the European arrest warrant - Statewatch

But as the principle of double criminal liability is abolished, it is not necessary to place a
minimum limit on the penalty incurred in the Executing State. The European arrest warrant
must be carried out whatever the amount of the penalty incurred in the executing State. This
principle explains the absence of a reference to the situation referred to Article 2(2) of the
1996 Convention.
For the appraisal of the minimum sentence for the issuance of a European arrest warrant,
judgments in absentia are treated as final judgments, as was already the case in the 1957
Convention (cf. Explanatory Report). But with regard to the execution of judgments imposing
penalties of more than four months, the system of the 1957 Convention envisaged a
cumulative condition with the legal maximum incurred for the same offence. This condition is
abolished here since it is the judgment itself which is recognised, the penalty incurred no
longer being a relevant element once sentence has been passed.
Likewise, the situation referred to in Article 2(2) of the 1957 Convention is no longer relevant
since, subject to Article 41 of this Decision, the principle of speciality is abolished.
Certain Member States (including the Benelux and Nordic countries) have concluded
agreements among themselves to extend the field of extradition below the minima laid down
in the 1957 Convention. It will be for them to decide if they maintain the principle of
extradition for these cases or are satisfied with extending the scope of the European arrest
warrant among themselves.
Article 3 - Definitions
(a) The European arrest warrant is a warrant for search, arrest, detention and surrender to the
judicial authority of the issuing country. In the previous system, under the 1957
Convention as implemented by the Schengen Convention, the provisional arrest warrant
and the extradition request were two separate phases of the procedure. Pursuant to the
principle of mutual recognition of court judgments, it is no longer necessary to
distinguish the two phases. The arrest warrant thus operates not only as a conventional
arrest warrant (search, arrest and detention) but also as a request for surrender to the
authorities of the issuing State.
But the four obligations imposed on Member States by the European arrest warrant do
not have the same legal status. The search and arrest functions are binding on the
executing State even in the marginal exclusion situations (Articles 27, 28, 30 and 31). But
the detention of the requested person will require a specific decision by a judicial
authority (Article 14). In the absence of that person(s consent, a court order will also be
required for surrender to the issuing judicial authority.
(b) The procedure of the European arrest warrant is based on the principle of mutual
recognition of court judgments. State-to-State relations are therefore substantially
replaced by court-to-court relations between judicial authorities. The term “judicial
authority” corresponds, as in the 1957 Convention (cf. Explanatory Report, Article 1), to
the judicial authorities as such and the prosecution services, but not to the authorities of
police force. The issuing judicial authority will be the judicial authority which has
authority to issue the European arrest warrant in the procedural system of the
Member State (Article 4).
(c) With regard to the executing judicial authority, several procedural mechanisms are
possible depending whether the simplified procedure applies or not (Article 16). It will be
the prosecution service or a judge, depending on the procedure applicable in the
Member State. The term “executing judicial authority” will cover one or the other, as the
case requires. But it must always be the authority that takes the decision to execute the
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