European arrest warrant

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The European Arrest Warrant ( EAW ) is an instrument for EU- wide enforcement of a national arrest warrant based on a framework decision of June 13, 2002. It simplifies and shortens the extradition of offenders or suspects, since the country requested for extradition is generally not allowed to check the legality of the arrest warrant.

functionality

The judicial decision on the arrest warrant issued in an EU member state is made in this context "according to the principle of mutual recognition", i.e. H. largely automatic, recognized by the requested Member State and the wanted person arrested there and "surrendered" (extradited) for the purpose of prosecution or enforcement . The EAW also obliges the EU member states to extradite their own citizens to other EU countries, but the states can at least insist on enforcing the penalties imposed on their citizens themselves (Art. 4 No. 6, 5 No. 3; same applies to persons residing in the requested state).

The Framework Decision names 32 criminal offenses or areas of offense in which extradition must take place even if the act is not at all punishable under the law of the extraditing state (Art. 2, Paragraph 2; the requirement of mutual criminality is waived). These offenses include a. Participation in a criminal organization, terrorism, human trafficking , sexual exploitation of children and child pornography, drug trafficking, illicit trafficking in arms, ammunition and explosives, corruption, fraud, money laundering, counterfeiting of money and other means of payment, cyber crime, environmental crime, aiding and abetting illegal entry and on illegal residence, deliberate homicide, serious bodily harm, organ trafficking, kidnapping, deprivation of liberty and hostage-taking, racism and xenophobia, extortion and extortion of protection money, counterfeiting and product piracy, forgery of official documents and trade in them, trafficking in stolen motor vehicles, rape, arson, aircraft and ship hijacking and sabotage.

The Justice and Home Affairs Council on a proposal from the European Commission and after consulting the European Parliament adopted the Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States.

Reasons for origin

  • Realization of the idea of ​​creating an " area of ​​freedom, security and justice " (Art. 67 (1) TFEU), in particular by effectively combating organized crime,
  • Strengthening and simplifying international cooperation in criminal matters,
  • Creation of a uniform European legal area for extraditions by abolishing the formal extradition procedure.

These objectives are to be achieved through better compatibility, greater convergence of the legal systems of the Member States and the recognition and enforcement of judgments and decisions throughout the Union.

Differences to the previous extradition law

  • direct cooperation of the judicial authorities without using the diplomatic channel and waiving the so-called approval procedure,
  • shortened handover deadlines,
  • The application of the principle of mutual recognition of judicial and extrajudicial decisions means that an EAW issued in one issuing Member State can only be enforced in any other Member State (executing State) subject to certain grounds for refusal (Art. 3 of the Framework Decision ),
  • extensive waiver of the requirement of mutual criminal liability,
  • general obligation to extradite own nationals,
  • Involvement of auxiliary instruments and bodies (such as: Eurojust , European Judicial Network , SIS )

Come into effect

This new instrument of judicial cooperation in criminal matters should be implemented in the legal systems of the member states of the EU by December 31, 2003 by taking all necessary implementation measures (Art. 34 (1)). According to the Accession Treaty (Art. 2), the deadline for incorporating the EAW into national law with regard to the 10 new candidate countries expired on May 1, 2004.

Implementation in the EU member states

Germany

The law on the European Arrest Warrant (EAW), first passed by the Bundestag , was unconstitutional and void after the judgment of the Federal Constitutional Court on July 18, 2005. The law interferes disproportionately with the fundamental right to freedom of extradition ( Art. 16 GG) and the guarantee of legal recourse ( Art. 19 (4) GG). Germany has not implemented the EU requirement in a way that protects fundamental rights, according to the ruling. Three judges each issued a special opinion on the verdict . The complainant was the German-Syrian Mamoun Darkazanli, a suspected terrorist in extradition custody for Spain.

The Bundestag and Bundesrat responded with a legislative procedure for a renewed edition of the EuHbG. The points criticized as unconstitutional by the Federal Constitutional Court were revised, and the remaining provisions were largely taken from the original law. The new implementation law was signed on July 20, 2006 by Federal President Horst Köhler and came into force on August 2, 2006. It was implemented by adapting the law on international mutual legal assistance in criminal matters (IRG) , to which the new sections 78 to 83i IRG were added.

With reference to Article 1, Paragraph 1 of the Basic Law, the Federal Constitutional Court ruled in the decision on the European Arrest Warrant II : "Sovereign acts of the European Union and - insofar as they are determined by Union law - acts of German public authority are fundamental with a view to the priority of application of Union law not to be measured against the standard of the basic rights enshrined in the Basic Law. However, the priority of application only extends to the extent that the Basic Law and the Consent Act permit or provide for the transfer of sovereign rights. It is limited by the constitutional identity of the Basic Law designed in Article 23, Paragraph 1, Clause 3 in conjunction with Article 79, Paragraph 3 of the Basic Law, which is constitutional change and integration-proof ”. This results in a constitutional control of EU law by the Federal Constitutional Court because of a violation of human dignity. The Federal Constitutional Court has thus prevented the execution of an EU arrest warrant. The judgment develops the case law of the Federal Constitutional Court on the relationship between domestic and Union law. This was preceded by the key decisions Solange I , Solange II , Maastricht and Lisbon .

In February 2019, the Irish High Court referred the question to the European Court of Justice for a preliminary ruling as to whether two European arrest warrants, which had been issued by the public prosecutor's offices at the Lübeck Regional Court and the Zwickau Regional Court , had been lawfully issued. In Joined Cases C-508/18 and C-82/19, the court had to interpret the characteristic of the "issuing judicial authority" in accordance with Article 6 of Framework Decision 2002/584 / JHA and came to the conclusion in its judgment of May 27, 2019 that the European arrest warrant is a "judicial decision" and that it must therefore be issued by a "judicial authority". This does not have to be a court, but can also be another authority that is involved in the administration of criminal justice; however, in contrast to ministries or police authorities in particular, it may not belong to the executive branch. A European arrest warrant can therefore only be issued by the public prosecutor's office of a member state that is not “exposed to the risk”, “in the context of the issuing of a decision on the issuing of a European arrest warrant, direct or indirect orders or individual instructions from the executive, such as a justice minister, to be subjected. ”These requirements have not yet been met in the German judiciary. The decision triggered a discussion about the independence of the public prosecutor's offices and a related revision of the judicial organization in Germany.

Austria

In Austria, the provisions on the European arrest warrant were mainly set out in the Federal Act on Judicial Cooperation in Criminal Matters with the Member States of the European Union (EU-JZG). In Austria, a court decides on the issue of a European arrest warrant at the request of the public prosecutor's office. If necessary, the court has to arrange for the wanted person to be advertised in the Schengen information system in accordance with Art. 95 CISA by way of the competent security authorities.

As in Austria, like in Germany, public prosecutors are bound by the instructions of the Minister of Justice and are not independent, the issuing of EU arrest warrants by public prosecutors in Austria is not permitted under EU law . As the ECJ has pointed out, being bound by purely theoretical instructions also damages the necessary independence that would be required for public prosecutors to issue an EU arrest warrant.

See also

literature

  • Heiko Ahlbrecht: International criminal law in practice. Müller, Heidelberg 2008, ISBN 978-3-8114-4352-5 .
  • Martin Böse: The principle "ne bis in idem" and the European arrest warrant: European public policy vs. mutual recognition. Discussion of the ECJ, ruling v. November 16, 2010, case C-261/09 - Gaetano Mantello, HRRS 2011 No. 970 , HRRS 01/2012, 19 ( hrr-strafrecht.de ).
  • Stefan Braum: The European arrest warrant - the engine of European criminal justice? - Comments on the judgment of the European Court of Justice of 3 May 2007 Case C-303/05 (Advocaten voor de Wereld VZW v Leden van de Ministerraad) -. In: wistra . Journal of Commercial and Tax Criminal Law, 26th year, 2007, pp. 401–405.
  • Eckhart von Bubnoff: The European arrest warrant . CF Müller, Heidelberg 2005, ISBN 3-8114-7345-X .
  • Bernd von Heintschel-Heinegg , Daniel Rohlff: The European arrest warrant. In: GA 2003, ISSN  0017-1956 , p. 44.
  • Johannes N. Henke: The European arrest warrant - development and difficulties. Meidenbauer, Munich 2008, ISBN 978-3-89975-846-7 .
  • Pawel Nalewajko: The European arrest warrant: current developments in Poland . In: Journal for International Criminal Law Doctrine. No. 3/2007, pp. 113–118 online edition (PDF; 0.1 MB)
  • Daniel Rohlff: European arrest warrant. Lang, Frankfurt am Main 2003, ISBN 3-631-51181-7 .
  • Helmut Seitz: The European Arrest Warrant Act. In: New journal for criminal law. 2004, ISSN  0720-1753 , p. 546.
  • Frank Schorkopf (Ed.): The European arrest warrant before the Federal Constitutional Court . Mohr Siebeck, Tübingen 2006, ISBN 3-16-148983-7 .
  • Bernd Schünemann: European arrest warrant and draft EU constitution on an inclined plane. In: Journal for Legal Policy. 2003, ISSN  0514-6496 , p. 185.
  • Carsten Wegner: European Commission proposal for a European arrest warrant. In: The criminal defense attorney. 2003, ISSN  0720-1605 , p. 105.

Web links

Individual evidence

  1. ↑ a b Framework Decision 2002/584 / JI of June 13, 2002 (PDF)
  2. ↑ BGBl. 2004 I p. 1748 (PDF)
  3. ↑ Error in the thought system - During the negotiation of the "European arrest warrant", the government and parliament embarrassed themselves. The procedure becomes the acid test for Europe. In: Der Spiegel. 16/2005 of April 18, 2005.
  4. ↑ Law for the implementation of the framework decision on the European arrest warrant and the surrender procedures between the member states of the European Union (European Arrest Warrant Act - EuHbG) (G-SIG: 16019109) in the DIP
  5. ↑ European Arrest Warrant Act - EuHbG - text and amendments, ( BGBl. I p. 1721 ; PDF)
  6. ↑ BVerfG, decision of December 15, 2015 - 2 BvR 2735/14
  7. ↑ Quoted from: Press Release No. 4/2016 of January 26, 2016 .
  8. ↑ https://curia.europa.eu/jcms/upload/docs/application/pdf/2019-05/cp190068de.pdf
  9. ↑ ECJ, Judgment of the Court of Justice (Grand Chamber) of May 27, 2019 , ECLI: EU: C: 2019: 456, Joined Cases C-508/18 and C-82/19 PPU = HRRS 2019 No. 553 .
  10. ^ Annelie Kaufmann, Markus Sehl: ECJ on European arrest warrant: German public prosecutors are not independent. In: Legal Tribune Online. May 27, 2019, accessed May 27, 2019 .
  11. ^ Christian Rath: Too dependent for Europe . In: The daily newspaper: taz . May 28, 2019, ISSN  0931-9085 , p. 10 ( taz.de [accessed on May 28, 2019]).
  12. ↑ Klaus Ferdinand Gärditz: Juge d'instruction as a common European model? In: Verfassungsblog . May 27, 2019, accessed May 28, 2019 .
  13. ↑ Federal Law Gazette No. I 36/2004
  14. ↑ Joined Cases C ‑ 508/18 and C ‑ 82/19 PPU.