The EAW is merely a tool for giving effect to criminal prosecution in the Issuing State. Therefore the root of the problem is in the Issuing State and can only be solved in the long-term with the intervention of a lawyer there. Therefore it is apparent that the effective exercise of a person’ rights in the scope of EAW proceedings is not possible without dual representation.

The arrested person has the right to the assistance of a lawyer in the Issuing State pursuant to Directive 2013/48/EU on the right of access to a lawyer. This states that the ISL’s role is:

“to assist the lawyer in the Executing State by providing that lawyer with information and advice with a view to the effective exercise of the rights of requested persons under Framework Decision 2002/584/JHA” (article 10 (4) Directive 2013/48/EU).

This Directive recognised explicitly the need for “dual representation” or “double defence” in EAW cases, which had been advocated for many years.

In 2016 a Directive on legal aid was also published. Article 5 Directive 2016/1919/EU ensures the right of requested persons to legal aid in the Executing State upon arrest pursuant to an EAW until they are surrendered, or until the decision not to surrender them becomes final. It also states that requested persons who are the subject of an EAW for the purpose of conducting a criminal prosecution and who exercise their right to appoint a lawyer in the Issuing State in accordance with Article 10(4) and (5) of Directive 2013/48/EU have the right to legal aid in the Issuing State for the purpose of such proceedings, in so far as legal aid is necessary to ensure effective access to justice.

These rights may be subject to a financial means test.

In order to be effective, dual representation must involve the provision of legal assistance (legal consultation or advice and legal representation) by lawyers from two different jurisdictions, concomitantly and subsequently, in a coordinated manner, which is required by the cross-border dimension of the case. In some cases the intervention of lawyers from more than two jurisdictions is required. In these cases the expression “multiple representation” would be more accurate.

Dual representation enables genuine reasons for refusal of execution of an EAW to be properly argued and spurious ones to be discontinued. Therefore, the intervention of a lawyer from the Issuing State is essential to help both the lawyer and the court in the Executing State to assess the verification of any refusal grounds as swiftly as possible. Many, if not most, rights of the requested person in EAW proceedings may only be exercised effectively by the two lawyers in cooperation.

It will have become evident from the previous chapters that, although it is usually the Executing State lawyer (“ESL”) who has first contact with the case and an important role in initially advising the client, she cannot give effective and full legal advice without consulting a lawyer in the Issuing State.

You, as the ESL, should therefore contact a lawyer in the Issuing State as soon as you start acting. If you do not know one you can ask for help via existing networks (for example on the ECBA “Find a Lawyer” webpage). You can also request that the authorities of the Executing State seek information from the authorities of the Issuing State on how to appoint a lawyer in the Issuing State (Article 10(5) Directive 2013/48/EU).

After a decision on the execution of the EAW, your role will also be to ensure that: specialty is not violated, the detention period served in the Executing State is deducted in the Issuing State, pending alerts are deleted, resolution of conflicts of jurisdiction is triggered and, if applicable, transfer of your client to serve their sentence in the Executing State takes place (see below section H.3).

i. Assisting and Advising the ESL

Consent and Specialty

The decision on consent and the renunciation of the specialty principle depend mostly on information concerning the Issuing State (see section D.3). In your capacity as an ISL you should advise the ESL whether there are other pending proceedings against the client and whether it is beneficial for him to waive specialty (for example, if the EAW is for purposes of serving a sentence and the client has further outstanding sentences to serve, in certain jurisdictions it is more convenient for him to be able to serve them together, since this will result in less prison time than serving sentences consecutively).

Refusal Grounds

You should assist the ESL in assessing whether there are any refusal grounds. In particular, the following might be relevant:

Any ne bis in idem defence will depend on a proper assessment of the facts being prosecuted in the Issuing State (see above section E.1). As an ISL you should consult the case files, conduct the necessary analysis and provide the ESL with a copy of the case materials, as well as with an expert opinion on whether the cases cover the same acts, if necessary and requested.

You should provide the ESL with details on whether proceedings have been conducted in absentia and on whether proceedings in place according to your national law comply with Council Framework Decision 2009/299/JHA (26^th February 2009) [15], namely: if the person has been duly informed of the proceedings and date of the trial; has waived her right to be present; and whether your national law provides for the right to a new trial (see above E.2 Optional Refusal Grounds section viii).

Acting as ISL you should also provide information to the ESL on whether prison conditions are adequate and help her check whether assurances concerning prison conditions or life sentences are reliable (see above sections E.3 Refusal on the grounds of fundamental rights and F. Guarantees to be given before a requested person can be surrendered).

Application for bail in the Executing State

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 the ISL and client whether it is more suitable for the client to remain in detention there (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.

Removal of Schengen and Interpol Alerts

Your intervention as an ISL may be necessary for flagging of a Schengen or Interpol Alert, or for finding out whether such alerts are in place (see section I).

Conflicts of Jurisdiction

Where the criminal activity is cross border and arrest warrants have been issued by multiple countries, it is your duty as ISL to consider, together with the ESL and where applicable a lawyer in a third EU Member State, which is the most appropriate jurisdiction for your client to be prosecuted in. This evaluation must consider the most adequate legal means for your client to be prosecuted in that jurisdiction, including to consider whether any action should be taken with the relevant authorities, or not (see section J).

If a conflict of jurisdiction is not solved, as soon as there is a final decision in one of the Member States involved, it is the duty of the ISL to inform the lawyers of the other relevant Member States of that decision in order for them to ask for the proceedings in their respective states to be discontinued. Likewise, if a final decision is made in one of the other states, the ISL should, as soon as she becomes aware of the decision, lodge a request for proceedings to be discontinued in the Issuing State, pursuant to Article 54 CISA and Article 50 CFR (see section E.1 Mandatory Refusal Grounds).

ii. Checking the validity of the national arrest warrant underlying the EAW and any possibility of the EAW being revoked or withdrawn in the Issuing State

As outlined above, an EAW presupposes the existence of a valid national arrest warrant in the Issuing State, which must be issued in compliance with applicable national laws. In the absence of a national arrest warrant issued separately from the EAW, the EAW is invalid and must be refused: Case C-241/15 Bob-Dogi (1^st June 2016) at [59-67].

An underlying arrest warrant must not only exist: it must be issued by a “judicial authority” within the meaning of Articles 6(1) and 8(1) of the Framework Decision. As ISL you should assist the ESL in determining whether your national authorities that issued the EAW are “judicial authorities” in light of the objective criteria identified in the CJEU’s case-law (see C-453/16 PPU Özçelik (10^th November 2016);  C-452/16 PPU Poltorak (10^th November 2016); C-477/16 PPU Kovalkovas (10^th November 2016) and above section B.2).

That national warrant should be valid for both the execution of a sentence, or for remanding the person in custody pending trial. If it would not be possible to remand a person in custody pending trial in the proceedings in the Issuing State, then an EAW should never have been issued, since its execution involves a lengthy period of detention. The Issuing State should rather have made use of other legal instruments to achieve its purposes (for example, the European Supervision Order, pursuant to Council Framework Decision 2009/82/JHA on the application, between Member States of the European Union, of the principle of mutual recognition to decisions on supervision measures as an alternative to provisional detention (23^rd October 2009), or mutual legal assistance for service of documents or for conducting interviews).

Acting as an ISL you should be able, in most cases, to analyse the case files in the Issuing State in order to advise the ESL whether the EAW has been issued lawfully and, if not, to request its withdrawal by the Issuing State. As an ISL you should make the necessary applications pursuant to national law in order to seek withdrawal of the EAW.

There are many others services in the Issuing State that you can provide as the ISL to determine whether the EAW is lawful or disproportionate:

• You should check whether a prison sentence could be avoided by the simple payment of a fine, since often EAWs are issued where prison sentences are imposed for breach of an order to make a financial payment. In these cases you should immediately inform the ESL and your early intervention will allow an early payment of the fine, negating surrender and unnecessary detention.
• You should review whether it would be sufficient for an alternative measure to pre-trial detention to be imposed, and if so, request the substitution of the EAW for this alternative measure. In this area you should take into account that the European Supervision Order enables your national authorities to impose alternative measures to detention abroad.
• You should consider whether the Issuing State authority seeks a preparatory act, such as to interview the suspect or accused person, or to serve him/her with certain documents. If so, you should apply for that authority to substitute the EAW for mutual legal assistance or a European Investigation Order) or for a hearing of the person with the participation of Issuing State authorities to be conducted during EAW proceedings in the Executing State (Articles 18 and 19 EAW FD).
• Finally, you should check whether proceedings might be statute limited in the Issuing State, or whether there has been an amnesty, or any other grounds that would bar prosecution and consequently oblige the Issuing State authority to revoke the underlying national arrest warrant and the EAW. If you conclude that this is the case, you should lodge the corresponding application in the Issuing State.

 

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[14] Directive 2012/13/EU of the European Parliament and of the Council of 22 May 2012 on the right to information in criminal proceedings. Article 7(1) provides: “Where a person is arrested and detained at any stage of the criminal proceedings, Member States shall ensure that documents related to the specific case in the possession of the competent authorities which are essential to challenging effectively, in accordance with national law, the lawfulness of the arrest or detention, are made available to arrested persons or to their lawyers.”

[15] Amending Framework Decisions 2002/584/JHA, 2005/214/JHA, 2006/783/JHA, 2008/909/JHA and 2008/947/JHA, thereby enhancing the procedural rights of persons and fostering the application of the principle of mutual recognition to decisions rendered in the absence of the person concerned at the trial. In the future, Articles 8 and 9 of Directive 2016/343/EU will also become relevant – Directive (EU) 2016/343 of the European Parliament and of the Council of 9 March 2016 on the strengthening of certain aspects of the presumption of innocence and of the right to be present at the trial in criminal proceedings.

i. After a decision to surrender

After a decision on the execution of the EAW, one of the tasks in the case of a surrender decision is to ensure that specialty is not violated. You can also advise your client whether he should make a subsequent waiver of specialty (see above section D.3.i and section D.3.iii).

Another important task is to make sure that the detention period suffered in the Executing State is deducted from any sentence imposed following conviction, or the service of a sentence pursuant to a conviction EAW, in the Issuing State (Article 26 EAW FD). House arrest may be deductible pursuant to that provision, but the CJEU has decided that “[…] measures such as a nine-hour night-time curfew, in conjunction with the monitoring of the person concerned by means of an electronic tag, an obligation to report to a police station at fixed times on a daily basis or several times a week, and a ban on applying for foreign travel documents, are not, in principle, having regard to the type, duration, effects and manner of implementation of all those measures, so restrictive as to give rise to a deprivation of liberty comparable to that arising from imprisonment and thus to be classified as ‘detention’ within the meaning of that provision, which it is nevertheless for the referring court to ascertain”: Case C-294/16 PPU JZ v Prokuratura Rejonowa Łódź — Śródmieście, (28^th July 2016).

ESL and ISL should communicate as to what measures are imposed during the surrender procedure and whether these will be taken into account in the Issuing State, both to ensure that the Executing Judicial Authority is appraised of any risk of excessive detention upon surrender and to ensure that any required deduction is duly made after surrender. In the CJEU’s approach, an objective assessment is required, so a rigid application of national law preventing the real nature of the measures imposed from being considered would be insufficient.

After the person has been surrendered, you should also ensure that INTERPOL or SIS II alerts have been deleted and, if not, make an application in the Issuing State or the CCF for this to take place (see below section I).

If your client has been surrendered and convicted to a prison sentence, where the client wishes it, you should request that he or she serves their sentence in the Executing State. If there was a guarantee in place, you should help your client avail themselves of the corresponding guarantee given by the Issuing State during the EAW proceedings (see above section F).

If you have discovered that there are multiple prosecutions in different Member States against your client for the same facts, and the conflict of jurisdiction has not been resolved during the EAW proceedings you should consider, together with the ESL and where applicable a lawyer in a third EU Member State, which is the most appropriate jurisdiction for your client to be prosecuted in (see below section J). As soon as there is a final decision in the Issuing State, it is the duty of the ISL to inform the lawyers of the other relevant Member States of that decision in order for them to ask for the proceedings in their respective states to be discontinued. Likewise, if a final decision is made in one of the other states, the ISL should, as soon as she becomes aware of the decision, lodge a request for proceedings to be discontinued in the Issuing State, pursuant to Article 54 CISA and Article 50 CFR (see section E.1).

ii. After a decision not to surrender

Your intervention as an ISL may be necessary for requesting the removal or flagging of a Schengen or Interpol Alert, or for finding out whether such alerts are in place (see section I).

If the Executing State has refused surrender, there is no obligation upon the Issuing State to withdraw the EAW and SIS II alert as a consequence and the person may be re-arrested in any other Member State. In your capacity as ISL you should check whether the underlying national warrant and/or the EAW could be revoked on national legal grounds, or whether they could be replaced by less coercive measures (see above section H.2 at ii).

If surrender is refused pursuant to Article 3(2) EAW FD you as ISL should lodge an application for the EAW to be withdrawn in the Issuing State and for criminal proceedings in that State to be closed, according to Articles 54 CISA and 50 CFR. These create a bar to prosecution that is directly applicable in national criminal proceedings, irrespective of whether your national law has explicit provision on the matter. This application should include evidence of the existence of a final decision in the other Member State. A lawyer in the deciding Member State can provide you with a copy of the decision and case materials, as well as with an expert opinion of the “final” character of the decision, if necessary.

If you have found out that there are multiple prosecutions in different Member States against your client for the same facts, and the conflict of jurisdiction has not been resolved during the EAW proceedings, the same process applies as in the case of a decision to surrender (see the preceding section and below section J). As soon as there is a final decision in the Issuing State, or if a final decision is made in one of the other states, the same process applies as in the case of a decision to surrender (see the preceding section and above section E.1).

iii. After the Issuing State withdraws or revokes an EAW

After the Issuing State has withdrawn or revoked an EAW, you should also ensure that INTERPOL or SIS II alerts have been deleted and, if not, make an application in the Issuing State or to the CCF in order to obtain their deletion (see below section I).

If you have discovered that detention of your client on the basis of the EAW was illegal or arbitrary and disproportionate (Article 6 CFR and 5 ECHR), you should consider whether it is appropriate and/or possible to claim for compensation (see Article 5(5) ECHR).

If you have discovered that there are multiple prosecutions in different Member States against your client for the same facts, and the conflict of jurisdiction has not been resolved during the EAW proceedings, the same process applies as in the case of a decision to surrender (see section H.3.i above and below section J). As soon as there is a final decision in the Issuing State, or if a final decision is made in one of the other states, the same process applies as in the case of a decision to surrender (see above section H.3.i and above section E.1).