The fact that a person is wanted under an EAW will be notified to other countries’ police and border authorities via an electronic alert. There are two systems used for this purpose: the 2nd Generation Schengen Information System (“SIS II”) and the databases of the International Criminal Police Organization (“INTERPOL”).
In each case, there are actions you should take in relation to the alert, either prior to the arrest, or after the conclusion of the EAW proceedings.
SIS II, governed (in relation to the EAW) by Council Decision 2007/533/JHA on the establishment, operation and use of the second generation Schengen Information System (12th June 2007) (the “SIS II Decision”), is a centralised database in which EU Member States’ authorities enter data concerning persons wanted under an EAW (Article 26 SIS II Decision).[16] Each Member State has authorities responsible for a national database (“N.SIS II”) and for sending any additional information via the system (the “SIRENE Bureau”).[17] Border and police authorities are able to search the system directly. [18]
Alerts concerning a person wanted for surrender under an EAW are entered into SIS II together with data covering all the key fields of the EAW. This combination is treated as being the EAW itself (Article 31 SIS II Decision) and suffices for an arrest (and what we have referred to in section D as the Schengen Entry).
The SIS II Decision contains provisions on “flagging,” which enables an Executing State to require the Issuing State to add a flag to the alert prohibiting any arrest in the Executing State (Articles 24 and 25).
A person in any Member State can apply to find out whether there is currently a SIS II alert concerning them (Article 58 SIS II Decision). The provision of information is subject to any national rules that apply and the Issuing State’s opinion. Information will not be provided if it is “indispensable for the performance of a lawful task in connection with an alert or for the protection of the rights and freedoms of third parties” (Article 58(4) SIS II Decision).
You will need to identify the competent authority and the procedure in your Member State.[19] Practice varies, and though some authorities will disclose the existence of an alert, others will not. The process may also take many months and the answers provided may be inconclusive.
You may also try to find out whether there are EAW and SIS II alerts issued by your or third Member States by checking for pending proceedings directly at the court, prosecution or police authorities or a given pending proceedings register, if that is permitted in the respective Member State. A lawyer in the Issuing State can help you with this task.
If you are asked to represent someone who is aware of an EAW pending against them, and therefore that a SIS II alert is in place, it is possible for a flag to be added at the behest of a competent judicial authority where it is obvious that the EAW will have to be refused (Article 25 SIS II Decision). So, for instance, if you can demonstrate that one of the mandatory refusal grounds under Article 3 EAW FD applies, or that a fundamental right is at risk (see section E and section F) you could seek an order from a national court or authority (whichever is competent for these purposes in your Member State) ordering the SIS II / SIRENE Bureau to require that a flag be added to the alert by the Issuing State. This will prevent the person being arrested and EAW proceedings being started in your Member State. Of course, you will need to evaluate how strong such an application would be and the risk of inviting arrest upon the EAW by initiating such a challenge.
If the Executing State judge refuses to surrender your client pursuant to the EAW, you should apply to the court to include in the decision an instruction to the Issuing State to add a SIS II flag, and ensure that the SIRENE Bureau requests that the flag be added. This will prevent further arrests in your Member State.
If the EAW has been resisted by persuading the Issuing State to withdraw the underlying arrest warrant and EAW, the ISL should ensure that the issuing judicial authority also orders the withdrawal of the SIS II alert when it revokes the EAW. You should remind them to do this, since issuing authorities do not always do it automatically (see above section H.3.iii).
If the Executing State judge accepts your arguments and refuses to surrender the requested person, there is no obligation upon the Issuing State to remove the EAW and SIS II alert as a consequence. You must advise your client that they could face further arrests in other countries pursuant to the same EAW. In considering what, if any, action may be taken about the outstanding alert, you should ask an ISL whether there is any prospect of the EAW and underlying arrest warrant being challenged in light of your Member State’s refusal to surrender, particularly if it was established in the EAW proceedings that the ne bis in idem rule applies, or a fundamental right is at risk (see above section H.3. ii). If there was a refusal based on EU law grounds (for example, the Executing State considered that surrender should be refused on the basis of the ne bis in idem principle pursuant to Article 54 CISA and Article 3(2) EAW FD), the ISL should consider challenging the underlying warrant on this basis and, if necessary, seek a preliminary reference to the CJEU on the compatibility of the continuance of the EAW and SIS II Alert with EU law, and the Charter (see sections E.1 on ne bis in idem and E.3 on fundamental rights). However, we are not yet aware of a SIS II alert being challenged successfully after an EAW has been refused.
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[16] Be aware that in older resources these are commonly referred to as ‘Article 95 alerts’ (a reference to the Convention Implementing the Schengen Agreement, which established the original Schengen Information System, which SIS II has replaced).
[17] List of N.SIS II Office and the national SIRENE Bureaux (OJ 2014 C 278, p. 145).
[18] List of competent authorities that are authorised to search directly the data contained in [SIS II] (OJ 2014 C 278, p. 1).
[19] National authorities are set out in The Schengen Information System: A guide for exercising the right of access (this concerns the system before SIS II but the authorities and practices are likely to be the same for SIS II).
Member States also use INTERPOL ‘wanted person’ alerts to seek the person’s arrest with a view to EAW proceedings. These are electronic alerts entered into INTERPOL’s databases at the request of the National Central Bureau (“NCB”) of the issuing country.[20] These alerts will be either “Red Notices” or “diffusions” (a more informal alert which may be limited to the European area). Some Red Notices are visible on INTERPOL’s website but, for obvious reasons, many are not, and are visible only to border and police authorities. For INTERPOL alerts, there is one central body to which requests may be directed for access to data and to seek the deletion of an alert: the Commission for the Control of INTERPOL’s Files (“CCF”). The organisation Fair Trials has produced a guide on how to make requests for access to INTERPOL alerts and to seek their removal. The full set of rules governing INTERPOL alerts can be found on INTERPOL’s website.[21]
A request may be made at any time to the CCF to find out whether an alert has been posted, including before an arrest has happened. However, as with SIS II, the CCF may not provide a conclusive answer. A request may be made at any time to the CCF to find out whether an alert has been posted, including before an arrest has happened. Under new rules applicable since March 2017,[22] the CCF is required, in principle, to determine such a request within at most five months from receipt of an admissible request, with a further period for notification of the decision. However, as with SIS II, the CCF may not provide a conclusive answer. The rules place an onus on the Issuing State’s authority to justify why disclosure cannot be made, but maintaining an element of surprise in respect of an ongoing investigation is likely to be seen by the CCF as constituting a valid reason for withholding the information, at least in the situation where there has yet to be any arrest on the basis of the alert. If you can demonstrate knowledge that there is an alert, you may enhance your chances of obtaining a substantive answer as to its content: consult the rules for further detail upon this.
If the EAW and underlying arrest warrant are revoked, linked INTERPOL alerts should be removed and you should request that the CCF do this if the issuing NCB fails to do so. A fundamental criterion for the issue of an INTERPOL alert is the existence of a valid arrest warrant or equivalent, so the revocation of such entails deletion of the alert.
However, if the EAW is refused by the Executing State, this will not automatically lead to the removal of the alert. The onus in on you.
It is possible for a person to request to the CCF for the deletion of their INTERPOL alert on the basis that it violates INTERPOL’s rules – an application best made after the conclusion of the EAW proceedings when you are in possession of the refusal decision with its grounds.
The CCF is required, in principle, to determine such a request within a total of at most ten months from receipt of an admissible request (with a further period of up to three months for implementation and notification of the decision) though the Issuing State may request an extension. Applications are limited to ten pages (excluding evidence) and translations may be needed into the CCF’s four working languages. Such applications will require careful argument based on INTERPOL’s rules and published decisions that the CCF has begun releasing in 2017. There are many potential arguments and a detailed examination is beyond the scope of this handbook. However, some arguments which may be relevant so far as EAW cases are concerned are:
You will, in due course, receive a reasoned decision from the CCF in response to a deletion request. As of 2017, some of the decisions reached by the CCF are available for consultation and can be used for the purposes of framing requests. There is currently no appeal mechanism, though revision of a decision can be requested if new information comes to light (e.g. a further refusal, suspension of the warrant etc.).
When making an application to the CCF, your client’s expectations must be managed. Time frames (despite the in-principle time limits) may be lengthy. And, in general terms, the refusal of the EAW by a judge in your Member State alone will likely not lead to the deletion of the INTERPOL alert unless it establishes that surrender will have to be refused in any other state (a significant hurdle to overcome). The likelier outcome is that the CCF orders that the refusal to surrender the requested person by your Member State be reflected in the INTERPOL alert as an ‘addendum’: a textual note on the file which will bring further information to the attention of another country whose authorities encounter the wanted person. The addendum cannot as a matter of law dilute another Executing State’s obligation under Article 1(2) of the EAW FD to arrest upon an EAW, though it may (possibly) be taken into account in a non-EU country considering whether to arrest or not. In general terms, an addendum offers little protection.
Unless and until the INTERPOL alert is deleted outright, you should advise your client that they face a risk of arrest if they travel. If the CCF does order deletion of the alert, be aware that traces of the INTERPOL alert will remain on domestic police databases, giving rise to a residual risk of arrest. And the CCF’s decision will have no impact upon any SIS II alert; so even if the CCF orders deletion of the INTERPOL alert, arrest within the EU on the SIS II alert is still a risk unless that SIS II alert is itself deleted.
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[20] Each NCB can be located here http://www.interpol.int/Member-countries/World.
[21] http://www.interpol.int/About-INTERPOL/Legal-materials.
