the European arrest warrant - Statewatch

4.3. Choice of the instrument
The same concern for effectiveness underlies the option in favour of a Framework Decision
for the creation of the European arrest warrant. The many Conventions drawn up under the
Council of Europe, in European political cooperation or in the European Union have had
limited success, as progress in ratifications attests. Both the legal order flowing from the
Amsterdam Treaty and the advanced state of judicial cooperation between Member States
justify the creation of the European arrest warrant by a Framework Decision which, under
Article 34 of the Union Treaty, would be “binding upon the Member States as to the result to
be achieved but shall leave to the national authorities the choice of form and methods”.
4.4. An instrument concerned to protect fundamental rights
The proposed system has a dual objective. First, in terms of the effectiveness of
law-enforcement, it draws the conclusions of opening the borders within the European
law-enforcement area by making it easier for justice to be administered across borders
between Member States. In this respect, the mechanism is a major contribution to the fight
against transnational organised crime. Moreover, this system addresses the European citizens’
concerns for the protection of individual rights.
Several points must be made here:
1. provision is made for the presence of legal counsel and, if necessary, an interpreter as
from the time of arrest under a European arrest warrant (Article 11);
2. where a person is arrested on the basis of a European arrest warrant the judicial authority
in the issuing Member State will be under a duty to rule on the question of his
maintenance in custody on the basis of the assurances he gives as to his subsequent
appearance. If adequate assurances are given, a person arrested on the basis of a
European arrest warrant may be released, conditionally if appropriate, in the executing
State, pending presentation to the issuing authority at a date that is appropriate for the
current procedure (Article 14). This mechanism is designed to avoid remanding people in
custody for extended periods, sometimes merely because the person is geographically
remote. Similarly, the issuing judicial authority may decide to suspend the execution of
the European arrest warrant when the person arrested voluntarily undertakes to appear
(Article 13 (3));
3. a person against whom a judgment has been given in absentia must be retried after
lodging an opposition with the executing judicial authority (Article 35);
4. the number of cases where provisional detention is pronounced mainly to ensure that
people reside in other Member States are amenable to the courts should be limited,
because the effectiveness of the European arrest warrant improves the assurance that
people will actually be surrendered to and appear before the issuing judicial authority
(Article 17);
5. transfers that are neither useful nor necessary will be avoided by the use of
videoconferencing (Article 34). Similarly the execution of a penalty in the place where
the condemned person can best be reintegrated should be encouraged (Articles 33 and
36);
6. criminal proceedings will be accelerated, in particular because of the increased practice of
temporary transfers from one State to another (Articles 39 and 40), which will contribute
to enforcing litigants’ right to have judgment given within a reasonable time. Set within a
strict ninety-day limit (Article 20), the procedure for the European arrest warrant should
make an important contribution to respect for the principle of the reasonable period;
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