Following arrest in the Executing State pursuant to the EAW, the requested person must appear in court to state whether or not they consent to surrender. EAW proceedings are intended by the EU to be speedy. A final decision upon surrender where a person does not consent must take place within 60 days of arrest, extendable by a further 30 days (Article 17 EAW FD).

Although the EAW does not expressly specify it, in practice, there should be an initial hearing at which the person can consent to surrender, and if they do not, the hearing should be adjourned for the arguments against surrender to be fully considered. In some Member States there is no further oral hearing and all submissions will have to be made in writing. Nevertheless, you could argue that a further oral hearing is necessary, in particular when oral evidence has to be heard. You could argue that the intention of Articles 13 and 14 EAW FD is that a further, substantive oral hearing should take place, in order for your client to be properly heard on why one or more refusal grounds apply to his or her case.

You should explain to the court that you will need to prepare the arguments and to obtain evidence with the assistance of an ISL, in accordance with Directive 2013/48/EU on the right of access to a lawyer (see Section H). You may also need to submit to the court that it should request further information from the Issuing State in order to make its decision regarding surrender, pursuant to Article 15 EAW FD, which will require an adjournment of the surrender hearing.

You will then need to make submissions based on the refusal grounds that apply in your case (section E and section F). As explained above, you will need to present evidence to support these grounds. Much of this can be obtained with the assistance of an ISL.

If appropriate, you may also need to challenge the imposition of detention in the Executing State pending surrender. In most cases your client will want to receive bail instead of remaining detained. Nevertheless, since detention periods in the Executing State must be deducted from any prison sentence in the Issuing State (Article 26 EAW FD), you should evaluate together with your client and an ISL whether it is more suitable for the client to remain in detention (especially but not exclusively where the EAW is for the purposes of serving an enforceable prison sentence or where it is highly likely that they will be convicted in the Issuing State to a prison sentence). This will involve comparing prison conditions and treatment of people in detention.

Article 12 EAW FD states that a requested person may be kept in detention following their arrest, or provisionally released in accordance with the Executing State’s laws, providing all necessary steps are taken to prevent the person from absconding.

Making an application for detention not to be applied will be similar to making an application for pre-trial detention not to be applied in a national criminal case. In addition to the usual grounds based on national law, if you can persuade the court from the outset that a refusal ground may apply, that will facilitate the application of an alternative measure.

Article 6 CFR/article 5 ECHR on the right to liberty and security of the person can also be invoked. In general, to avoid being arbitrary, detention under Article 5(1)(f) ECHR must be carried out in good faith; it must be closely connected to the ground of detention relied on by the state; the place and conditions of detention should be appropriate; and the length of the detention should not exceed that reasonably required for the purpose pursued: A v UK App. No. 3455/05 (judgment 19^th February 2009); see also Yoh-Ekale Mwanje v. Belgium App. No. 10486/10 (judgment 20^th December 2011) at [117-119] and cases cited therein.

This can change during the course of proceedings, and can be re-visited if it is taking a long time for the surrender decision to be made. You should consider whether an application for the requested person’s release should be made initially, and then later on if a long time has passed.

Although the CJEU has held that there is no requirement to release a requested person simply because the time limits for a decision on surrender to be taken have expired, the continuing detention of the person must not be excessive in all the circumstances of the case and in accordance with article 6 CFR:  Case C-237/15 PPU Lanigan (16^th July 2015). This requires the Executing State court to assess the crime for which the person is requested; the likely sentence they will receive; and any risks posed. It must then balance this assessment against whether there has been due diligence in progressing the EAW request in both Issuing and Executing States, to decide if continuing detention is proportionate (Lanigan at [58] and [59]). The court must also consider if any measures should be attached to the provisional release to prevent the person absconding and ensure that they can be returned should a surrender decision be made (at [61]).

You should assist the court by making suggestions for alternative measures, such as surrender of the requested person’s passport or presenting themselves at a local police station, if the Executing State has these options in its laws. You should always consult the ISL in order to try to have the EAW revoked or substituted by another measure in the Issuing State.

i. National law appeal

The EAW FD has no provision concerning the right to appeal a surrender decision. Notwithstanding, most jurisdictions confer upon the requested person the right to appeal against such decisions (the CJEU has already confirmed that this is in conformity with EU law – Case C-188/13 PPU Jeremy F. (30th May 2013). Therefore you should confirm whether your national law entitles the requested person to appeal against a surrender decision. Ensure that you are aware of the deadlines for lodging an appeal in EAW proceedings as these might be shorter than the regular deadlines for lodging appeals in criminal cases.

ii. Reference to the CJEU for a preliminary ruling

If the meaning of EU law is unclear during the execution procedure, questions may be referred to the CJEU for a preliminary ruling as foreseen by Article 267 TFEU[12]. A court of final instance on the specific question at issue has an obligation to make a reference where a ruling from the CJEU is necessary to enable it to give judgment. The procedure operates at the initiative of the national court, which, in a written order sent to the CJEU, summarises the case, explains how its decision turns on the point of EU law and asks specific questions concerning interpretation of provisions of EU law.[13] This and the rest of the procedure, including the filing of written observations by the parties to the national case and hearings before the CJEU, will be in the national court’s language. The ordinary timeframe for the ruling is a little over one year. However, the national court may ask the CJEU to apply its urgent procedure (which reduces the timeframe to less than two months) where the CJEU’s ruling may lead to the release of a person in detention (in this context, because they are detained pending execution of an EAW and the CJEU’s decision could entail the refusal of surrender). As a lawyer in the Executing State you can make an application to your national court raising a question of interpretation or validity of a provision of EU law applicable in your case and requesting that your national court make a reference to the CJEU.

 

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[12] The organisation Fair Trials has produced a guide to the Court of Justice of the European Union in criminal practice which includes a training module.

[13] The CJEU has produced recommendations for national courts.

i. Postponement of removal

Although the court may decide to surrender, there are two circumstances in which the surrender may be temporarily postponed.

Firstly, Article 23(4) EAW FD provides for where it would manifestly endanger the requested person’s life or health. You should rely on this ground where your client is suffering from an illness that cannot be properly treated in the Issuing State, or moving them would aggravate their illness. You may have already relied on these circumstances under Article 4 CFR as an argument for permanent refusal. Article 23(4) provides an alternative by which to at least delay the surrender. You will need expert medical evidence to support this argument, and an ISL to assist in obtaining evidence concerning treatment in the Issuing State.

Secondly, Article 24 EAW FD allows for postponement where the requested person is already being prosecuted or is serving a sentence for a different criminal act to the EAW in the Executing State. The Executing and Issuing State judicial authorities may agree for a temporary surrender in the alternative, the terms of which are for them to agree. This may be demanded by the Issuing State if there is some urgency in progressing the case for which the EAW has been issued. You will need to ensure the most favourable position for your client in terms of prison conditions, deduction of prison days from the relevant sentence, their family life, and in which jurisdiction it is in fact better that proceedings progress in order to ensure a fair trial. You should consult with both your client and the ISL before making submissions to the Executing State court.

For either scenario, the requested person must be surrendered as soon as the grounds of postponement have ceased.

ii. Execution (time-limit for removal)

According to Article 23(1) EAW FD the requested person should be surrendered as soon as possible on a date that is agreed between the Executing State and the Issuing State. In any event, a requested person should be surrendered no later than 10 days after a final decision is taken on the execution of the EAW.

If the surrender of the requested person is prevented by circumstances beyond the control of any of the Member States, the executing and issuing judicial authorities are to immediately contact one another and agree on a new surrender date. Removal must then take place within 10 days of the new date agreed. This often occurs if arrangements cannot be made for the removal of the requested person because no flights are available.

If Article 23(4) EAW FD has been applied (see above), the executing judicial authority must immediately inform the issuing judicial authority and agree on a new surrender date. In that event, the surrender shall take place within 10 days of the new date thus agreed.

iii. Non Execution of removal

If the time limits imposed for removal are not met, and no alternative arrangements have been made, a requested person in detention in the Executing State must be released (Article 23(5) EAW FD). You should request immediate release, should this not be ordered by the authorities.

Notwithstanding the CJEU has ruled that in certain circumstances the person may be kept in detention. The CJEU has ruled that where it was not possible to surrender the person on the 10 days following the decision, or on the first new date, Article 23 (3) requires the Issuing and Executing Authorities to agree on a second new date. Article 23 (3) will apply (i.e. the second new date has to be within 10 days of the first new date) and if removal of the person was impeded due to reasons de force majeure, the person may be kept in detention, as long as not for an excessive period (‘only in so far as the surrender procedure has been carried out in a sufficiently diligent manner and in so far as, consequently, the duration of the custody is not excessive. In order to ensure that that is indeed the case, that authority will be required to carry out a concrete review of the situation at issue, taking account of all of the relevant factors’ – C-640/15, Tomas Vilkas (25^th January 2017), §43). Force majeure may exist in circumstances such as ‘on account of the repeated resistance of that person, in so far as, on account of exceptional circumstances, that resistance could not have been foreseen by those authorities and the consequences of the resistance for the surrender could not have been avoided in spite of the exercise of all due care by those authorities’, which is for the Executing court to ascertain.

This applies even where the time limits of Article 15 (1) have expired, but if there was no situation of force majeure, then the person has to be released from custody pending his or her removal (C-640/15, Tomas Vilkas (25^th January 2017), §§39, 66, 72-73).

Articles 47 to 50 CFR (see above Section E.3) are also relevant to EAW proceedings, with respect to whether a person will receive due process rights in the Executing State during the EAW hearing.

With respect to article 47 CFR, the Explanations to the Charter confirm that EU law has gone further than the ECHR in that the right to an effective remedy is guaranteed before a court: Case 222/84 Johnston [1986] ECR 1651 et seq., not just a national authority as is set out in article 13 ECHR. The right to a fair trial is also not confined to disputes relating to civil law rights and obligations, or a criminal charge, as article 6(1) ECHR is. This means that article 47 CFR could potentially be invoked in the Executing State to seek due process rights in the course of the surrender proceedings, which has not been possible under article 6 ECHR. For example, if the court refuses to allow an adjournment for you to prepare your case for the surrender hearing, or refuses to hear evidence from experts or an ISL, or does not provide a translation of the EAW or an interpreter to assist your client. However, there is no jurisprudence from the CJEU as yet as to whether the article can be applied in this way.