WRITTEN QUESTION E-2408/02

by Charles Tannock (PPE-DE) to the Council

(7 August 2002)

Subject: Conditions attached to the application of the European Arrest Warrant

Under the proposals for the European Arrest Warrant currently before the Council, will the requesting state be required to restrict prosecution of an extradited person to those offences that are specified in the warrant? Would it be a violation of the arrest warrant for the requesting Member State to initiate a prosecution for an offence alleged to have been committed before the application for extradition was made and which was not specified on the warrant without first offering the extradited person the opportunity to leave the jurisdiction of the requesting state?

Reply

(16-19 December 2002)

The answer to the question whether the issuing State is required to restrict prosecution of a person surrendered under the Framework Decision on the European arrest warrant to those offences that are specified in the arrest warrant can be found in Article 27 of the said Framework Decision, which is concerned with possible prosecution for other offences.

The main rule laid down in Article 27 corresponds to the well-known principle of specialty in extradition law, under which an extradited person may not be prosecuted by the requesting state for any other offence committed prior to extradition/surrender than those for which extradition was granted (see Article 27(2)). As has traditionally been done in most extradition treaties, the Framework Decision on the European arrest warrant defines the practical conditions under which this principle is to be applied. This is done by describing the circumstances within which the specialty principle does not apply.

Article 27(3) of the Framework Decision states that this principle does not apply in the following cases:

(a) when the person having had an opportunity to leave the territory of the Member State to which he or she has been surrendered has not done so within 45 days of his or her final discharge, or has returned to that territory after leaving it;

(b) the offence is not punishable by a custodial sentence or detention order;

(c) the criminal proceedings do not give rise to the application of a measure restricting personal liberty;

(d) when the person could be liable to a penalty or a measure not involving the deprivation of liberty, in particular a financial penalty or a measure in lieu thereof, even if the penalty or measure may give rise to a restriction of his or her personal liberty;

(e) when the person consented to be surrendered, where appropriate at the same time as he or she renounced the speciality rule, in accordance with Article 13;

(f) when the person, after his/her surrender, has expressly renounced entitlement to the speciality rule with regard to specific offences preceding his/her surrender.

(g) where the executing judicial authority which surrendered the person gives its consent in accordance with paragraph 4.

In respect of the renunciation by the arrested person of entitlement to the specialty principle, Article 27(3)(f) specifies that renunciation must be given before the competent judicial authorities of the issuing Member State, that it shall be recorded in accordance with that State's domestic law and that it needs to be drawn up in such a way as to make clear that the person has given it voluntarily and in full awareness of the consequences. In that connection, it also stipulates that the person shall have the right to legal counsel. Furthermore, it is noteworthy that Article 13(4) of the Framework Decision on the European arrest warrant allows each Member State to make a statement to the effect that the person concerned may revoke such a renunciation. Five Member States have informed the General Secretariat of the Council of the European Union that they wish to have recourse to this possibility, namely Belgium, Denmark, Ireland, Finland and Sweden. It follows from Article 13(4) of the Framework Decision on the European arrest warrant that in all other Member States a renunciation to the specialty principle may not be revoked.

Otherwise, the issuing state may only prosecute the surrendered person for other offences than those stated in the European arrest warrant, by seeking and obtaining the consent of the executing State. The procedure for this is analogous to the one for a European arrest warrant. Article 27(4) of the Framework Decision stipulates that such a request for consent shall be submitted to the executing judicial authority, accompanied by the information mentioned in Article 8(1) and a translation as referred to in Article 8(2), that is in the same form as required for a European arrest warrant. Article 27(4) further provides that consent shall be given when the offence for which it is requested is itself subject to surrender in accordance with the provisions of the Framework Decision and that consent shall be refused on the mandatory grounds for refusal referred to in Article 3 and may be refused on the optional grounds for refusal referred to in Article 4.

The decision on the request for consent shall be taken no later than 30 days after receipt of the request. As is the case with a European arrest warrant, in the situations mentioned in Article 5 (i.e. execution of a sentence rendered in absentia, a life sentence or life-time detention order or when the person concerned is a national or resident of the executing State), the issuing Member State must give the guarantees provided for therein.

Article 27(1) of the Framework Decision provides for a legal mechanism under which Member States may notify the General Secretariat of the Council that, in its relations with other Member States that have given the same notification, consent is presumed to have been given for the prosecution, sentencing or detention with a view to the carrying out of a custodial sentence or detention order for an offence committed prior to his or her surrender, other than that for which he or she was surrendered, unless in a particular case the executing judicial authority states otherwise in its decision on surrender. No such notification has, however, been received by the General Secretariat.

It follows from the above that if a Member State were to prosecute a person surrendered under the Framework Decision on the European arrest warrant for an offence not specified in the warrant without providing the person with an opportunity to leave the territory of the Member State concerned within 45 days of his or her final discharge and none of the other exceptions described in Article 27(2) were to apply, that Member State would indeed be in breach of the Framework Decision on the European arrest warrant if he were to do so without first obtaining the consent of the executing Member State under the procedure provided for in Article 27(4).