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European Arrest Warrant: invoking alternative measures remains an uphill struggle for defendants in the UK

admin - October 8, 2018 - European Arrest Warrant; European Supervision Order; European Investigation Order

 

As Fair Trials has documented in its “Beyond Surrender” report, the European Arrest Warrant (EAW) has a shocking impact on the lives of people who get transferred from one EU country to another, kilometres away from their loved ones, often forced out of their jobs, and left languishing in poor pre-trial detention conditions for months.

Diana Czugler of the law firm Peters & Peters LLP looked into whether alternative measures could be invoked as a way to challenge EAWs. Member States have other less disruptive tools to investigate alleged offences and prosecute suspects, such as the European Supervision Order (ESO), which allows them to ask another Member State to supervise a person in that country, rather than sending the person back to the requesting Member State to be held in pre-trial detention. Another available alternative measure is the European Investigation Order (EIO), which enables one Member State to seek evidence which is located in another Member State.

However, looking at judicial practice in the UK, courts appear to be struggling to consider such tools as viable alternatives to EAWs, which continue to be relied upon by Member States even if less intrusive measures are available.

In the 2015 case of Puceviciene v Lithuanian Judicial Authority, the English High Court ruled that an EAW cannot be rejected solely because the requesting State did not consider alternative measures before issuing the EAW itself.

Based on the UK Extradition Act 2003, a person may seek to challenge an EAW on the basis that alternative measures should have been deployed instead, on the basis of three main grounds.

Firstly, that the EAW is premature and that the requesting State has not yet made a decision to charge or try them (absence of prosecution decision).

Secondly, that extradition would be incompatible with the European Convention on Human Rights or that it would be disproportionate. When considering the question of proportionality, judges can consider whether alternative less coercive measures could be deployed. However, the UK Extradition Act does not give any further detail as to what these alternative measures might be.

Thirdly, that measures of international judicial cooperation can be pursued instead of extradition. In fact, the Extradition Act enables either the requesting judge or the defendant to apply for alternative arrangements. In the meantime, the extradition proceedings can be put on hold for up to 7 days. This option is however severely limited by the fact that both parties need to agree on such arrangements.  

In Puceviciene, the High Court dismissed the grounds for challenge in respect of four appeals brought against EAWs on the basis that the EAWs were inappropriate and disproportionate because measures of international judicial cooperation had not been fully utilised by the requesting State.

The High Court considered that the availability of alternative measures of international judicial cooperation could not be invoked to challenge the use of the EAW entirely, but only to suspend it, because a defendant cannot be compelled to participate in interviews pursuant to an international judicial cooperation request without an EAW to back up that request.

This approach has been largely followed by reported judicial decisions since, and reflects the difficulty in practice for defendants seeking to challenge an EAW on the basis of alternative available measures.

The Puceviciene decision mirrors the poor use that is made of alternative instruments to EAWs, even though the UK’s central prosecution authority, the Crown Prosecution Service, has been actively encouraging their use.

Research undertaken by Fair Trials and published by Penal Reform International at the end of 2015 suggested that the initial reception of ESOs had been lukewarm at best, with professionals from across Member States reporting that “courts had demonstrated close to no willingness to make use of the ESO, and that there had been no known cases of its use”.

Such a poor implementation of both instruments is pushing some practitioners to argue that it might be more fruitful to liaise with the issuing judicial authorities directly to see whether alternative arrangements can be agreed to between the parties, instead of challenging the EAW on the basis that alternative tools have not been properly considered.

You can read a more in-depth legal analysis of challenges to the EAW based on alternative measures in this document produced by Diana Czugler, of Peters & Peters Solicitors LLP.

If you are a journalist interested in this story, please telephone Fair Trials’ press department on +44 (0) 20 7822 2370 or +32 (0) 2 360 04 71.

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