesser sentence. They contested the EAWs on the basis that their simultaneous extradition would amount to disproportionate interference with Article 8 ECHR as it would have a devastating impact on their family life, particularly; it would cause a serious harm to the children. Furthermore, HH resisted extradition under section 25(2) EA 20023 that it would be oppressive to extradite her due to her mental issues.[189]

The second case concerned F-K, a polish mother of five children. She was accused of the offences of dishonesty committed allegedly between 2000 and 2001. She arrived in the UK in 2002 and the EAWs were issued in 2006 and 2007. There was evidence that extradition would have a severe impact on the children, particularly on the youngest two. Furthermore, it was submitted that her husband was psychically impaired with signs of psychological disturbance.[190]

The Supreme Court unanimously allowed the F-K appeal and refused the HH’s appeal. The Justices by majority of 6:1 also refused the PH’s appeal.

In the case of HH and PH, the assessment of the gravity of the offences implied that the children’s interests could not take a priority over the public interest in adhering to extradition obligations.[191] Furthermore, of great concern, was the fact that both HH and PH failed to comply with their bail conditions and that the youngest of their children was born soon after the proceedings had commenced, what could be viewed as an attempt to avoid serving sentence. [192]

Against this background, in the leading judgment in PH’s case, Lady Hale considered the impact of the extradition on the youngest child and held that the circumstances in this case can properly be described as exceptional. The effect upon the children, but Z in particular, of extraditing both their parents will be exceptionally severe. The effect of extraditing their mother alone would not be so severe and is clearly outweighed by the public interest in returning her to Italy. But the same cannot be said of the effect of extraditing their father. I have, not without considerable hesitation, reached the conclusion that it is currently so severe that the proportionality exercise requires the court to consider whether it can be mitigated.’[193]

The majority of Justices also acknowledged the dilemma of the children; however, they put particular emphasis on the seriousness of the PH’s conduct.

On the contrary, the offences allegedly committed by F-K were described as ‘of no great gravity’.[194] There was also a considerable delay in issuing the EAW by the Polish Authorities. The effect of this delay has meant that F-K has established her private and family life in the UK. In such circumstances, F-K’s removal would constitute a disproportionate interference with Article 8 rights and the importance of the public interest would not justify the inevitable harm to the interests of the youngest children. [195]

It is submitted that this judgment represents a dispensing of the concept of Article 8 threshold, and of any idea that the circumstances need to be exceptional. This is clearly set out by Lady Hale:

‘It is not correct that the approach of the court to article 8 rights has to be “radically different” as between extradition and expulsion cases (…) Section 21 requires the judge to decide whether the person’s extradition would be compatible with the Convention rights and to discharge the person if it would not.

In answering that question, the court would be well advised to adopt the same structured approach to an article 8 case as would be applied by the Strasbourg court. First, it asks whether there is or will be an interference with the right to respect for private and family life. Second, it asks whether that interference is in accordance with the law and pursues one or more of the legitimate aims within those listed in article 8.2. Third, it asks whether the interference is “necessary in a democratic society” in the sense of being a proportionate response to that legitimate aim. In answering that all-important question it will weigh the nature and gravity of the interference against the importance of the aims pursued. In other words, the balancing exercise is the same in each context: what may differ are the nature and weight of the interests to be put into each side of the scale.

There are differences between extradition and other reasons for expulsion. Thus, as Lord Judge points out (para 122), an extradition order may be appropriate where deportation or removal would not. In particular, extradition is an obligation owed by the requested state to the requesting state in return for a similar obligation owed the other way round. There is no comparable obligation to return failed asylum seekers and other would-be immigrants or undesirable aliens to their home countries. But there is no obligation to return anyone in breach of fundamental rights(…) Hence, as Lord Hope observed, “there are [no] grounds for treating extradition cases as falling into a special category which diminishes the need to examine carefully the way the process will interfere with the individual’s right to respect for his family life” (para 89).

The second main criticism of the approach in later cases is that the courts have not been examining carefully the nature and extent of the interference in family life. In focussing on “some quite exceptionally compelling feature” (para 56 in Norris), they have fallen into the trap identified by Lord Mance, tending “to divert attention from consideration of the potential impact of extradition on the particular persons involved . . . towards a search for factors (particularly external factors) which can be regarded as out of the run of the mill” (para 109). Some particularly grave consequences are not out of the run of the mill at all. Once again, the test is always whether the gravity of the interference with family life is justified by the gravity of the public interest pursued (see also Lord Wilson, at para152). Exceptionality is a prediction, just as it was in R (Razgar) v Secretary of State for the Home Department [2004] UKHL 27, [2004] 2 AC 368, and not a test. We are all agreed upon that.

(…) as Neulinger and ZH (Tanzania) have explained, article 8 has to be interpreted in such a way that their best interests are a primary consideration, although not always the only primary consideration and not necessarily the paramount consideration. This gives them an importance which the family rights of other people (and in particular the extraditee) may not have’.[196]

Lady Hale clearly explained that even run of the mill matters can have severe consequences and hence why the use of terms like threshold or quite exceptionally compelling can lead to a court not properly considering the issue of proportionality in the structured way she set down.

It seems reasonable to conclude that, this judgment does not prohibit execution of the EAW where the nature and seriousness of the conduct requires it in light of the public interest, but reaffirms that the imperative set out in ZH Tanzania on the significance of the children’s interests cannot be disregarded or taken for granted.[197] The recent case law has shown that English judges are more willing to exercise their discretion in favour of requested persons and their families, predominantly, in cases where the offences are of no great gravity.

Particularly, in Juszczak v Poland the appeal was allowed on the grounds of a considerable delay and Article 8.[198] In this instance, Mr Juszczak was a step-father to a severely disabled 17 year old daughter for whom he provided essential care. He was also a biological father to a 3 year old. He was the sole breadwinner as his wife was looking after the children. In 2004, he committed three offences of blackmailing, theft and possession of 10,5 grams of amphetamine. He was given a suspended sentence under a condition that he would not commit any further offences during the period of suspension. Nonetheless, in 2005 he committed the offence of theft, ‘an act of minor significance’.[199] As a result, the suspended sentence was activated and he was required to serve 2 years’ imprisonment. However, he left Poland before that order was made.[200]

Collins J held that ‘in the circumstances, on his own admission, he is a fugitive from justice, accordingly, as is accepted, would not be able to rely on Section 14  of the Extradition Act in seeking that there was a bar to his removal. However, as it plains from the decision of the Supreme Court in HH, delay is a matter that can be taken into account in deciding whether return is proportionate’.[201]

He further noted that ‘this is undoubtedly an exceptional case. Where if not for the delay, it may well be that, hard though it would be, I would have taken the view that there was not sufficient to justify it being said to be disproportionate to return but the delay has, in my judgment, tipped the balance and it means that on the facts, despite the relatively serious nature of the offences, it would not be proportionate to require the appellant to return to Poland.’ [202]

By contrast, in the case of JP v Czech Republic, the extradition appeal was refused as it was held to be proportionate under Article 8, regardless of the fact, that the offences concerned were of even lesser gravity than those in F-K and that the requested person was a primary carer for her 3 young children.[203]

It is disappointing that the Court did not provide a clarification on the glaring inconsistency between its decision and that in the F-K. This may be partly explained by the fact that the HH judgment has made it clear that each case stands on its own particular facts and that to try and draw analogies between the facts of individual cases is the wrong approach. Therefore, it remains unclear what are the compelling factors capable of rendering extradition disproportionate. Is it a number of children involved, the seriousness of the offence, or possibly both?

This subsequently leads to an analysis of the aspect of proportionality when the seriousness of the offences is considered at the time of executing the EAW.

Remarkably, the Higher Regional Court of Stuttgart has made an attempt to establish a general limit of proportionality in the EAW scheme when the gravity of the offence is examined. In its Decision of 25th February 2010 the Court ‘held that Art 49(3) of the Charter is a ground for the non-execution of the EAW if the penalty sought by the issuing state would be intolerably severe’.[204]

The case concerned the EAW issued by the Spanish authorities in 2009 in respect of a Liberian national who allegedly intended to sell drugs to an undercover police officer.[205] The proposed sentence was 4 years’ imprisonment.[206] Even though the Court ordered the extradition, it provided an interesting analysis on the sources of law which would possibly imply a limit of proportionality into the EAW.

Firstly, the Court examined the EAW and proportionality in light of German constitutional law and held that the EAW must comply with ‘the principle of proportionality which forms part of the rule of law as recognised by the German Federal Constitutional Court’.[207]

Secondly, the Court examined whether the extradition would be in breach of Article 49(3) and held that ‘the penalty sought by the Spanish authorities-four years’ imprisonment- is certainly very severe but an extradition would not infringe fundamental rights and fundamental legal principles as enshrined in Art. 6 of the TEU.[208] The Court further noted that the extradition would be impermissible if the sentence was ‘intolerably severe’. This triggers the question as to whether the Charter could, indeed, impose limits to proportionality and whether this could constitute a future possibility of bar of triviality.[209]

In addition to that, would other MSs be willing to follow the Regional Court’s approach? The UK and Poland, for instance, adopted Protocol 30 to the Treaty which means that the legal impact and application of the Charter is limited in their national legal systems.[210]

According to Vogel ‘there is an irony in this, because it looks as if the United Kingdom – not for the first time – has been hoist by its own petard. The UK Government would almost certainly be as pleased as any civil libertarian defence lawyer to find a legal means of preventing Polish public prosecutors from overloading their legal system with EAWs issued to recover truant Polish shoplifters. And it is thanks to an Eurosceptic conspiracy hatched together with the Polish Government that it is unable now to use the Charter as an argument to keep a piece of EU legislation within reasonable bounds’.[211] 

Nonetheless, the exact effect of the Charter in the UK remains uncertain. Some commentators argue that the preamble of the Charter only reaffirms the already existing rights in order to make them more visible across the EU and does not intend to create new obligations.[212]

In any case, the German Court has also considered a third option of implying proportionality through the CJEU. In other words, the principle of proportionality is deeply rooted in the EU legal system. The crucial point emphasised by the Regional Court was that: ‘the principle of proportionality of criminal offences and penalties forms part of the constitutional traditions common to the Member States and is a general principle of the Union’s law. In that sense Art 49(3) of the Charter stipulates that [t]he severity of penalties must not be disproportionate to the criminal offence, which is a generally recognised human rights standard in the Union. The Court notes that Art 49(3) CHFR is binding on the Member States only when they are implementing Union law. However, the Court holds that Member Sates which extradite (surrender) a requested person necessarily implement Union law because the legal framework of intra-European Union extradition (surrender) proceedings has been fully harmonised by the FD EAW which has replaced the former treaty framework.’[213] One may, therefore, assume that the MSs are legally bound to address Article 49(3) when considering the triviality of the offences underlying the EAW, as in doing so; they act within the scope of EU law.[214]

On the contrary, if Article 49(3) was commonly applied throughout the EU as a ground for refusing to extradite, this could have a considerable impact on the effectiveness of the whole extradition regime and would undermine the principle of mutual recognition. The UK, for example, is considered to impose more severe sentences than any other MS when violence offences or drugs trafficking are concerned.[215] It could, therefore, appear to be detrimental to the UK’s legal system if the judicial authorities were unable to surrender an accused person on the basis of the Article 49(3) assessment undertaken by the executing state.

Clearly, views on that point differ significantly among various MSs. How strong these views may be, is well demonstrated by the judgment of the English High Court in the case of Sandru.[216] This case concerned a Romanian national, against whom the EAW was issued for stealing and killing 10 chickens.[217] He was convicted to 3 years’ imprisonment.[218]

The High Court held that ‘insofar as it is requiring our courts to question or review the appropriateness of the sentence passed by a foreign court, it is asking these courts to exercise a function they are ill-equipped to carry out. The appropriate sentence is, in part, a function of culture, and in any event the courts here have limited information about the factors leading a foreign court to impose the sentence it did.’[219] ‘It may be, for example, that in this case the Romanian courts treat theft of livestock and its subsequent destruction far more seriously than English courts would typically do. If the sentence is thought to be too high, the answer is to challenge it in Romania, which indeed is precisely what the Appellant apparently is doing in this case.[220]

It appears that some MSs, the UK in particular, are not willing to follow the approach developed by the German Court which was hoping to establish an EU engendered proportionality test based on the triviality of the offences. According to Professor Vogel ‘we mean our decision to be a precedent certainly in Germany but perhaps also in Europe. Hopefully, it will ‘set the tone towards a more cautious and more human rights-orientated approach towards mutual recognition and European arrest warrants’[221] Although this decision may encourage other MSs to consider such an option, the final decision rests with the CJEU.

In fact, the CJEU has recently noted in the Radu case that ‘at the hearing, counsel for Germany used the example of a stolen goose. If that member state were asked to execute a European arrest warrant in respect of that crime where the sentence passed in the issuing member state was one of six years, she thought that execution of the warrant would be refused. She considered that such a refusal would be justifiable on the basis of the doctrine of proportionality and referred the court to art 49(3) of the Charter, according to which ‘the severity of penalties must not be disproportionate to the criminal offence’. This court has yet to rule on the interpretation of that article. In the context of the convention, the Court of Human Rights has held that while, in principle, matters of appropriate sentencing largely fall outside the scope of the convention, a sentence which is ‘grossly disproportionate’ could amount to ill-treatment contrary to art 3 but that it is only on ‘rare and unique occasions’ that the test will be met. It would be interesting to speculate as to the interpretation to be given to art 49(3) of the Charter having regard to the interpretation given by the Court of Human Rights of the provisions of art 3 of the convention. However, I do not intend to explore the point for the simple reason that it does not arise in the present case.’[222]

This case concerned a Romanian national against whom Germany had issued four EAWs for the purpose of conducting a criminal prosecution for robbery.[223]  He contested the EAWs on a basis of Articles 47 and 48 CHFR and Article 6 ECHR. He claimed that he did not have an opportunity to instruct a defence lawyer in the issuing state and the EAWs were issued without him having been summoned.[224] He further argued that the FDEAW itself as well as the domestic legislations implementing it should be viewed in light of the CHFR and the ECHR.

The judgment is rather surprising as the Advocated-General Opinion differs considerably from the final approach adopted by the CJEU. In Advocate-General Sharpston’s Opinion it was stated that ‘the judicial authorities of an executing Member Sate are bound to have regard to the fundamental rights set out in the Convention and the Charter when considering whether to execute a European Arrest Warrant’.[225] Furthermore, the test which requires ‘the breach to be flagrant’ seems to be ‘too nebulous to be interpreted consistently throughout the Union’.[226] The more appropriate approach would be to assess whether the risk of breach is ‘substantially well founded’. This would subsequently imply that ‘the deficiency or deficiencies in the trial process should be such as fundamentally to destroy its fairness.’[227]

She also agreed with the position of the Commission in that ‘there is a disproportionate effect on the liberty and freedom of requested persons when European arrest warrants are issued concerning cases in which (pre-trial) detention would otherwise be felt inappropriate.’[228]

By contrast, the Court has expressed a drastically narrow view and ruled that the provisions of Article 47 and 48 could not constitute a basis for refusing to execute the EAW as the effectiveness of the EAW ‘must have a certain element of surprise, in particular in order to stop the person concerned from taking flight.’[229] The Court emphasised that a requested person may always be heard in the executing state, so that the effectiveness of the EAW system is not undermined.[230] With regards to the issue of the deprivation of the person’s liberty and the disproportionate interference with this right, the Court indicated that this is a subject for the defence rights discussion and no special attention is required.[231]

Some commentators argue that the judgment merely reinstates the need for greater efficiency within the surrender procedures and indicates that the EAW operates on a basis of a conclusive presumption, namely, that all MSs comply with ECHR and CHFR standards.[232] This, however, runs counter to the CJEU’s previous decision in the case of NS, concerning an asylum application where it was held ‘that European Union law precludes the application of a conclusive presumption’.[233] It appears as if the Court missed a perfect opportunity to provide a more human rights friendly interpretation of the EAW but mainly it failed to provide any clarification on the issue of proportionality.

CONCLUSION

The above analysis revealed that the principle of proportionality has been, among other EU general principles, deeply rooted in the EU legal system. When applied within the context of extradition, proportionality implies an assessment of a certain policy objective or legislative measure, such as the use of the EAW itself, and the suitability and necessity of its operation.[234] Thereby, the suitability requirement includes a cost-benefit evaluation or an assessment of equally suitable but less restrictive measures of the public policy, which is of considerable importance in the area of criminal justice due to its serious human rights’ implications.[235]

It appears that proportionality in the context of the surrender procedures plays a significant role as it aims to ensure the legal certainty of the EU system and the effective operation of the EAW. This is particularly important in light of the systematic abuse of the EAW which is constantly being used for minor offences and premature extradition requests, such as the Assange case. This, consequently, leads not only to the substantial implications in terms of financial capacity of the executing states but also to the serious human rights’ violations. Although some MSs, the UK in particular, employ proportionality as a balancing tool when the interests of extradition and human rights’ implications are concerned, this is not reflected in other MSs legislations. This may be partly explained by the mutual recognition principle which requires the MSs to accept each other’s judicial decisions without investigating the merits. Nonetheless, this must not be taken for granted and a balance between these two should be struck.

Thus, in order to solve both of the problems associated with proportionality it would be appropriate to build a double proportionality test into the EAW system in order to guarantee sufficient protection of the requested persons’ rights and provide the executing state with a possibility to assess whether the benefits of extradition justify the financial burden and serve the general interests of justice.

 

Bibliography

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  7. HH v Italy; FK v Polish Judicial Authority [2012] UKSC 25.
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  11. Julian Assange v Swedish Prosecution Authority, [2012] UKSC 22.
  12. Juszczak v Poland [2013] EWHC 526 (Admin).
  13. Kreuberg –Urteil Provg E 9, 353, 14 June 1882, PROVG 9,353.
  14. Norris v Government of the United States of America  (No 2) [2010] UKSC 9.
  15. Otto-Preminger v Austria (1994) Appl No 13470/87 (ECtHR).
  16. C-396/11 Radu [2013], ECR-0000.
  17. Sandru v Government of Romania [2009] EWHC 2879 (Admin).
  18. Soering v United Kingdom 161 Eur. Ct. H.R. (1989).
  19. C-8/55 The Queen v Minister of Agriculture, Fisheries and Food and Secretary of state for      Health ex. Parte Fedesa and others, 13 November 1990, ECR I-04023.
  20. ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4

 

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  3. Anti-Social Behaviour, Crime and Policing Bill Session 2013-14. Available at: http://www.publications.parliament.uk/pa/cm201314/cmpublic/antisocialbehaviour/130716/am/130716s01.htm
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  5. ‘Bars to extradition – Extradition orders – Justification – Necessary in democratic society – Proportionality – Right to respect for private and family life’.  Available at: http://alumni.coventry.ac.uk/Document.Doc?id=90
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  11. ‘European Commission criticizes disproportionate use of Arrest Warrants’, Fair Trials, Available at:   http://www.fairtrials.net/press/press-releases/european-commission-criticises-disproportionate-use-of-arrest-warrant/
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  14. Lady Justice Arden DBE, ‘Proportionality: the way ahead?’, United Kingdom Association of European Law, Annual address, November 2012. Available at: http://www.judiciary.gov.uk/Resources/JCO/Documents/Speeches/lj-arden-speech-ukael-proportionality-12112012.pdf
  15. Margit Cohn, ‘Three aspects of proportionality’, Paper presented at the VIII World Congress of the International Association of Constitutional Law, Mexico City. Available at: http://www.juridicas.unam.mx/wccl/ponencias/9/161.pdf
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[1] Herlin-Karnell E, The constitutional dimension of European criminal law, (Oxford: Hart Publishing, 2012), p.17.

[2] ‘Crucial reforms proposed to the European regime’, Fair Trials International. Available at: http://www.fairtrials.net/press/press-releases/crucial-reforms-proposed-to-the-european-regime/ [accessed 22/06/2013].

[3] R (HH) v Deputy Prosecutor of the Italian Republic, Genoa [2012] UKSC 25.

[4] Ellis E, The principle of proportionality in the laws of Europe, (Oxford: Hart Publishing, 1999), p. 65.

[5] 14 June 1882, PROVG 9, 353.

[6] Cohen-Eliya M and Porat I, Proportionality and constitutional culture, (Cambridge: Cambridge University Press, 2013), p.27.

[7] Bernard Schlink, ‘Proportionality in constitutional law: why everywhere but her?’. Available at: http://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1290&context [accessed 07/07/2013].

[8]Sullivan T and Frase R, Proportionality principles in American Law. Controlling excessive government actions, (Oxford: Oxford University Press, 2009), p.28

[9] Ibid.

[10] Mach G and Ziegert K, Law, Legal Culture and Politics in twenty first century, (Germany: Franz Steiner Verlag, 2004), p.93.

[11] [1984] 1 KB 223.

[12] Mach, Op. Cit.

[13] Ibid.

[14] Ibid.

[15] Ibid.

[16] Ibid., p.91.

[17] Belgian Linguistics Case No. 1474/62 (1968) (ECtHR), para.10.

[18] Lady Justice Arden DBE, ‘Proportionality: the way ahead?’, United Kingdom Association of European Law, Annual address, November 2012. Available at: http://www.judiciary.gov.uk/Resources/JCO/Documents/Speeches/lj-arden-speech-ukael-proportionality-12112012.pdf [accessed 07/07/2013].

[19] Ibid.

[20] ‘Article 8 the Right to respect for private and family life: home and correspondence’, Human Rights review 2012. Available at: http://www.equalityhumanrights.com/uploaded_files/humanrights/hrr_article_8.pdf [accessed 18/06/2013].

[21] Margit Cohn, ‘Three aspects of proportionality’, Paper presented at the VIII World Congress of the International Association of Constitutional Law, Mexico City. Available at: http://www.juridicas.unam.mx/wccl/ponencias/9/161.pdf [accessed 07/07/2013].

[22] Arden, Op cit.

[23] Ibid.

[24] Margit Cohn, Op. Cit.

[25] Arden, Op. Cit.

[26] Legg A, The Margin of Appreciation in International Human Rights Law: deference and proportionality, (Oxford: Oxford University Press, 2012), p. 179.

[27] Dudgeon v UK No 7525/76 (1981) (ECtHR).

[28] Legg, Op. Cit.

[29] Ibid., para.48.

[30] Ibid., para.49.

[31] Ibid.

[32] Ibid., para.51.

[33] Ibid., para.52.

[34] Ibid., para.60.

[35] Legg, Op. Cit.

[36] Otto-Preminger v Austria (1994) Appl No 13470/87 (ECtHR), para.47.

[37] Ibid.

[38] Ibid., para.46-47.

[39] Ibid., para.47.

[40] Ibid., para.49.

[41] Arden, Op. Cit.

[42] Otto-Preminger, Op. Cit., dissenting opinion, para.7.

[43] Arden, Op. Cit.

[44] Ibid.

[45] Ibid.

[46] Ibid.

[47] Ibid.

[48] Ibid.

[49] Ibid.

[50] Ibid.

[51] Ibid.

[52] Jean-Marc Thuvenin, ‘The principle of proportionality’, European Governance. Available at:  http://lewebpedagogique.com/jmthouvenin/european-governance-2-program/european-governance-2-the-principle-of-proportionality/ [accessed 22/06/2013].

[53] Craig P, EU Administrative law, (Oxford: Oxford University Press, 2012), p.591.

[54] Ibid.

[55] Ibid.

[56] Ibid., p.592.

[57] Wolf Sauter, ‘Proportionality in EU law: a balancing act?’, Social Science Research Network, January 25, 2013. Available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2208467 [accessed 13/06/2013].

[58] C-11/70, 17 December 1970, ECR 01125.

[59] Craig, Op. Cit., p.591.

[60] C-11-70, Op. Cit., para.12.

[61] C-331/88, 13 November 1990, ECR I-04023, para.13.

[62] Ibid., para.12.

[63] Ibid.

[64] Ibid., para.13.

[65] Ibid., para.14.

[66] Craig, Op. Cit., p.594.

[67] Ibid.

[68] Carrera S, In search of the Perfect Citizen? The intersection between integration, immigration and nationality in the EU, (Netherlands: Martinus Nijhof Publishers: 2009), p.367.

[69] C-112/00 , 12 June 2003, ECR I-5659, para.10-12.

[70] Ibid., para.16.

[71] Ibid., para.20.

[72] Ibid., para.80.

[73] Criag, Op. Cit., p.610.

[74] Ibid.

[75] Ibid.

[76] Martin Bose, ‘The principle of proportionality and the protection of legal interests’, Criminal Criminal Law Review, No 1 2011. Available at: http://rsw.beck.de/rsw/upload/EuCLR/EuCLR_2011_01[1].pdf [accessed 22/06/2013]

[77] Carig, Op. Cit., p.611

[78] Arden, Op. Cit.

[79] Ibid.

[80] Karnell, Op. Cit., p.127.

[81] Ibid.

[82] Ibid.

[83] Conceicao Gomes, ‘The European Arrest warrant in law and in practice: a comparative study for the consolidation of the European Law – Enforcement Area’, October 2010. Available at: http://opj.ces.uc.pt/pdf/EAW_Final_Report_Nov_2010.pdf [accessed 21/07/2013].

[84] Scott Baker, A review of the United Kingdom’s extradition arrangements, (Presented to the Home Secretary on 30 September 2011), p.192.

[85] Sarah Haggenmuller, ‘The principle of proportionality and the European Arrest Warrant’, Social Science Research Network. Available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2200874 [accessed 22/06/2013].

[86] Gomes, Op. Cit.

[87] Ibid.

[88] Keijzer N and Sliedregt, The European Arrest Warrant in practice, (the Hague: Asser Press, 2009), p.54.

[89] Ibid.

[90] Ibid.

[91] Ibid.

[92] Gomes, Op. Cit.

[93] Ibid.

[94] Ibid.

[95] Keijzer, Op. Cit., p.57.

[96] Ibid.

[97] Blekxtoon R, Handbook on the European Arrest Warrant, (Hague: Asser Press, 2005), p.231.

[98] Ibid.

[99] Ibid.

[100] Ibid.

[101] Ibid.

[102] Ibid.

[103] Ibid.

[104] Massimo Fichera, ‘The European Arrest Warrant and the Sovereign State: a marriage of convenience?’, European Law journal, Vol. 15, No. 1, January 2009. Available at:  http://www.cesruc.org/uploads/soft/130308/1-13030QF957.pdf [accessed 21/07/2013].

[105] Keijzer, Op. Cit., p.58.

[106] Ibid.

[107] C-303/05, 3 May 2007, ECR I-3633, para.52.

[108] Ibid., para.10.

[109] Ibid., para.52.

[110] Ibid., para.13.

[111] Ibid., para.53.

[112] Keijzer, Op. Cit., p.60.

[113] Ibid.

[114] Ibid.

[115] Fichera, Op.Cit., p.60.

[116] Ibid.

[117] Fichera., Op. Cit..

[118] Catherine Heard and Daniel Mansell, ‘European Arrest Warrant: the role of judges when human rights are at risk’, New journal of European Criminal Law, Volume 2, 2011, 2, p.3.

[119] 161 Eur. Ct. H.R. (1989), para.90.

[120] Keijzer, Op. Cit., pp.140-141.

[121] Ibid., p.144.

[122] Arina Corsei, The EAW as an expression of mutual trust principle. Available at: http://www.ejtn.net/Documents/Themis%202012/THEMIS%202012%20ERFURT%20DOCUMENT/Written%20paper%20Romanian%20Team%201.pdf [accessed 01/08/2013].

[123] Ibid., p.219.

[124] Baker, Op. Cit.,, p.192.

[125] Valsamis Mitsilegas, ‘The Limits of Mutual Trust in Europe’s Area of Freedom, Security and Justice: From Automatic Inter-State Cooperation to the Slow Emergence of the Individual’, Yearbook of European Law, Vol. 31, No 1 (2012), p.327.

[126] Baker, Op. Cit.

[127] ‘Polish mother faces extradition to serve suspended sentence’, Fair Trials International, 2013. Available at: http://www.fairtrials.net/press/press-releases/polish-mother-faces-extradition-to-serve-suspended-sentence/ [accessed 27/07/2013].

[128] Ibid.

[129] Ibid.

[130] ‘European Commission criticizes disproportionate use of Arrest Warrants’, Fair Trials, Available at:   http://www.fairtrials.net/press/press-releases/european-commission-criticises-disproportionate-use-of-arrest-warrant/ [accessed 20/06/2013].

[131] Keijzer, p.220.

[132] ‘The final report on the fourth round of mutual evaluation’, Brussels, 16 March 2010. Available at: http://www.csm.it/Eurojust/CD/16.pdf [accessed 26/07/2013].

[133] Haggenmuller, Op. Cit.

[134] Haggenmuller, Op. Cit.

[135] Ibid.

[136] Ibid.

[137] Baker. Op. Cit.

[138] Ibid.

[139] Best evidence in EAW Cases ’, Introductory seminar 2009. Available at: http://www.justice.org.uk/data/files/resources/270/EAW-Project-Intro-Seminar.pdf [accessed 22/06/2013].

[140] Ibid

[141] Baker, Op. Cit.

[142] Ibid., p.164.

[143] ‘Best evidence in EAW Cases ’, Op. Cit.

[144] Keijzer, Op. Cit., p.227.

[145] Julian Assange v Swedish Prosecution Authority, [2012] UKSC 22, para. 90.

[146] Ibid., p.172.

[147] Catherine Heard and Daniel Mansell, ‘The European Investigation Order-changing the face of evidence gathering in EU cross-border cases’, Fair Trials International. Available at: http://www.fairtrials.net/publications/lectures-and-articles/njecl-article-on-european-investigation-order/ [accessed 27/07/2013].

[148] Ibid.

[149] (10a) ‘Directive of the European Parliament and of the Council regarding the European Investigation Order in criminal matters’, Council of the European Union, Brussels, 24 April 2013. Available at: http://www.statewatch.org/news/2013/apr/eu-council-eio-text-suggestions-8754-13.pdf [accessed 27/07/2013].

[150] Ibid.

[151] Heard, Op. Cit.

[152] Baker, Op. Cit.,p.85

[153] Ibid.

[154] Keijzer, Op.Cit., p.317.

[155] ‘Human Rights and extradition’, Parliamentary business. Available at: http://www.publications.parliament.uk/pa/jt201012/jtselect/jtrights/156/15605.htm [accessed 18/06/2013].

[156] ‘Anti-Social Behaviour, Crime and Policing Bill’, Session 2013-14. Available at: http://www.publications.parliament.uk/pa/cm201314/cmpublic/antisocialbehaviour/130716/am/130716s01.htm [accessed 04/08/2013].

[157] Ibid.

[158] Ibid.

[159] Ibid.

[160] ‘Article 8 the Right to respect for private and family life: home and correspondence’, Human Rights review 2012. Available at: http://www.equalityhumanrights.com/uploaded_files/humanrights/hrr_article_8.pdf [accessed 18/06/2013].

[161] Anand Doobay, ‘HH v The Deputy Prosecutor of the Italian Republic, Genoa [2012] UKSC 25’, 8 November 2012. Available at: http://www.petersandpeters.com/sites/default/files/publications/ELA%20AD.pdf [accessed 02/08/2013].

[162] Ibid.

[163] HH v Italy; FK v Polish Judicial Authority [2012] UKSC 25.

[164] Norris v Government of the United States of America (No 2) [2010] UKSC 9.

[165] Ibid., para.69-75.

[166] Ibid.

[167] ‘Norris case’, Press Summary. Available at http://www.supremecourt.gov.uk/decided-cases/docs/UKSC_2009_0052_PressSummary.pdf [accessed 31/07/2013].

[168] Ibid.

[169] Ibid.

[170] Norris, Op. Cit., para. 87.

[171] Ibid.

[172] Ibid., para.51.

[173] Ibid., para.56.

[174] Ibid., para.63.

[175] ‘Bars to extradition – Extradition orders – Justification – Necessary in democratic society – Proportionality – Right to respect for private and family life’.  Available at: http://alumni.coventry.ac.uk/Document.Doc?id=90 [accessed 04/08/2013].

[176] Ibid.

[177] Ibid.

[178] Ibid.

[179] [2010] EWHC 2262 (Admin).

[180] Doobay, Op.Cit.

[181] Ibid.

[182] Ibid.

[183] [2011] UKSC 4.

[184] Doobay, Op. Cit.

[185] Ibid.

[186] Rosalind English, ‘ZH Tanzania v Secretary of State for the Home Department’, One Crown Office Row, 2 February 2011. Available at: http://www.1cor.com/1315/?form_1155.replyids=1326 [accessed 05/08/2013].

[187] [2012] UKSC 25, Op.Cit.

[188] Ibid., para. 2

[189] Ibid., para.49-66.

[190] Ibid., para.35-43.

[191] Ibid., para.71-77.

[192] Ibid.

[193] Ibid., para.79.

[194] Ibid., para.45.

[195] Ibid., para.45-47.

[196] Ibid., para.29-33.

[197] ‘Supreme Court Rules on Children’s Rights in Extradition Cases’. Available at: http://www.no5.com/news-and-publications/news/346-supreme-court-rules-on-children-s-rights-in-extradition-cases/ [accessed 04/08/203].

[198] [2013] EWHC 526 Admin (transcript).

[199] Ibid., para.1-2.

[200] Ibid.

[201] Ibid., para.12.

[202] Ibid., para.18.

[203] [2013] EWHC 2603 (Admin).

[204] Baker, Op. Cit., p.165.

[205] Ibid.

[206] Ibid.

[207] Joachim Vogel and J. R. Spencer, ‘Proportionality and the European Arrest Warrant’, Criminal Law Review [2010], p.479.

[208] Ibid., p.476.

[209] Anand Doobay, ‘Challenging the European Arrest Warrant’, Criminal Law News, June 2010, Issue 20, p. 8.

[210] Fairhurst, Op. Cit.Ibid., p. 33.

[211] Vogel, Op. Cit., p. 482.

[212] Doobay, Op. Cit.

[213] Vogel, Op. Cit.

[214] Fairhurst J, Law of the European Union, 8th edn, (Harlow: Pearson, 2010), p. 32.

[215] Baker, Op. Cit., p. 170.

[216] Sandru v Government of Romania [2009] EWHC 2879 (Admin).

[217] Ibid.

[218] Ibid.

[219] Ibid. para 14.

[220] Ibid. para 15.

[221] Vogel, Op.Cit., p.474.

[222] C-396/11 [2013], ECR-0000, para.103.

[223]C-396/11 [2013], ECR-0000.

[224] Ermioni Xanthopoulou, ‘The Radu judgment: a lost opportunity and a story of how the mutual trust obsession shelved human rights’, King’s Student Law Review, March 27, 2013. Available at: http://kslr.org.uk/blogs/europeanlaw/2013/03/27/radu-judgment-a-lost-opportunity-and-a-story-of-how-the-mutual-trust-obsession-shelved-human-rights/ [accessed 22/06/2013].

[225] Ibid., Opinion of Advocate-General Sharpston, para. 73.

[226] Ibid., para. 82.

[227] Ibid., para. 82 and 85.

[228] Ibid., para. 60 and 61.

[229] Ibid., Judgment of the Court (Grand Chamber), para. 40.

[230] Ibid., para. 40 and 42.

[231] Xanthopoulou, Op. Cit.

[232] Anita Davies, ‘Radu-a case of failed dialogue’, Matrix Chambers, February 5, 2013. Available at: http://eutopialaw.com/2013/02/05/radu-a-case-of-failed-dialogue/ [accessed 22/06/2013].

[233] Joined Cases C-411/10 N.S. v Secretary of State for the Home. Department and C-493/10 M.E. and Others v Refugee Applications, para.105.

[234] Haggenmuller, Op.Cit.

[235] Ibid.

 

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