April 9

The European arrest warrant

You need the assistance of a French Lawyer in criminal law? Please contact Avi Bitton, Lawyer in criminal law: Phone: ++ 33 (0)1 46 47 68 42 – Email: avocat@avibitton.com  

The European arrest warrant represents a real revolution in the practice of European judicial cooperation.

It originates from the framework decision of the Council of the European Union of June 13, 2002, and finds its foundations in:

- The principle of mutual recognition of criminal decisions between the Member States of the European Union;
- The wish to eliminate the difficulties linked to extraditions within the European Union.

This decision was transposed into French law by the constitutional decision of March 25, 2003: since then, the European arrest warrant is provided for in articles 695-11 and following of the French Code of Criminal Procedure.

The European arrest warrant is a judicial decision issued by a Member State of the European Union (the issuing Member State), with the aim of achieving the arrest and the surrender by another Member State (the executing Member State), of a person wanted in relation to a criminal prosecution or for the execution of a sentence or a safety measure leading to loss of liberty.

I. Matters which may give rise to the issuing of a European arrest warrant

The European arrest warrant may concern any person suspected or convicted, in a Member State, of being the author, co-perpetrator or accomplice of an offence or its attempt.

The matters which may give rise to the issuing of a European Arrest Warrant are:

- Matters punished by a prison sentence of at least one year, or where a sentence has been imposed, when the sentence imposed is of at least four months’ imprisonment;
- Matters punished by a safety measure resulting in loss of liberty for at least one year, or where a safety measure has been imposed, when the duration of the measure is of at least four months’ imprisonment.

II. The surrender procedure when France is the issuing Member State

A. The information contained in the European arrest warrant

All European arrest warrants must contain the following information:

- The identity and the nationality of the person being sought;
- The precise designation and the full details of the judicial authority from which it originates;
- The indication of the existence of any enforceable ruling, arrest warrant or any other judicial decision which carries the same weight in accordance with the legislation of the issuing Member State;
- The nature and the legal qualification of the offence;
- The date, place and circumstances in which the offence was committed and the degree of participation of the requested person;
- The sentence imposed or the penalties incurred for the offence under the law of the issuing Member State.

The European arrest warrant must be translated into the official language (or one of them) of the enforcing Member State or into one of the official languages of the European Institutions accepted by this State.

B. Request for surrender addressed to another Member State

Where the requested person is located in a known place within the territory of another Member State, the European Arrest Warrant can be directly sent to that Member State’s enforcing judicial authority, by any means giving rise to a written record. In all other cases, the European Arrest Warrant can be sent out through the Schengen Information System, or even Interpol.

In practice, the General Prosecutor attached to the investigating, trial or penalty enforcement Court who issued an arrest warrant implements this warrant in the form of a European arrest warrant, either at the request of the court or of his own motion.

The General Prosecutor is also competent to ensure, by means of a European arrest warrant, the implementation of prison sentences of four months or more, imposed by trial courts.

When the public prosecutor has been informed of the arrest of the wanted person, he immediately sends a copy of the arrest warrant that was delivered to the judicial authority of the executing Member State to the Minister of Justice.

III. The surrender procedure when France is the receiving Member State

A. The request for surrender addressed to the General Prosecutor with territorial jurisdiction

When it is established that the person sought is in France, the request for his surrender is addressed to the General Prosecutor with territorial jurisdiction: he is the one who receives and executes the request after having seized the Investigating Chamber.

B. The person’s appearance before the General Prosecutor

Following his arrest, the person sought must be brought within 48 hours before the General Prosecutor with territorial jurisdiction. During this period, he has the same rights as a person in police custody.

The General Prosecutor verifies the identity of the person and informs him of:

- The existence and content of the European arrest warrant;
- His possibility of being assisted by a lawyer;
- His faculty to consent to his surrender and the legal consequences resulting from this consent;
- His possibility to waive the “specialty rule” according to which the person surrendered to the issuing Member State after the execution of a European arrest warrant cannot be prosecuted, sentenced or detained for a matter that happened prior to the surrender and other than that which motivated the European arrest warrant.

The person sought is incarcerated, unless his representation in all procedural steps is sufficiently guaranteed. He can request his release at any time, in front of the Investigation Chamber, and can be placed under judicial supervision instead.

C. The person’s appearance before the Investigation Chamber

The person sought must then appear before the Investigation Chamber, within five working days of his presentation to the Prosecutor general.

This hearing is usually public.

After being informed of the legal consequences, the wanted person must declare:

- Whether he consents to its surrender; and
- Whether he waives the specialty rule.

The person’s consent is not required for the execution of the European arrest warrant, but it helps to expedite the process.

If the person consents to his surrender, the Investigation Chamber, after having noted that the legal conditions for the execution of the European arrest warrant are met, must rule within seven days of the appearance of the person, unless additional information is necessary.

The decision rendered is not subject to appeal.

If the person does not consent to his surrender, the Investigation Chamber must rule within twenty days of the appearance of the person, unless additional information is needed. This decision can be appealed by the Prosecutor general or by the wanted person.

The execution of the European arrest warrant may be conditional to the verification that the requested person can:

- Form opposition of the judgment rendered in his absence, in order to be tried again when he is present, if he had not been summoned or informed of the date and place of the hearing;
- Be returned to France, if he is a national or has been a resident for at least five years, to carry out the sentence, if any, pronounced by the judicial authority of the issuing Member State.

The Investigation Chamber can, within ten days of receiving the European arrest warrant, request the judicial authority of the issuing Member State to provide additional information, if it considers it necessary.

Where several Member States have issued a European arrest warrant for the same person, the Investigation Chamber decides which warrant to execute.

D. Surrender of the person sought

The Prosecutor general must take all necessary measures to ensure that the person sought is surrendered to the judicial authority of the issuing Member State within ten days of the final decision of the Investigation Chamber. If this deadline cannot be respected, the Prosecutor general informs the judicial authority of the issuing Member State and both must agree on a new delivery date. The person sought cannot be surrendered more than ten days after this date. If these deadlines are not respected and the person sought is in detention, he has to be released.

However, the surrender may be postponed if:

- There are serious humanitarian reasons for doing so, in particular if the surrender of the person is likely to have serious consequences for him because of his age or health ;
- The wanted person is being prosecuted in France or has already been sentenced and must serve a sentence there because of a matter other than the one covered by the European arrest warrant.

When the request for surrender has been the subject of an appeal, the time limit is increased to sixty days, and additional extensions are exceptionally possible.

When the surrender takes place, the Prosecutor general must mention the duration of the detention undergone by the person in France as a result of the execution of the European arrest warrant, the objective being that this duration will be taken into account in the issuing Member State.

IV. The means to oppose the surrender of a wanted person

A. Cases of compulsory refusal to execute a European arrest warrant

The execution of a European arrest warrant has to be refused if:

- The power to prosecute has been extinguished by amnesty;
- The requested person has been the subject of a final judgment for the same offences as those which are the subject of the European arrest warrant, provided that the penalty has been executed or is in the process of being executed or may not be implemented according to the laws of the State where the conviction was passed;
- The requested person was less than thirteen years old when the offence was committed;
- The limitation period for prosecution or for executing the sentence has expired;
- It is established that the European arrest warrant has been issued with the aim of prosecuting or convicting a person because of his sex, race, religion, ethnic origin, nationality, language, political opinions or sexual orientation, or that it could damage the situation of this person for one of the above reasons.

The execution of a European arrest warrant is also refused if the matter that is the subject of said arrest warrant does not constitute an offence under French law: it is the ‘double incrimination’ verification.

However, this verification is not carried out when the matter:

- Is punishable, according to the law of the issuing Member State, by a jail sentence or measure lasting three years or more; and
- Falls into one of the categories of offences listed in article 695-23 of the French Code of Criminal Procedure, such as participation in a criminal organisation, terrorism, sexual exploitation of children and child pornography, illicit drug trafficking, corruption, money laundering, cybercrime, intentional homicide and rape.

B. Cases of optional refusal to execute a European arrest warrant

The execution of a European arrest warrant can be refused:

- If the requested person has been the subject of proceedings by the French authorities or these authorities have decided not to initiate a prosecution or to put an end to one, in relation to the offences for which the arrest warrant has been issued;
- If the person wanted in relation to the execution of a custodial sentence or safety measure is a French national or has lived in France for at least five years and the competent French authorities undertake to put it into execution;
- If the matter was committed wholly or partly on French national territory;
- If the offence was committed outside the territory of the issuing Member State and French law does not permit the prosecution of the offence where it is committed outside French national territory.

This list of optional grounds for refusing the execution of a European arrest warrant is exhaustive.

Any refusal to execute a European arrest warrant must be explained.

V. The effects of the European arrest warrant

The person surrendered to the issuing Member state cannot not be prosecuted, convicted or detained in order to execute a custodial sentence for an offence committed before the surrender other than the one which led to this measure, except in the following cases:

- The person has expressly waived the right to benefit from the speciality rule, at the moment of his surrender or after;
- The judicial authorities of the executing Member State which surrendered the person have expressly agreed to this;
- Having had the chance to do this, the requested person has not left French national territory within forty-five days of his final release, or if he has voluntarily returned after having left;
- The offence is not punished by a custodial sentence.

VI. The transit through France of a person wanted by virtue of a European arrest warrant

The transit through French territory of a person wanted under a European arrest warrant is authorised by the Minister of Justice.

If the person is of French nationality, the authorisation may be subject to the condition that he will be returned to France to undergo the custodial sentence which may be pronounced against him by the judicial authority of the issuing Member State. When the person sought is of French nationality and the European arrest warrant has been issued for the execution of a custodial sentence or security measure, transit is refused.

You need the assistance of a French Lawyer in criminal law? Please contact Avi Bitton, Lawyer in criminal law: Phone: ++ 33 (0)1 46 47 68 42 – Email: avocat@avibitton.com