COMMISSION STAFF WORKING DOCUMENT
Date: 2011-04-11
Institutions: European Commission
Subjects: extradition, international criminal law, judicial cooperation, judicial proceedings, legal process, mutual recognition principle

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EUROPEAN COMMISSION 

Brussels, 11.4.2011 
SEC(2011) 430 final 

COMMISSION STAFF WORKING DOCUMENT 

Accompanying document to  

the third Report from the Commission to the European Parliament and the Council on the 
implementation since 2007 of the Council Framework Decision of 13 June 2002 on the 
European arrest warrant and the surrender procedures between Member States 

{COM(2011) 175 final} 

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PART I 

Overview of legislative changes in the Member States since 1 April 2007 

PART II 

Overview  of  the  current  position  in  relation  to  the  recommendations  of  the 
Council of the EU in the final report of the fourth round of mutual evaluations 
of  Member  States  concerning  the  application  of  the  Framework  Decision  on 
the European arrest warrant 

PART III 

Note on Instruments amending/complementing the Framework Decision on the 
European arrest warrant 

PART IV 

Note on the European arrest warrant and the Schengen Information System 

PART V 

Note on the European arrest warrant and Eurojust 

PART VI 

Decisions of the European Court of Justice on the Framework Decision on the 
European  arrest  warrant  and  on  interpretation  of  ne  bis  in  idem  in  relation  to 
Article 54 of the Convention Implementing the Schengen Agreement 

PART VII  Reference numbers of the individual Council evaluation reports of the Member 
States concerning the application of the Framework Decision on the European 
arrest warrant 

PART VIII 

Individual  tables  in  relation  to  each  Member  State  setting  out  the  current 
position  in  respect  of  implementation  of  the  Framework  Decision  on  the 
European arrest warrant 

PART IX 

Statistical charts in relation to the European arrest warrant 

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PART I - OVERVIEW OF LEGISLATIVE CHANGES IN THE MEMBER STATES 
SINCE 1 APRIL 2007 

The responses received by the Commission to its requests for information of the 30 June 2009 
and 25 June 2010 indicate the following: 

•  New legislation was adopted in AT, BG, CZ1, EE, FR, HU, IE, LV, LT, PL PT, RO, SK 
and SI and legislation is proposed and drafted but is not yet adopted (apart from a minor 
amendment to one article of its transposing legislation2) in LU. 

•  No legal change had taken place or was announced in BE, CY3 DK, DE, EL, ES, FI, IT, 

MT, NL, SE and the UK. 

A  brief  descriptive  analysis  of  the  amendments  is  provided  herein  for  the  Member  States 
where new legislation was adopted. The position in respect of all Member States is set out in 
the Tables, in Part VIII. 

AUSTRIA (Part VIII, Table 1) 

AT changed its legislation with effect from the 1st of January 2008. The legislation comprises 
rules governing all forms of cooperation between judicial authorities of Austria and those of 
the other Member States. The concept of mutual recognition is explicitly mentioned and the 
law provides for cooperation through Eurojust and EJN. 

Relating to EAWs against Austrian nationals on the basis of a conviction, the dual criminality 
requirement related to list offences came to an end on the 1st of January 2009. However, the 
execution of an EAW against an Austrian national is prohibited when the acts are subject to 
the jurisdiction of Austrian criminal law. Furthermore, all optional grounds are implemented 
as  mandatory  grounds  for  refusal  for  Austrian  nationals.  Surrender  for  prosecution  is 
prohibited without the guarantee of Art 5(3). The right not to be surrendered may be waived. 

Where  there  is  dual  criminality  AT  will  –  when  refusing  to  execute  an  EAW  against  an 
Austrian national - take over prosecution in a proceeding that starts on the basis of the EAW. 
If the act underlying the EAW is a list offence the sentence will be enforced, even if the act is 
not punishable according to AT law. 

It is noted that in keeping with the old extradition regime, AT continues to require verification 
of the suspicion (if there are considerable doubts in this context, in particular  if evidence is 
available or can be offered, which would dispel the suspicion immediately). 

BULGARIA (Part VIII, Table 3) 

The  implementing  legislation  was  most  recently  amended  on  6  June  2008.  Part  of  the 
amendment relates to consequences for the EAW procedures in preparation for the Schengen 
regime. 

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Further legislative amendments are currently being prepared in CZ 
Part 9 of the Law of 27.10.2010 "Lutte contre le blanchiment et le financement du terrorisme" 
The  last  information  received  from  CY  in  August  2009  was  that  new  legislation  was  proposed.  No 
update on the progress, if any, of proposed legislation has been received 

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The amendment limits the application of optional grounds for refusal of article 4(2) and (3) 
FD  to  those  cases  in  which  the  person  was  accused  or  summoned  or  where  the  case  was 
closed before reception of the EAW. 

The application of the ground for refusal of article 4(6) is now limited to those cases in which 
the judge grants (in the same court procedure) the execution of the foreign penalty. The time 
limit for receipt of a (translated) EAW is extended to 72 hours. 

CZECH REPUBLIC (Part VIII, Table 5) 

The law has been amended on three occasions (on 7 June 2007, on 10 December 2008 and on 
8  January  2009),  mainly  to  adapt  CZ  law  to  "Schengen",  which  CZ  entered  on  the  21 
December  2007.  An  Act  on  International  Judicial  Co-operation  is  currently  being  prepared 
with a view to the parliamentary procedure beginning in early 2011. 

It is envisaged that the recommendations addressed to the Czech Republic in the evaluation 
report will be addressed in this upcoming legislation including the fact that (as highlighted in 
the  Commission  implementation  report)  contrary  to  the  Framework  Decision,  requests  for 
offences  committed  by  Czech  nationals  prior  to  1  November  2004  are  treated  by  CZ  under 
previous extradition arrangements. The provision of a simplified and speedier procedure for 
surrender in consent cases is also envisaged. 

Other  measures  that  need  to  be  addressed  are  the  removal  of  the  current  application  of  the 
principle of reciprocity to the surrender of Czech nationals and the removal of the grounds of 
refusal identified in the evaluation report as not having a basis in the Framework Decision. 

ESTONIA (Part VIII, Table 7) 

On 23 May 2008 new legislation was enacted expressly asserting that surrender in respect of 
FD list offences is to occur without verification of the double criminality of the act. 

The  amending  legislation  designates  the  competent  issuing  judicial  authority  in  EAW  cases 
arising in respect of persons who abscond during the course of criminal proceedings. It also 
makes  provision  for  humanitarian  grounds  as  a  permissible  basis  for  the  postponement  of 
surrender in appropriate cases. 

The  Commission's  2007  report  mentioned  that  although  not  provided  for  in  national 
legislation, as a consequence of the EE system (in which all arguments can brought before the 
Judge) a Judicial Authority may refuse surrender purely on merit grounds rather than pursuant 
to  any  of  the  grounds  stated  in  Article  3  and  Article  4  of  the  Framework  Decision.  No 
refusals, however, are reported on other grounds than grounds included in the FD. 

FRANCE (Part VIII, Table 9) 

The law of 12 May 2009 introduced several improvements. 

In respect of temporary surrender, the French Ministry of Justice has indicated to the national 
courts that the decision of temporary surrender has to be decided by the judicial authorities of 
both states concerned. The French Ministry must not intervene. 

Also, due to legislative changes, in case of refusal of the execution of a foreign sentence in 
accordance with paragraph 4(6) of the Framework Decision, the "chambre d'accusation" can 

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now  immediately  proceed  to  take  over  the  execution  of  the  foreign  custodial  sentence  or 
detention order ("mise à execution directe"). A further amendment allows the applicability of 
the measure of conditional release when executing a foreign sentence in these cases. 

The Code of Criminal Procedure has also been amended regarding the execution of the EAW: 
the General Prosecutor may now also apply alternative measures to detention. In addition, the 
speciality rules are now in conformity with paragraph 27(3) (g) of the FD. It seems however 
that  the  transposition  of  the  exception  to  the  speciality  rule  in  Article  27(3)  (c)  remains 
outstanding. 

Concerning the issue of accessory surrender, the legislation envisages inclusion of accessory 
offenses  (that  do  not  meet  the  thresholds)  when  issuing  an  EAW  for  offenses  that  meet  the 
criteria. Relating to the seizure and handover of property, a provision has been added to allow 
seizure and handover on own initiative of the executing authority. 

HUNGARY (Part VIII, Table 12) 

Amendments to the law came into force on 8 January 2009. 

HU reiterates that all EAWs are issued by a judge and are also considered as national arrest 
warrants. For EAWs replacing pre-existing international arrest warrants the date of issue will 
be  clearly  indicated.  HU  also  guarantees  that  surrender  can  only  be  refused  on  grounds 
expressly provided in the implementing law. 

Amendments  relating  to  refusal  on  the  grounds  of  prescription  and  deduction  of  detention 
served abroad pursuant to the execution of the EAW from the total custodial sentence brings 
the HU law now in line with respectively articles 4(4) and 26 of the FD. 

However,  HU  did  not  amend  its  legislation  protecting  HU  nationals  residing  in  HU  from 
being  surrendered  for  in  absentia  sentences,  even  when  re-trial  is  guaranteed,  nor  did  it 
introduce  a  possibility  for  executing  sentences  for  offences  not  punishable  under  HU  law, 
passed against Hungarian nationals that are not surrendered. 

IRELAND (Part VIII, Table 13) 

New legislation which took effect on 25 August 2009 anticipates requirements relating to SIS 
II and has reduced the need for correction/re-issue of warrants in case of technical and minor 
errors  in  EAWs  to  those  absolutely  necessary.  It  also  reduced  the  time  spent  on  checking 
incoming warrants and provides that fingerprints, palm prints and photographs may be taken 
for identification purposes. 

The  provision  of  an  optional  ground  for  refusal  in  relation  to  lapse  of  time  has  now  been 
deleted.  The  possibilities  of  appeal  to  the  Supreme  Court  on  points  of  law  of  exceptional 
public importance are limited. Where surrender is subject to the condition that the person be 
returned to the executing state to serve any sentence imposed in the issuing state, and where 
the person consents to his return, the new legislation empowers the Minister to issue a warrant 
for  the  transfer  of  that  person  to  the  executing  state  following  final  determination  of  the 
proceedings. Ireland, therefore, no longer relies on the Transfer of Sentenced Persons regime. 

However, Irish legislation continues to require that an incoming warrant be endorsed by the 
High  Court  before  execution.  In  addition,  Ireland  as  an  issuing  state  has  not  explicitly 

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transposed Article 24(2) on temporary surrender and Articles 27(3) (g) and 27(4) on consent 
for prosecution for other offences. 

LATVIA (Part VIII, Table 15) 

Four amendments to the law were made in 2008, 2009 and 2010 (29 July 2008, 1 and 9 July 
2009  and  21  October  2010).  The  law  is  now  in  line  with  Articles  2(4)  and  4(6)  of  the 
Framework Decision as regards respectively the abolition of the dual criminality check for list 
offences and the undertaking that LV will execute the sentence passed in the issuing State. 

Legislative  gaps  have  been  filled  relating  to  Article  20(2)  and  29(2)  of  the  FD,  as  regards 
respectively  time  limits  in  case  of  privileges  and  immunities  and  the  handing  over  of 
properties  in  case  surrender  is  impossible  due  to  the  escape  or  the  death  of  the  requested 
person.  A  provision  for  temporary  surrender  according  to  Article  24(2)  FD  was  introduced. 
The amended legislation is furthermore brought in conformity with the Articles 27(3) b and c 
and 28(2) and (3) and the form contains a possibility to include aliases. Pursuant to the law of 
21 October 2010, the Prosecutor-General's Office will be the competent authority in respect of 
the issue of EAWs. 

Some  small  gaps  in  transposition  remain  in  respect  of  Article  17(7),  informing  Eurojust  of 
breach  of  time  limits  and  Article  29(4),  return  of  property  seized  to  the  executing  Member 
State at the conclusion of criminal proceedings. 

LITHUANIA (Part VIII, Table 16) 

Since  1  April  2007,  Lithuania  has  made  several  amendments  to  the  law  relating  to  the 
implementation of the EAW. In particular, Article 70(2) of the Criminal Code of the Republic 
of Lithuania has been amended by Law No X-1236 of 28 June 2008. 

The  amendments  relate  to  the  competence  of  regional  or  district  courts  to  decide  on  issues 
relating to detention in EAW cases and to the consent of the executing state to re-extradition 
or surrender of a person from LT to a third state, the latter bringing the implementing law into 
line  with  Article  28(4)  of  the  FD.  In  addition,  Lithuania  has  made  amendments  to  the  law 
relating  to  the  Rules  for  issuing  EAWs,  setting  out  criteria  to  apply  when  issuing  an  EAW 
taking into account the principle of proportionality. 

Outstanding issues include the transpostions of Articles 27(3) c and d and the reconsideration 
of  the  inclusion  of  a  breach  of  fundametnal  rights  and  (or)  liberty  as  an  express  mandatory 
ground of refusal. 

POLAND (Part VIII, Table 20) 

PL  has  modified  its  legislation  on  the  EAW  on  5  November  2009  and  the  legislation  took 
effect on 8 June 2010. 

The  new  legislation  makes  provision  for  the  competent  Court  to  issue  an  EAW  on  its  own 
initiative  in  trial  and  post-trial  cases  and  extended  the  possibility  to  issue  an  EAW  in  cases 
where the Court has jurisdiction over the case even though the offence was not committed in 
Poland. Provisions have been made for provisional arrest up to seven days before receipt of an 
EAW  (where  there  is  final  custodial  sentence  and  detention  order  in  place),  for  temporary 
surrender  based  on  agreement  between  issuing  and  executing  authorities  and  for  a  final 
decision on surrender within 60 days. 

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Poland has not however addressed the fact that its legislation contains a number of mandatory 
grounds  for  refusal  not  provided  for  in  the  Framework  Decision.  In  addition,  the  partial 
abolition of double criminality check in the FD continues not to apply to Polish nationals and 
refusal of the execution of the EAW on the basis of territoriality remains mandatory. 

PORTUGAL (Part VIII, Table 21) 

A  Penal  Code  amendment  of  September  2007  provided  that  PT  nationals  and  persons 
customarily  resident  in  PT  will  be  subject  to  PT  jurisdiction  for  certain  crimes  committed 
outside the national territory. 

However there have been no amendments to the EAW law to address the fact that Articles in 
relation to mandatory non-execution grounds and the decision in respect of competing EAWs 
have  been  transposed  contrary  to  the  Framework  Decision  and  that  a  number  of  transposed 
provisions  lack  legal  certainty  including  the  provisions  on  temporary  surrender,  speciality, 
optional  non-execution  grounds,  competing  international  obligatons,  time  limits  for  final 
surrender decision, and time limits for appeals. 

ROMANIA (Part VIII, Table 22) 

New  legislation  was  adopted  in  Romania  with  effect  from  10  November  2008  (Law  no. 
222/2008).  The  amending  legislation  (which  also  implemented  three  other  framework 
decisions) was introduced in respect of the EAW to adjust some procedural aspects and did 
not amend the substance of the original implementing law on the EAW. 

This amendment prepares RO for entering the Schengen area and brings the RO law almost 
fully  in  line  with  the  FD.  It  furthermore  takes  stock  of  good  practices  and  streamlines 
domestic procedures. 

The amendments to the law in 2008 addresses previous defects in the transposition of the list 
provided  for  in  Article  2(2)  of  the  Framework  Decision.  In  addition  the  2008  amendment 
provides that in case of refusal on the ground of Article 4(6) FD, the court will proceed (in the 
same court procedure) to the execution of the foreign penalty. 

SLOVAK REPUBLIC (Part VIII, Table 23) 

The Slovak Republic has adopted Act No 154/2010 on the EAW, due to enter into force on 
1 September  2010.  This  Act  repeals  the  original  transposing  legislation  on  the  EAW,  as 
amended. 

The  new  Act  includes  a  legislative  provision  to  ensure  proportionality  in  issuing  EAWs.  It 
addresses previous defects in the transposition of Article 2 of the FD; sets a time limit of 40 
days for the receipt of a language-complaint EAW; converts the previously-mandatory ground 
for  refusal  based  on  territoriality  into  an  optional  ground;  makes  provision  for  temporary 
surrender in accordance with Article 24(2) and provides for additional consent and consent to 
subsequent surrender pursuant to Article 28. 

legislation 

thus  adresses  almost  all  of 

The  new 
the  Council  and  Commisson 
recommendations.  Matters  outstanding  include  provision  of  a  deadline  for  decisions  in  the 
highest  court  of  appeal  (Supreme  Court)  and  provision  for  transit  from  a  third  state  in 
accordance with Article 25(5). 

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SLOVENIA (Part VIII, Table 24) 

In February 2008 a new single act came into force, comprising all instruments of cooperation 
in the field of criminal law within the EU. 

The  new  legislation  addresses  previous  transposition  defects  by  implementing  the  penalty 
threshold  and  entire  list  of  criminal  offences  referred  to  in  Article  2(2)  of  the  Framework 
Decision;  providing  for  the  enforceability  of  sentences  passed  in  the  issuing  Member  State 
against  nationals  and  residents  of  SI  for  offences  not  punishable  under  SI  law;  making 
additional provisions on the seizure and handing over of property in accordance with Article 
29; and making provision for transit from third states to another Member State. 

In addition Article 26 on deducting the period of detention served in the executing Member 
State  is  now  transposed  and  Slovenia  has  removed  any  limitation  on  the  operation  of  the 
EAW (previously only for offences committed after 7 August 2002) regarding the date of the 
commission of the alleged offence. 

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PART II - COUNCIL RECOMMENDATIONS 

General  information  in  relation  to  the  practical  application  of  the  EAW  is  set  out  in  the 
"General Information" Table in respect of each Member State in Part VIII, drawing largely on 
the  issues  raised  in  the  Council  Recommendations4  and  including  some  other  EAW  issues. 
Given the variation in content and quality of replies from Member States, the information is 
not fully comprehensive but it is hoped that the collation and presentation in table format of 
this material will be a useful tool for practitioners and of assistance to Member States in the 
follow up to the recommendations to be submitted to the Council by mid 2011.5 An overview 
of  some  of  the  detail  in  the  individual  Member  State  tables  in  the  context  of  the  Council 
recommendation follows. 

The  Council  has  recommended  that  Member  States  adopt  a  flexible  approach  to  language 
requirements.6 The Commission endorses this recommendation in the light of Article 8(2) of 
the  Framework  Decision.  Where  EAWs  and  additional  information  in  languages  other  than 
the Member State's own official languages are accepted the procedure is speeded up and the 
need for translation and attendant costs are reduced. Replies from Member States on this issue 
show that there is some limited element of language flexibility in most Member States with 
the norm being that EAWs are accepted in the language of the executing state and either one 
or  two  other  languages.  Language  flexibility  is  based  on  reciprocity  in  a  number  of  States 
(AT, CZ, DE, SK). It is regrettable that in six Member States (BG, FR, IE, IT, PL, UK) there 
is no flexibility in relation to the language accepted. 

The fourteen responses on time limits for receipt of a language-compliant EAW indicate that 
where time limits exist, they range from 48 hours to 40 days. The Council has recommended a 
time limit of around 6 working days7 and the Commission finds this acceptable. 

In  respect  of  provisional  arrest,  the  Commission  agrees  with  the  recommendation  of  the 
Council  that  Member  States  should  take  legislative  action  at  national  level  insofar  as  this 
creates  particular  difficulties  in  practice8.  It  appears  that  provisional  arrest  is  possible  in  all 
Member States except CY and IE and the time limits for receipt of the EAW range from 24 
hours to 40 days (SK). However apart from NL (22 days) and Poland (7 days) the time limits 
in all other Member States are 24, 48 or 72 hours. 

In  respect  of  the  issue  of  surrender  for  accessory  offences,  the  Council  has  indicated  that 
action, if needed, should be taken at national level9. The Commission is also in favour of this 
approach. The twenty four replies indicate that such surrender is possible in 11 Member States 
and not possible in 8. It is possible in 4 Member States (HU, IE, LT, RO) only as executing 
states and in one Member State (NL) as an issuing state only. 

In  respect  of  flagging  in  the  Schengen  Information  System,  the  Commission  endorses  the 
Council recommendation that Member States apply the practice of flagging EAW-based SIS 

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8302/4/09 COPEN 68, 7361/10 COPEN 59, 8436/2/10 COPEN 95 
8302/4/09 GOPEN 68 p.23 - Recommendation 20 
8302/4/09 COPEN 68 p.11, 7361/10 COPEN 59, p.3, 8436/2/10 COPEN p.3 
8302/4/09 COPEN 68 p.12, 7361/10 COPEN 59, p.4, 8436/2/10 COPEN p.3 
8302/4/09 COPEN 68 p.19, 7361/10 COPEN 59, p.11, 8436/2/10 COPEN p.6 
8302/4/09 COPEN 68 p.16, 7361/10 COPEN 59, p.7, 8436/2/10 COPEN p.5 

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alerts according to the criteria in Council Decision 2007/533/JHA10 on the second generation 
Schengen Information System (effectively that the flagging decision is taken by a competent 
judicial authority). The content of the sixteen replies on this issue from Schengen participants 
indicate that in 9 Member States the decision on flagging is solely within the competence of 
the  judicial  authority,  in  4  member  states  the  decision  is  within  the  province  of  the  Sirene 
Bureaux/International  Police  Co-operation  Units  and  in  3  Member  States  the  Judicial 
Authority is consulted by the Sirene Office where deemed necessary. 

A  questionnaire  on  the  application  of  Article  29  on  the  seizure  and  handover  of  property  is 
envisaged by the Council. The twenty five brief replies on this issue indicate that all Member 
States  that  replied  have  some  provision  on  seizure  and  handover  of  property.    However, 
Article 29 is stated to be only partly transposed in 4 Member States (FI, LV, SI, SW), limited 
to property found in the possession of the requested person upon arrest in one Member State 
(NL) and reliant on mutual legal assistance provisions in three Member States (LU, SK, UK). 

judicial  authorities  and 

The  Council  has  recommended  that  Member  States  take  measures  to  promote  direct 
communication  between 
this 
recommendation  with  a  view  to  promoting  the  development  of  a  European  judicial  culture 
based  on  dialogue  between  judicial  authorities.  Of  the  26  Member  States  that  provided  a 
reply, all but three (CY, IE and UK) indicated that the principle of direct contact is operated.  
However a number of Member States alluded to the importance of their Central Authorities 
and  it  appears  from  the  evaluations  that  in  practice  much  work  remains  to  be  done  on 
promoting direct communication between judicial authorities. 

the  Commission  endorses 

The  majority  of  Member  States  (14)  cite  the  1983  Council  of  Europe  Convention  of  the 
Transfer  of  Sentenced  Persons  and  its  protocol11as  their  mechanism  for  the  transfer  of  a 
sentenced  person  pursuant  to  Article  5(3)  FD.  Two  Member  States  (IE,  UK)  referred  to 
having specific domestic provisions based on the Framework Decision on the European arrest 
warrant.  Only  one  Member  State  (FI)  referred  to  pending  legislation  implementing  FD 
2008/909/JHA12  on  the  application  of  the  principle  of  mutual  recognition  to  judgments  in 
criminal matters imposing custodial sentences or measures involving deprivation of liberty for 
the purpose of their enforcement in the European Union, which makes specific provision for 
the enforcement of sentences in cases under Articles 4(6) and 5(3) of the FD on the EAW, and 
has an implementation date of 5 December 2011. 

Where  surrender  for  the  execution  of  a  sentence  is  refused  pursuant  to  Article  4(6)  on  the 
grounds  that  the  sought  person  has  nationality  or  is  a  resident  of  the  executing  State,  4 
Member States (AT, LU, SI, SE) indicated that there is the possibility of executing a sentence 
where there is no dual criminality and in 6 Member States (HU, LV, NL, PL, PT, RO) this is 
not possible. BE indicated that surrender would be authorised in such a case as it would not be 
a  ground  for  refusal.  The  remaining  Member  States  that  furnished  replies  on  this  issue  (16 
replies in all) either have not transposed Article 4(6) as a ground of refusal (IE, SK) or had no 
experience of such a scenario (CZ, EE, ES). 

21 Member States have accepted the jurisdiction of the European Court of Justice in respect 
of police and judicial cooperation in criminal matters pursuant to Article 35 of the Treaty on 

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OJ L 205, 7.8.2007, p.63 
European Treaty Series no. 112 
OJ L 327, 5.12.2008, p.27 

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European  Union.  The  Member  States  that  have  not  made  a  declaration  accepting  the 
jurisdiction of the European Court of Justice are BG, DK, EE, IE, PL and UK. 

In  addition  to  the  above  issues,  the  General  Information  Table  also  sets  out  information  in 
respect  of  each  Member  State  (subject  to  replies  received)  on  a  number  of  other  matters 
including the existence of a proportionality test (see comments on proportionality below); the 
availability  of  state-funded  legal  assistance  in  EAW  cases;  the  respective  competent 
authorities for requests pursuant to Article 111 of the Schengen Convention; the integration of 
recital  12  FD  in  the  respective  implementation  laws;  the  abolition  of  dual  criminality  in 
respect of the offences listed in Article 2(2) FD for attempt and complicity13; the existence of 
a 24 hour/seven day presence for EAW issues; the respective ages of criminal liability;14 and 
provision of statistics and a website by Member States. 

Arising  from  the  Council  Recommendations,  the  ES  Presidency  drafted  a  form  for 
communicating  the  final  decision  on  the  EAW  to  the  issuing  authority15.  The  idea  of  using 
such  a  form  is  endorsed  by  the  Commission.  It  will  facilitate  the  flow  of  information, 
promoting cooperation between judicial authorities and ensuring compliance with Article 26 
FD on the deduction of the period of detention served in the executing Member State. 

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15 

Dual criminality for attempt and complicity appears to be abolished expressly or in practice in all but 
three Member States (BG, DK, PL) 
While some Member States have specific regimes for age brackets over or under the designated age of 
criminal liability, in general from the 24 replies the age of criminal liability ranges from 9 to 18, with 
the majority - ten Member states (AT, CY, DK, EE, DE, HU, LV, RO, SK, SI) – having a designated 
age of 14. In three Member States it is 15 (CZ, FI, SW) and 16 (BE, LT, PT). In two Member States 12 
(IE, NL) and 18 (LU, ES). The ages 9 (MT), 10(UK), 13(FR) and 17(PL) are the designated age in one 
Member State. 
7361/10, COPEN 59 and 8436/1/10 COPEN 95 

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PART III - THE IMPLEMENTATION SINCE 2007 OF OTHER INSTRUMENTS 
AMENDING/COMPLMENTING THE FRAMEWORK DECISION ON THE 
EUROPEAN ARREST WARRANT 

Council Framework Decision 2008/909/JHA16 of 27 November 2008 on the application of the 
principle of mutual recognition to judgments in criminal matters imposing custodial sentences 
or  measures  involving  deprivation  of  liberty  for  the  purpose  of  their  enforcement  in  the 
European Union. This instrument contains specific provision for the enforcement of custodial 
sentences  in  the  executing  state  in  respect  of  cases  under  Articles  4(6)  and  5(3)  of  the 
Framework  Decision  on  the  EAW.  The  consent  of  the  sentenced  person  to  transfer  will  no 
longer  be  a  pre-requisite  in  all  cases  and  this  Framework  Decision  will  replace  the  current 
reliance  for  the  transfer  of  sentenced  persons  of  a  majority  of  Member  States  (see  tables  in 
Part VIII) on the 1983 Council of Europe Convention for the Transfer of sentenced Persons 
and its additional Protocol.17 Framework Decision 2008/909/JHA entered into force on the 5 
December 2008 and has an implementation date of 5 December 2011. 

Council  Framework  Decision  2009/299/JHA18  of  26  February  2009  amending  Framework 
thereby 
Decisions  2002/584/JHA,  2005/214/JHA,  2006/783/JHA  and  2008/947/JHA 
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. 
This Framework  Decision  inserts  a  new Article 4(a) in relation to  decisions rendered in  the 
absence  of  the  requested  person  into  the  Framework  Decision  on  the  EAW,  deletes 
Article 5(1)  and  amends  the  EAW  form.  It  aims  to  provide  clear  and  common  grounds  for 
non-recognition of decisions rendered following a trial at which the person concerned did not 
appear in person. It entered into force on 28 March 2009 and has an implementation date of 
28 March 2011. 

Council  Framework  Decision  2009/829/JHA19  of  23  October  2009  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, introduces the 
possibility of transferring a non-custodial supervision measure from the Member State where 
a  non  resident  is  suspected  of  having  committed  an  offence,  to  the  Member  State  where 
he/she is normally resident. This will allow a suspected person to be subject to a supervision 
measure  in  his  or  her  normal  environment  until  the  trial  takes  place  in  the  foreign  Member 
State.  It  entered  into  force  on  1  December  2009  and  has  an  implementation  date  of 
1 December 2012. 

Council  Framework  Decision  2009/948/JHA20  of  30  November  2009  on  prevention  and 
settlement  of  conflicts  of  exercise  of  jurisdiction  in  criminal  proceedings  provides  a 
mechanism  for  consultation  and  co-operation  between  judicial  authorities  when  a  person  is 
the subject of parallel criminal proceedings in different Member States in respect of the same 

16  
17  

18  
19  
20  

Official Journal L 327, 5.12.2008, p.27 
European Treaty Series - No.112. Council of Europe Convention on the Transfer of Sentenced Persons, 
Strasbourg 21.III.1983.  European Treaty Series- No. 167. Additional Protocol to the Convention on the 
Transfer of Sentenced Persons, Strasbourg 18.XII.1997 
Official Journal L 81, 27.3.2009, p.24 
Official Journal L 294, 11.11.2009, p. 20 
Official Journal L 328, 15.12.2009, p. 42 

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facts.  It  entered  into  force  on  15  December  2009  and  has  an  implementation  date  of 
15 June 2012. 

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PART IV - THE EUROPEAN ARREST WARRANT AND THE SCHENGEN 
INFORMATION SYSTEM 

An  EAW  cannot  be  executed  if  the  person  being  sought  is  not  located.  The  Schengen 
Information  System  (SIS)  contains  a  database  used  by  authorities  of  the  Schengen  member 
countries  to  exchange  data  on  certain  categories  of  people  and  objects  including  persons 
wanted  for  arrest  for  extradition.  Member  States  supply  information  (which  becomes  an 
"alert")  from  their  national  systems  to  the  central  system  via  a  common,  secure  network. 
Searches in SIS produce a "hit" when the details of a person or object sought match those of 
an  existing  alert.  This  IT  system  is  supplemented  by  a  network  bureaux  known  as  SIRENE 
(Supplementary Information Request at the National Entry), which is the human interface of 
the SIS. Between January 2008 and 2010 the total number of SIS alerts, in all categories, rose 
from  22.9  million  to  31.6  million.21  Given  this  increasing  volume  and  as  the  SIS  has  been 
operational  since  1995,  work  is  in  progress  on  the  second  generation  of  the  system  with 
enhanced functionalities and based on new technology. This new system (SIS II) is currently 
undergoing extensive tests in cooperation with Member States. 

The  possibility  of  creating  an  alert  in  the  Schengen  Information  System  has  proved  a  very 
useful tool in locating and facilitating the arrest of persons who are the subject of an EAW.  
25  Member  States  and  Schengen  associated  countries  (excluding  BG,  CY,  IE,  RO,  UK) 
currently  participate  fully  in  the  Schengen  Information  System22.  Statistics  from  the  central 
system show that the number of alerts in the Schengen Information System for the purpose of 
the arrest for extradition purposes (including EAWs) is rising steadily, with 19,199 in 2007, 
24,560  in  2008  and  28,666  in  200923  EAW  statistical  data  indicate  that  in  2009  82.5% 
(10,012) of the 12,111 EAWs issued by Schengen participating states were transmitted via the 
Schengen Information System24. 

21  
22  

23  
24  

Council documents 6162/10 COMIX 103, 5441/08 COMIX 3 
At the time of writing BG and RO are using the system but their membership has not been fully ratified. 
The participation of Liechtenstein is envisaged in 2011. 
Council documents 6162/10 COMIX 103; 5764/09 COMIX 75; 5441/08 COMIX 38 
Council document 751/4/10 COPEN 64 

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PART V - THE EUROPEAN ARREST WARRANT AND EUROJUST 

EAW  cases  represent  a  consistent  19%  of  the  total  case  load  of  Eurojust  over  the  past  two 
years.  (267  of  the  1193  cases  registered  with  Eurojust  in  2008  and  256  of  1,372  cases  in 
2009)25. As all but two cases in 2008 and one in 2009 concerned operational issues, it is clear 
that Eurojust plays an important role in the efficient operation of the EAW system and is well 
placed to identify the recurring issues in its practical application26 The issues highlighted by 
Eurojust  include  reluctance  to  surrender  own-nationals;  issues  with  the  legal  basis  for  the 
return of nationals to serve a sentence after conviction; problems related to the absence of a 
proportionality check in some issuing Member States; problems with the speciality rule when 
a person was charged with other offences after surrender; the issue of a person having been 
aware  of  proceedings  where  convicted  in  abstentia  and  the  availability  of  re-trials  in  such 
cases;  differences  in  legal  systems  with  respect  to  life  imprisonment;  missing  information; 
translation  problems  and  delays  in  provision  of  original  and  translated  EAWs;  lack  of 
information  on  periods  of  detention  that  a  surrendered  person  is  entitled  to  have  deducted 
from  a  sentence;  and  issues  arising  from  the  differences  in  legal  systems,  in  particular 
between common law and civil law systems. 

In both 2008 and 2009, Eurojust dealt with 4 cases referred to them pursuant to Article 16 of 
the Framework Decision on the EAW in respect of conflicting EAWs (where the same person 
is  requested  by  two  Member  States).  In  addition,  there  were  28  cases  of  breaches  of  time 
limits reported to Eurojust pursuant to Article 17 of the Framework Decision on the EAW in 
2008 and 30 such cases in 200927. The main reason for time limits not being respected was 
identified  by  Eurojust  as  due  to  delays  arising  from  requests  for  further  information28.  The 
replies of Member States on respecting time limits29 indicate that there are considerably more 
cases where the time limits in the Decision are not met and the relatively low Eurojust figures 
are  therefore  likely  to  be  indicative  of  under-reporting,  despite  the  obligation  to  report 
breaches of time limits to Eurojust in the Framework Decision. 

25  
26  
27  
28  
29  

Eurojust annual reports 2008 and 2009 
Eurojust annual report 2009 p.32-34 
Eurojust annual report 2008 p.20 and 2009 p.31-32 
Eurojust annual report 2008 p.21 
Council document 7551/7/10 COPEN 64 

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PART VI - DECISIONS OF THE EUROPEAN COURT OF JUSTICE 

C-105/03, Pupino (Judgment of 16 June 2005) 

The  Court  held  that  national  law  should  be  interpreted  in  accordance  with  the  wording  and 
purpose  of  a  Framework  Decision  (Although  this  case  arose  in  respect  of  Framework 
Decision 2001/220/JHA on the Standing of Victims in Criminal Proceedings, it is relevant to 
the Decision on the Warrant as it concerned the effect of a Framework Decision). 

Decisions  in  order  of  judgment  date  in  relation  to  the  Framework  Decision  on  the 
European arrest warrant 

C-303/05, Advocaten voor de Wereld (Judgment of 3 May 2007) 

1. Under Article 35(1) EU, the Court has jurisdiction, subject to the conditions laid down in 
that  article,  to  give  preliminary  rulings  on  the  interpretation  and  validity  of,  inter  alia, 
framework decisions, which necessarily implies that it can, even if there is no express power 
to that effect, be called upon to interpret provisions of primary law, such as Article 34(2)(b) 
EU  where  the  Court  is  being  asked  to  examine  whether  a  framework  decision  has  been 
properly adopted on the basis of that latter provision. 

2.  Framework  Decision  2002/584  on  the  European  arrest  warrant  and  the  surrender 
procedures  between  Member  States,  which  provides  for  the  approximation  of  the  laws  and 
regulations of the Member States with regard to judicial cooperation in criminal matters and, 
more specifically, of the rules relating to the conditions, procedures and effects of surrender 
as  between  national  authorities  convicted  persons  or  suspects  for  the  purpose  of  enforcing 
judgments or of criminal proceedings, was not adopted in breach of Article 34(2)(b) EU. 

In so far as it lists and defines, in general terms, the different types of legal instruments which 
may be used in the pursuit of the objectives of the Union set out in Title VI of the EU Treaty, 
Article  34(2)  EU  cannot  be  construed  as  meaning  that  the  approximation  of  the  laws  and 
regulations  of  the  Member  States  by  the  adoption  of  a  framework  decision  under  Article 
34(2)(b) EU cannot relate to areas other than those mentioned in Article 31(1)(e) EU and, in 
particular, the matter of the European arrest warrant. 

Furthermore,  Article  34(2)  EU  also  does  not  establish  any  order  of  priority  between  the 
different instruments listed in that provision. While it is true that the European arrest warrant 
could equally have been the subject of a convention, it is within the Council’s discretion to 
give  preference  to  the  legal  instrument  of  the  framework  decision  in  the  case  where  the 
conditions governing the adoption of such a measure are satisfied. 

This latter conclusion is not invalidated by the fact that, in accordance with Article 31(1) of 
the  Framework  Decision,  the  latter  was  to  replace  from  1 January  2004,  only  in  relations 
between  Member  States,  the  corresponding  provisions  of  the  earlier  conventions  on 
extradition  set  out  in  that  provision.  Any  other  interpretation  unsupported  by  either  Article 
34(2)  EU  or  by  any  other  provision  of  the  EU  Treaty  would  risk  depriving  of  its  essential 

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effectiveness  the  Council’s  recognised  power  to  adopt  framework  decisions  in  fields 
previously governed by international conventions. 

3. The principle of the legality of criminal offences and penalties (nullum crimen, nulla poena 
sine lege), which is one of the general legal principles underlying the constitutional traditions 
common  to  the  Member  States,  has  also  been  enshrined  in  various  international  treaties,  in 
particular  in  Article  7(1)  of  the  European  Convention  on  Human  Rights.  This  principle 
implies that legislation must define clearly offences and the penalties which they attract. That 
condition is met in the case where the individual concerned is in a position, on the basis of the 
wording of the relevant provision and with the help of the interpretative assistance given by 
the courts, to know which acts or omissions will make him criminally liable. 

In so far as it dispenses with verification of the requirement of double criminality in respect of 
the  offences  listed  in  that  provision,  Article  2(2)  of  Framework  Decision  2002/584  on  the 
European arrest warrant and the surrender procedures between Member States is not invalid 
on the ground that it infringes the principle of the legality of criminal offences and penalties. 
The  Framework  Decision  does  not  seek  to  harmonise  the  criminal  offences  in  question  in 
respect of their constituent elements or of the penalties which they attract. While Article 2(2) 
of  the  Framework  Decision  dispenses  with  verification  of  double  criminality  for  the 
categories of offences mentioned therein, the definition of those offences and of the penalties 
applicable continue to be matters determined by the law of the issuing Member State, which, 
as is, moreover, stated in Article 1(3) of the Framework Decision, must respect fundamental 
rights and fundamental legal principles as enshrined in Article 6 EU, and, consequently, the 
principle of the legality of criminal offences and penalties. 

4. In so  far  as it dispenses with verification of double criminality in respect of the offences 
listed therein, Article 2(2) of Framework Decision 2002/584 on the European arrest warrant 
and the surrender procedures between Member States is not invalid inasmuch as it does not 
breach the principle of equality and non-discrimination. 

With regard, first, to the choice of the 32 categories of offences listed in that provision, the 
Council was able to form the view, on the basis of the principle of mutual recognition and in 
the light of the high degree of trust and solidarity between the Member States, that, whether 
by reason of their inherent nature or by reason of the punishment incurred of a maximum of at 
least three years, the categories of offences in question feature among those the seriousness of 
which in terms of adversely affecting public order and public safety justifies dispensing with 
the  verification  of  double  criminality.  Consequently,  even  if  one  were  to  assume  that  the 
situation  of  persons  suspected  of  having  committed  offences  featuring  on  the  list  set  out  in 
Article  2(2)  of  the  Framework  Decision  or  convicted  of  having  committed  such  offences  is 
comparable to the situation of persons suspected of having committed, or convicted of having 
committed, offences other than those listed in that provision, the distinction is, in any event, 
objectively justified. 

With regard, second, to the fact that the lack of precision in the definition of the categories of 
offences in question risks giving rise to disparate implementation of the Framework Decision 
within the various national legal orders, suffice it to point out that it is not the objective of the 
Framework Decision to harmonise the substantive criminal law of the Member States and that 
nothing  in  Title  VI  of  the  EU  Treaty  makes  the  application  of  the  European  arrest  warrant 
conditional on harmonisation of the criminal laws of the Member States within the area of the 
offences in question. 

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C-66/08 Kozlowski (Judgment of 17 July 2008) 

1.  Article  4(6)  of  Framework  Decision  2002/584  on  the  European  arrest  warrant  and  the 
surrender  procedures  between  Member  States,  which  authorises  the  executing  judicial 
authority  to  refuse  to  execute  such  a  warrant  issued  for  the  purposes  of  execution  of  a 
sentence  where  the  requested  person  ‘is  staying  in,  or  is  a  national  or  a  resident  of,  the 
executing  Member  State’,  and  where  that  State  undertakes  to  execute  that  sentence  in 
accordance with its domestic law, must be interpreted as meaning that a requested person is 
‘resident’ in the executing Member State when he has established his actual place of residence 
there and he is ‘staying’ there when, following a stable period of presence in that State, he has 
acquired  connections  with  that  State  which  are  of  a  similar  degree  to  those  resulting  from 
residence. 

Since  the  objective  of  the  Framework  Decision  is  to  put  in  place  a  system  of  surrender,  as 
between  judicial  authorities,  of  convicted  persons  or  suspects  for  the  purpose  of  enforcing 
judgments  or  of  criminal  proceedings,  based  on  the  principle  of  mutual  recognition  –  a 
surrender  which  the  executing  judicial  authority  can  oppose  only  on  one  of  the  grounds  for 
refusal provided for by the Framework Decision – the terms ‘staying’ and ‘resident’, which 
determine  the  scope  of  Article  4(6),  must  be  defined  uniformly,  since  they  concern 
autonomous concepts of Union law. Therefore, in their national law transposing Article 4(6), 
the  Member  States  are  not  entitled  to  give  those  terms  a  broader  meaning  than  that  which 
derives from such a uniform interpretation. 

2. In order to ascertain, when interpreting Article 4(6) of Framework Decision 2002/584 on 
the  European  arrest  warrant  and  the  surrender  procedures  between  Member  States,  whether 
there  are  connections  between  the  requested  person  and  the  executing  Member  State  which 
lead to the conclusion that that person is covered by the term ‘staying’ within the meaning of 
that  provision,  which  authorises  the  executing  judicial  authority  to  refuse  to  execute  such  a 
warrant  issued  for  the  purposes  of  execution  of  a  sentence  where  the  requested  person  is 
staying in the executing Member State, it is for that authority to make an overall assessment 
of various objective factors characterising the situation of that person, including, in particular, 
the  length,  nature  and  conditions  of  his  presence  and  the  family  and  economic  connections 
which that person has with the executing Member State. 

C-296/08 PPU, Santesteban Goicoechea (Judgment of 12 August 2008) 

1. The fact that an order for reference concerning the interpretation of a framework decision 
adopted under Title VI of the EU Treaty does not mention Article 35 EU but refers to Article 
234  EC  cannot  of  itself  make  the  reference  for  a  preliminary  ruling  inadmissible.  That 
conclusion is reinforced by the fact that the EU Treaty neither expressly nor by implication 
lays  down  the  form  in  which  the  national  court  must  present  its  reference  for  a  preliminary 
ruling. 

2.  Since,  under  Article  35  EU,  it  is  for  the  national  court  or  tribunal,  not  the  parties  to  the 
main proceedings, to bring a matter before the Court, the right to determine the questions to 
be put to the Court devolves on the national court alone and the parties may not change their 
tenor. To answer questions formulated by the parties to the main proceedings would moreover 
be incompatible with the function given to the Court by that article and with its duty to ensure 

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that  the  governments  of  the  Member  States  and  the  parties  concerned  are  given  the 
opportunity to submit observations in accordance with Article 23 of the Statute of the Court 
of  Justice,  bearing  in  mind  that  under  that  provision  only  the  order  of  the  referring  court  is 
notified to the interested parties. 

3.  Article  31  of  Framework  Decision  2002/584  on  the  European  arrest  warrant  and  the 
surrender  procedures  between  Member  States  must  be  interpreted  as  referring  only  to  the 
situation  in  which  the  European  arrest  warrant  system  is  applicable,  which  is  not  the  case 
where a request for extradition relates to acts committed before a date specified by a Member 
State in a statement made pursuant to Article 32 of the framework decision. 

4.  Article  32  of  Framework  Decision  2002/584  on  the  European  arrest  warrant  and  the 
surrender  procedures  between  Member  States  must  be  interpreted  as  not  precluding  the 
application by an executing Member State of the Convention relating to extradition between 
the Member States of the European Union drawn up by Council Act of 27 September 1996 
and  signed  on  that  date  by  all  the  Member  States,  even  where  that  convention  became 
applicable in that Member State only after 1 January 2004. 

Making  conventions  such  as  that  convention  relating  to  extradition  between  the  Member 
States of the European Union applicable does not interfere with the European arrest warrant 
system laid down by the framework decision, since, in accordance with Article 31(1) of that 
decision, such a convention can be used only where the European arrest warrant system does 
not  apply.  The  purpose  of  making  conventions  in  the  field  of  extradition  applicable  after  1 
January  2004  can  therefore  only  be  to  improve  the  extradition  system  in  circumstances  in 
which the European arrest warrant system does not apply. 

C-388/08 PPU, Leymann and Pustovarov (Judgment of 1 December 2008) 

1.  A  request  for  a  reference  for  a  preliminary  ruling  concerning  the  interpretation  of 
Framework Decision 2002/584 on the European arrest warrant and the surrender procedures 
between  Member  States  to  be  dealt  with  under  an  urgent  procedure  can  be  granted  on  the 
basis of an indication by the referring court that if prosecution for the offence is ruled out, the 
length  of  the  sentence  imposed  on  the  person  concerned  would  be  reduced  and  his  release 
brought forward. 

2.  Article  27(2)  of  Framework  Decision  2002/584  on  the  European  arrest  warrant  and  the 
surrender  procedures  between  Member  States  lays  down  the  specialty  rule,  according  to 
which  a  person  who  has  been  surrendered  may  not  be  prosecuted,  sentenced  or  otherwise 
deprived of liberty for an offence committed prior to his or her surrender other than that for 
which  he  or  she  was  surrendered.  The  surrender  request  is  based  on  information  which 
reflects  the  state  of  investigations  at  the  time  of  issue  of  the  European  arrest  warrant.  It  is 
therefore  possible  that,  in  the  course  of  the  proceedings,  the  description  of  the  offence  no 
longer  corresponds  in  all  respects  to  the  original  description.  The  evidence  which  has  been 
gathered can lead to a clarification or even a modification of the constituent elements of the 
offence which initially justified the issue of the European arrest warrant. 

The terms ‘prosecuted’, ‘sentenced’ or ‘deprived of liberty’ in Article 27(2) indicate that the 
concept of an ‘offence other’ than that for which the person was surrendered must be assessed 
with  regard  to  the  different  stages  of  the  proceedings  and  in  the  light  of  any  procedural 
document capable of altering the legal classification of the offence. In order to assess, in the 
light  of  the  consent  requirement  contained  in  Article  27(3)(g)  of  the  Framework  Decision, 

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whether it is possible to infer from a procedural document an ‘offence other’ than that referred 
to in the European arrest warrant, the description of the offence in the European arrest warrant 
must be compared with that in the later procedural document. To require the consent of the 
executing  Member  State  for  every  modification  of  the  description  of  the  offence  would  go 
beyond what is implied by the specialty rule and interfere with the objective of speeding up 
and  simplifying  judicial  cooperation  of  the  kind  referred  to  in  the  Framework  Decision 
between the Member States. 

In order to establish whether the offence under consideration is an ‘offence other’ than that for 
which  the  person  was  surrendered  within  the  meaning  of  Article  27(2)  of  Framework 
Decision  2002/584,  requiring  the  implementation  of  the  consent  procedure  referred  to  in 
Article  27(3)(g)  and  27(4)  of  that  Framework  Decision,  it  must  be  ascertained  whether  the 
constituent  elements  of  the  offence,  according  to  the  legal  description  given  by  the  issuing 
State,  are  those  in  respect  of  which  the  person  was  surrendered  and  whether  there  is  a 
sufficient  correspondence  between  the  information  given  in  the  arrest  warrant  and  that 
contained in the later procedural document. Modifications concerning the time or place of the 
offence  are  allowed,  in  so  far  as  they  derive  from  evidence  gathered  in  the  course  of  the 
proceedings  conducted  in  the  issuing  State  concerning  the  conduct  described  in  the  arrest 
warrant, do not alter the nature of the offence and do not lead to grounds for non-execution 
under Articles 3 and 4 of the Framework Decision. 

3. A modification of the description of the offence, concerning only the kind of narcotics in 
question and not changing the legal classification of the offence, is not such, of itself, as to 
define an ‘offence other’ than that for which the person was surrendered within the meaning 
of  Article  27(2)  of  Framework  Decision  2002/584  on  the  European  arrest  warrant  and  the 
surrender procedures between Member States, since it is an offence still punishable according 
to the same scale of penalties and comes under the rubric ‘illegal trafficking in narcotic drugs’ 
in Article 2(2) of that Framework Decision. 

4. The exception in Article 27(3)(c) of Framework Decision 2002/584 on the European arrest 
warrant  and  the  surrender  procedures  between  Member  States,  according  to  which  the 
specialty rule provided for in Article 27(2) does not apply where the criminal proceedings do 
not give rise to the application of a measure restricting personal liberty, must be interpreted as 
meaning  that,  where  there  is  an  ‘offence  other’  than  that  for  which  the  person  was 
surrendered, consent must be requested, in accordance with Article 27(4) of the Framework 
Decision, and obtained if a penalty or a measure involving the deprivation of liberty is to be 
executed. The person surrendered can be prosecuted and sentenced for such an offence before 
that consent has been obtained, provided that no measure restricting liberty is applied during 
the prosecution or when judgment is given for that offence. The exception in Article 27(3)(c) 
does not, however, preclude a measure restricting liberty from being imposed on the person 
surrendered before consent has been obtained, where that restriction is lawful on the basis of 
other charges which appear in the European arrest warrant. 

C-123/08 Wolzenburg (Judgment of 6 October 2009) 

1.  A  national  of  one  Member  State  who  is  lawfully  resident  in  another  Member  State  is 
entitled to rely on the first paragraph of Article 12 EC against national legislation which lays 
down  the  conditions  on  which  the  competent  judicial  authority  can  refuse  to  execute  a 
European arrest  warrant  issued  with  a  view to the enforcement of a custodial sentence. The 
Member States cannot, in the context of the implementation of a framework decision adopted 

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on the basis of the EU Treaty, infringe Community law, in particular the provisions of the EC 
Treaty  relating  to  the  freedom  accorded  to  every  citizen  of  the  Union  to  move  and  reside 
freely within the territory of the Member States. 

2.  Article  4(6)  of  Framework  Decision  2002/584  on  the  European  arrest  warrant  and  the 
surrender procedures between Member States must be interpreted as meaning that, in the case 
of a citizen of the Union, the Member State of execution cannot, in addition to a condition as 
to  the  duration  of  residence  in  that  State,  make  application  of  the  ground  for  optional  non-
execution of a European arrest warrant laid down in that provision subject to supplementary 
administrative requirements, such as possession of a residence permit of indefinite duration. 
Articles  16(1)  and  19  of  Directive  2004/38  on  the  right  of  citizens  of  the  Union  and  their 
family members to move and reside freely within the territory of the Member States do not 
provide,  with  regard  to  Union  citizens  who  have  been  lawfully  resident  in  another  Member 
State  for  a  continuous  period  of  five  years,  for  the  issue,  upon  application,  of  a  document 
attesting  to  the  permanence  of  their  residence,  without  requiring  that  formality.  Such  a 
document has only declaratory and probative force but does not give rise to any right. 

3. The first paragraph of Article 12 EC is to be interpreted as not precluding the legislation of 
a Member State of execution under which the competent judicial authority of that State is to 
refuse to execute a European arrest warrant issued against one of its nationals with a view to 
the enforcement of a custodial sentence, when such a refusal is, in the case of a national of 
another Member State having a right of residence on the basis of Article 18(1) EC, subject to 
the  condition  that  that  person  should  have  lawfully  resided  for  a  continuous  period  of  five 
years in that Member State of execution.  

In  that  regard,  the  principle  of  mutual  recognition,  which  underpins  Framework  Decision 
2002/584  on  the  European  arrest  warrant  and  the  surrender  procedures  between  Member 
States,  means  that,  in  accordance  with  Article  1(2)  of  the  latter,  the  Member  States  are  in 
principle obliged to act upon a European arrest warrant. Apart from the cases of mandatory 
non-execution  laid  down  in  Article  3  of  the  Framework  Decision,  the  Member  States  may 
refuse to execute such a warrant only in the cases listed in Article 4 thereof. It follows that a 
national legislature which, by virtue of the options afforded it by Article 4 of the Framework 
Decision, chooses to limit the situations in which its executing judicial authority may refuse 
to surrender a requested person merely reinforces the system of surrender introduced by that 
Framework  Decision  to  the  advantage  of  an  area  of  freedom,  security  and  justice.  In  that 
context,  when  implementing  Article  4  of  Framework  Decision  2004/584  and  in  particular 
paragraph  6  thereof,  referred  to  in  the  decision  for  reference,  the  Member  States  have,  of 
necessity, a certain margin of discretion.  

The ground for optional non-execution set out in Article 4(6) of the Framework Decision has 
in particular the objective of enabling the executing judicial authority to give particular weight 
to  the  possibility  of  increasing  the  requested  person’s  chances  of  reintegrating  into  society 
when  the  sentence  imposed  on  him  expires.  The  Member  State  of  execution  is  therefore 
entitled  to  pursue  such  an  objective  only  in  respect  of  persons  who  have  demonstrated  a 
certain degree of integration in the society of that Member State. The single condition based 
on  nationality  for  its  own  nationals,  on  the  one  hand,  and  the  condition  of  residence  of  a 
continuous  period  of  five  years  for  nationals  of  other  Member  States,  on  the  other,  may  be 
regarded as being such as to ensure that the requested person is sufficiently integrated in the 
Member  State  of  execution.  That  requirement  for  residence  for  a  continuous  period  of  five 
years does not go beyond what is necessary to attain the objective of ensuring that requested 

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persons who are nationals of other Member States achieve a degree of actual integration in the 
Member State of execution. 

C-306/09 I.B. v Conseil des ministres ( Judgment 21 October 2010) 

Articles 4(6) and 5(3) of Council Framework Decision 2002/584/JHA of 13 June 2002 on the 
European  arrest  warrant  and  the  surrender  procedures  between  Member  States  must  be 
interpreted as meaning that, where the executing Member State has implemented Articles 5(1) 
and Article 5(3) of that framework decision in its domestic legal system, the execution of a 
European  arrest  warrant  issued  for  the  purposes  of  execution  of  a  sentence  imposed  in 
absentia within the meaning of Article 5(1) of the framework decision, may be subject to the 
condition  that  the  person  concerned,  a  national  or  resident  of  the  executing  Member  State, 
should  be  returned  to  the  executing  State  in  order,  as  the  case  may  be,  to  serve  there  the 
sentence  passed  against  him,  following  a  new  trial  organised  in  his  presence  in  the  issuing 
Member State. 

C-261/09 Mantello (Judgment 16 November 2010) 

For the purposes of the issue and execution of a European arrest warrant, the concept of ‘same 
acts’ in Article 3(2) of Council Framework Decision 2002/584/JHA of 13 June 2002 on the 
European arrest warrant and the surrender procedures between Member States constitutes an 
autonomous concept of European Union law. 

In  circumstances  such  as  those  at  issue  in  the  main  proceedings  where,  in  response  to  a 
request for information within the meaning of Article 15(2) of that Framework Decision made 
by the executing judicial authority, the issuing judicial authority, applying its national law and 
in compliance with the requirements deriving from the concept of ‘same acts’ as enshrined in 
Article 3(2) of the Framework Decision, expressly stated that the earlier judgment delivered 
under its legal system did not constitute a final judgment covering the acts referred to in the 
arrest warrant issued by it and therefore did not preclude the criminal proceedings referred to 
in that arrest warrant, the executing judicial authority has no reason to apply, in  connection 
with such a judgment, the ground for mandatory non-execution provided for in Article 3(2) of 
the Framework Decision. 

Decisions  in  order  of  judgment  date  on  interpretation  of  ne  bis  in  idem  in  relation  to 
Article  54  of  the  Convention  Implementing  the  Schengen  Agreement  (CISA)30 
(applicable to the Framework Decision on the European arrest warrant by virtue of the 
judgment in C-261/09 Mantello) 

Article  54  CISA"A  person  who  has  been  finally  judged  by  a  Contracting  Party  may  not  be 
prosecuted  by  another  Contracting  party  for  the  same  offences  provided  that,  where  he  is 

30  

Official  Journal  L  239,  22.09.2000  p.0019-0062.  Convention  of  19  June  1990  implementing  the 
Schengen agreement (CISA) of 14 June 1985 

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sentenced,  the  sentence  has  been  served  or  is  currently  being  served  or  can  no  longer  be 
carried out under the sentencing law of the Contracting party." 

Article 3(2) Framework  Decision  on the European arrest warrant: "The judicial authority of 
the  Member  State  of  execution  shall  refuse  to  execute  the  European  arrest  warrant  if  the 
executing judicial authority is informed that the requested person has been finally judged by a 
Member State in respect of the same acts provided that, where there has been sentence, the 
sentence has been served or is currently being served or may no longer be executed under the 
law of the sentencing Member State." 

C187/01 & C385/01 (joined cases) Gozutok and Brugge (Judgment 11 February 2003) 

The  ne  bis  in  idem  principle,  laid  down  in  Article  54  of  the  Convention  implementing  the 
Schengen Agreement of 14 June 1985 between the Governments of the States of the Benelux 
Economic Union, the Federal Republic of Germany and the French Republic on the gradual 
abolition  of  checks  at  their  common  borders,  signed  on  19  June  1990  at  Schengen,  also 
applies to procedures whereby further prosecution is barred, such as the procedures at issue in 
the  main  actions,  by  which  the  Public  Prosecutor  of  a  Member  State  discontinues  criminal 
proceedings brought in that State, without the involvement of a court, once the accused has 
fulfilled certain obligations and, in particular, has paid a certain sum of money determined by 
the Public Prosecutor. 

C-469/03 Miraglia (Judgment 10 March 2005) 

The  principle  ne  bis  in  idem,  enshrined  in  Article  54  of  the  Convention  implementing  the 
Schengen Agreement, the purpose of which is to ensure that no one is prosecuted on the same 
facts  in  several  Member  States  on  account  of  his  having  exercised  his  right  to  freedom  of 
movement, does not fall to be applied to a decision of the judicial authorities of one Member 
State declaring a case to be closed, after the Public Prosecutor has decided not to pursue the 
prosecution  on  the  sole  ground  that  criminal  proceedings  have  been  started  in  another 
Member  State  against  the  same  defendant  and  for  the  same  acts,  without  any  determination 
whatsoever as to the merits of the case. Such a decision cannot in fact constitute a decision 
finally disposing of the case against that person within the meaning of Article 54. 

The consequence of applying that principle to such a decision to close criminal proceedings 
would  be  to  make  it  more  difficult,  indeed  impossible,  actually  to  penalise  in  the  Member 
States  concerned  the  unlawful  conduct  with  which  the  defendant  is  charged.  Such  a 
consequence would clearly run counter to the very purpose of the provisions of Title VI of the 
Treaty on European Union, as set out in the fourth indent of the first subparagraph of Article 2 
EU. 

C-436/04 Van Esbroeck (Judgment 9 March 2006) 

1. The ne bis in idem principle, enshrined in Article 54 of the Convention implementing the 
Schengen Agreement, must be applied to criminal proceedings brought in a Contracting State 
for  acts  for  which  a  person  has  already  been  convicted  in  another  Contracting  State  even 
though the Convention was not yet in force in the latter State at the time at which that person 
was convicted, in so far as the Convention was in force in the Contracting States in question 
at the time of the assessment, by the court before which the second proceedings were brought, 
of the conditions of applicability of the ne bis in idem principle. 

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2.  Contrary  to  Article  14(7)  of  the  International  Covenant  on  Civil  and  Political  Rights  and 
Article 4 of Protocol No 7 to the European Convention of Human Rights, which enshrine the 
ne  bis  in  idem  principle  by  using  the  term  ‘offence’,  Article  54  of  the  Convention 
implementing  the  Schengen  Agreement  (CISA)  must  be  interpreted  as  meaning  that  the 
relevant criterion for the purposes of the application of that article is identity of the material 
acts,  understood  as  the  existence  of  a  set  of  facts  which  are  inextricably  linked  together, 
irrespective of the legal classification given to them or the legal interest protected. 

Nowhere  in  Title  VI  of  the  Treaty  on  European  Union  relating  to  police  and  judicial 
cooperation  in  criminal  matters,  or  in  the  Schengen  Agreement  or  the  CISA  itself,  is  the 
application  of  Article  54  of  the  CISA  made  conditional  upon  harmonisation,  or  at  the  least 
approximation, of the criminal laws of the Member States. The ne bis in idem principle thus 
necessarily  implies  that  the  Contracting  States  have  mutual  trust  in  their  criminal  justice 
systems  and  that,  since  there  is  no  harmonisation  of  national  criminal  laws,  each  of  them 
recognises the criminal law in force in the other Contracting States even when the outcome 
would be different if its own national law were applied. 

The  definitive  assessment  of  the  identity  of  the  material  acts  belongs  to  the  competent 
national  courts  which  are  charged  with  the  task of  determining  whether  the  material  acts  at 
issue constitute a set of facts which are inextricably linked together in time, in space and by 
their subject-matter. 

It follows that punishable acts consisting of exporting and importing the same narcotic drugs 
and which are prosecuted in different Contracting States to the CISA are, in principle, to be 
regarded  as  ‘the  same  acts’  for  the  purposes  of  Article  54,  the  definitive  assessment  in  that 
respect being the task of the competent national courts. 

C-467/04 Gasparini and others (Judgment 28 September 2006) 

1. The ne bis in idem principle, enshrined in Article 54 of the Convention implementing the 
Schengen Agreement, applies in respect of a decision of a court of a Contracting State, made 
after  criminal  proceedings  have  been  brought,  by  which  the  accused  is  acquitted  finally 
because prosecution of the offence is time-barred. 

The  main  clause  of  the  single  sentence  comprising  Article  54  of  the  Convention  makes  no 
reference to the content of the judgment that has become final. It is not applicable solely to 
judgments convicting the accused. 

Furthermore,  not  to  apply  Article  54  where  the  accused  is  finally  acquitted  because 
prosecution  for  the  offence  is  time-barred  would  undermine  the  implementation  of  the 
objective of that provision which is to ensure that no one is prosecuted for the same acts in 
several  Contracting  States  on  account  of  the  fact  that  he  exercises  his  right  to  freedom  of 
movement. Such a person must therefore be regarded as having had his trial finally disposed 
of for the purposes of that provision. 

It  is  true  that  the  laws  of  the  Contracting  States  on  limitation  periods  have  not  been 
harmonised. However, nowhere in Title VI of the EU Treaty, relating to police and judicial 
cooperation  in  criminal  matters,  or  in  the  Schengen  Agreement  or  the  Convention 
implementing the latter is the application of Article 54 made conditional upon harmonisation, 
or at the least approximation, of the criminal laws of the Member States relating to procedures 
is  barred  or,  more  generally,  upon  harmonisation  or 
whereby  further  prosecution 

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approximation of their criminal laws. There is a necessary implication in the ne bis in idem 
principle  that  the  Contracting  States  have  mutual  trust  in  their  criminal  justice  systems  and 
that  each  of  them  recognises  the  criminal  law  in  force  in  the  other  Contracting  States  even 
when the outcome would be different if its own national law were applied. 

Finally,  Framework  Decision  2002/584  on  the  European  arrest  warrant  and  the  surrender 
procedures  between  Member  States  does  not  preclude  the  ne  bis  in  idem  principle  from 
applying  in  the  case  of  a  final  acquittal  because  prosecution  of  the  offence  is  time-barred. 
Exercise  of  the  power,  provided  for  in  Article  4(4)  of  the  framework  decision,  to  refuse  to 
execute a European arrest warrant inter alia where the criminal prosecution of the requested 
person  is  time-barred  according  to  the  law  of  the  executing  Member  State  and  the  acts  fall 
within  the  jurisdiction  of  that  State  under  its  own  criminal  law  is  not  conditional  on  the 
existence of a judgment whose basis is that a prosecution is time-barred. The situation where 
the requested person has been finally judged by a Member State in respect of the same acts is 
governed  by  Article  3(2)  of  the  framework  decision,  a  provision  which  lays  down  a 
mandatory ground for non-execution of a European arrest warrant. 

2. The ne bis in idem principle, enshrined in Article 54 of the Convention implementing the 
Schengen Agreement, does not apply to persons other than those whose trial has been finally 
disposed of in a Contracting State. This interpretation, based on the wording of Article 54 of 
the  Convention,  is  borne  out  by  the  purpose  of  the  provisions  of  Title  VI  of  the  Treaty  on 
European Union, as set out in the fourth indent of the first paragraph of Article 2 EU. 

3.  A  criminal  court  of  a  Contracting  State  cannot  hold  goods  to  be  in  free  circulation  in 
national  territory  solely  because  a  criminal  court  of  another  Contracting  State  has  found,  in 
relation to the same goods, that prosecution for the offence of smuggling is time-barred. 

In order for products coming from a third country to be considered to be in free circulation in 
a Member State the three conditions laid down in Article 24 EC must be met. A finding by a 
court of a Member State that prosecution of a defendant for the offence of smuggling is time-
barred  does  not  alter  the  legal  classification  of  the  products  in  question,  since  the  ne  bis  in 
idem  principle,  enshrined  in  Article  54  of  the  Convention  implementing  the  Schengen 
Agreement, binds the courts of a Contracting State only in so far as it precludes a defendant 
who  has  already  had  his  case  finally  disposed  of  in  another  Contracting  State  from  being 
prosecuted a second time for the same acts. 

4. The only relevant criterion for applying the concept of ‘the same acts’ within the meaning 
of  Article  54  of  the  Convention  implementing  the  Schengen  Agreement  is  identity  of  the 
material  acts,  understood  as  the  existence  of  a  set  of  concrete  circumstances  which  are 
inextricably linked together. Accordingly, the marketing of goods in another Member State, 
after  their  importation  into  the  Member  State  where  the  accused  was  acquitted  because 
prosecution  for  the  offence  of  smuggling  was  time-barred,  constitutes  conduct  which  may 
form part of the ‘same acts’ within the meaning of Article 54 of the Convention. However, the 
definitive  assessment  in  this  regard  is  a  matter  for  the  competent  national  courts  which  are 
charged with the task of determining whether the material acts at issue constitute a set of facts 
which are inextricably linked together in time, in space and by their subject-matter. 

C- 150/05 Van Straaten and others (Judgment 28 September 2006) 

1. In the context of the cooperation between the Court of Justice and national courts that is 
provided for by Article 234 EC, it is solely for the national court before which the dispute has 

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been brought, and which must assume responsibility for the subsequent judicial decision, to 
determine  in  the  light  of  the  particular  circumstances  of  the  case  both  the  need  for  a 
preliminary ruling in order to enable it to deliver judgment and the relevance of the questions 
which  it  submits  to  the  Court.  Consequently,  where  the  questions  submitted  concern  the 
interpretation of Community law, the Court is, in principle, bound to give a ruling. 

The  Court  may  refuse  to  rule  on  a  question  referred  for  a  preliminary  ruling  by  a  national 
court only where it is quite obvious that the interpretation of Community law that is sought 
bears  no  relation  to  the  actual  facts  of  the  main  action  or  its  purpose,  where  the  problem  is 
hypothetical, or where the Court does not have before it the factual or legal material necessary 
to give a useful answer to the questions submitted to it. 

2. Although the Court has no jurisdiction under Article 234 EC to apply a rule of Community 
law to a particular case and thus to judge a provision of national law by reference to such a 
rule, it may, in the framework of the judicial cooperation provided for by that article and on 
the  basis  of  the  material  presented  to  it,  provide  the  national  court  with  an  interpretation  of 
Community law which may be useful to it in assessing the effects of the provision in question. 

3. Article 54 of the Convention implementing the Schengen Agreement must be interpreted as 
meaning that the relevant criterion for the purposes of the application of that article is identity 
of the material acts, understood as the existence of a set of facts which are inextricably linked 
together, irrespective of the legal classification given to them or the legal interest protected. 

In the case of offences  relating  to  narcotic drugs, first, the quantities of the drug that are at 
issue in the two Contracting States concerned or the persons alleged to have been party to the 
acts in the two States are not required to be identical. It is therefore possible that a situation in 
which  such  identity  is  lacking  involves  a  set  of  facts  which,  by  their  very  nature,  are 
inextricably  linked.  Second,  punishable  acts  consisting  of  exporting  and  of  importing  the 
same  narcotic  drugs  and  which  are  prosecuted  in  different  Contracting  States  party  to  the 
Convention are, in principle, to be regarded as ‘the same acts’ for the purposes of Article 54 
of  the  Convention,  the  definitive  assessment  in  that  respect  being  the  task  of  the  competent 
national courts. 

4. The ne bis in idem principle, enshrined in Article 54 of the Convention implementing the 
Schengen  Agreement,  a  provision  which  has  the  objective  of  ensuring  that  no  one  is 
prosecuted  for  the  same  acts  in  several  Contracting  States  on  account  of  the  fact  that  he 
exercises his right to freedom of movement, falls to be applied in respect of a decision of the 
judicial authorities of a Contracting State by which the accused is acquitted finally for lack of 
evidence. 

The  main  clause  of  the  single  sentence  comprising  Article  54  of  the  Convention  makes  no 
reference to the content of the judgment that has become final. It is only in the subordinate 
clause that Article 54 refers to the case of a conviction by stating that, in that situation, the 
prohibition of a prosecution is subject to a specific condition. If the general rule laid down in 
the  main  clause  were  applicable  only  to  judgments  convicting  the  accused,  it  would  be 
superfluous to provide that the special rule is applicable in the event of conviction. 

Furthermore,  not  to  apply  Article  54  of  the  Convention  to  a  final  decision  acquitting  the 
accused  for  lack  of  evidence  would  have  the  effect  of  jeopardising  exercise  of  the  right  to 
freedom of movement. 

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Finally,  in  the  case  of  a  final  acquittal  for  lack  of  evidence,  the  bringing  of  criminal 
proceedings in another Contracting State for the same acts would undermine the principles of 
legal  certainty  and  of  the  protection  of  legitimate  expectations.  The  accused  would  have  to 
fear a fresh prosecution in another Contracting State although a case in  respect of the same 
acts has been finally disposed of. 

C-288/05 Kretzinger (Judgment 18 July 2007) 

1. Article 54 of the Convention implementing the Schengen Agreement must be interpreted as 
meaning that: 

–  The  relevant  criterion  for  the  purposes  of  the  application  of  that  article  is  identity  of  the 
material  acts,  understood  as  the  existence  of  a  set  of  facts  which  are  inextricably  linked 
together, irrespective of the legal classification given to them or the legal interest protected; 

–  Acts  consisting  in  receiving  contraband  foreign  tobacco  in  one  Contracting  State  and  of 
importing  that  tobacco  into  another  Contracting  State  and  being  in  possession  of  it  there, 
characterised  by  the  fact  that  the  defendant, who  was  prosecuted  in  two  Contracting  States, 
had intended from the outset to transport the tobacco, after first taking possession of it, to a 
final destination, passing through several Contracting States in the process, constitute conduct 
which may be covered by the notion of ‘same acts’ within the meaning of Article 54. It is for 
the competent national courts to make the final assessment in that respect. 

2. For the purposes of Article 54 of the Convention implementing the Schengen Agreement 
(CISA),  a  penalty  imposed  by  a  court  of  a  Contracting  State  ‘has  been  enforced’  or  is 
‘actually  in  the  process  of  being  enforced’  if  the  defendant  has  been  given  a  suspended 
custodial sentence. 

A suspended custodial sentence, which penalises the unlawful conduct of a convicted person, 
constitutes  a  penalty  within  the  meaning  of  Article  54  of  the  CISA.  That  penalty  must  be 
regarded  as  ‘actually  in  the  process  of  being  enforced’  as  soon  as  the  sentence  has  become 
enforceable  and  during  the  probation  period.  Subsequently,  once  the  probation  period  has 
come to an end, the penalty must be regarded as ‘having been enforced’ within the meaning of 
that provision. 

3. For the purposes of Article 54 of the CISA, a penalty imposed by a court of a Contracting 
State  is  not  to  be  regarded  as  ‘having  been  enforced’  or  ‘actually  in  the  process  of  being 
enforced’ where the defendant was for a short time taken into police custody and/or held on 
remand pending trial and that detention would count towards any subsequent enforcement of 
the custodial sentence under the law of the State in which judgment was given. 

The purpose of detention on remand pending trial is very different from that underlying the 
enforcement condition laid down in Article 54 of the CISA. Although the purpose of the first 
is of a preventative nature, that of the second is to avoid a situation in which a person whose 
trial has been finally disposed of in the first State can no longer be prosecuted for the same 
acts  and  therefore  ultimately  remains  unpunished  if  the  State  in  which  sentence  was  first 
passed did not enforce the sentence imposed. 

4. The fact that a Member State in which a person has been sentenced by a final and binding 
judgment  under  its  national  law  may  issue  a  European  arrest  warrant  for  the  arrest  of  that 
person in order to enforce the sentence under Framework Decision 2002/584 on the European 

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arrest  warrant  and  the  surrender  procedures  between  Member  States  cannot  affect  the 
interpretation of the notion of ‘enforcement’ within the meaning of Article 54 of the CISA. 

That  enforcement  condition  could  not,  by  definition,  be  satisfied  where  a  European  arrest 
warrant were to be issued after trial and conviction in a first Member State precisely in order 
to  ensure  the  execution  of  a  custodial  sentence  which  had  not  yet  been  enforced  within  the 
meaning of Article 54 of the CISA. 

That  is  confirmed  by  the  Framework  Decision  itself  which,  in  Article  3(2),  requires  the 
Member  State  addressed  to  refuse  to  execute  a  European  arrest  warrant  if  the  executing 
judicial authority is informed that the requested person has been finally judged by a Member 
State  in  respect  of  the  same  acts  and  that,  where  there  has  been  sentence,  the  enforcement 
condition has been satisfied. 

That outcome is supported by the fact that the interpretation of Article 54 of the CISA cannot 
depend on the provisions of the Framework Decision without giving rise to legal uncertainty 
that  would  result,  first,  from  the  fact  that  the  Member  States  bound  by  the  Framework 
Decision  are  not  all  bound  by  the  CISA  which,  moreover,  applies  to  certain  non-Member 
States  and,  second,  from  the  fact  that  the  scope  of  the  European  arrest  warrant  is  limited, 
which is not case in respect of Article 54 of the CISA, which applies to all offences punished 
by the States which have acceded to that agreement. 

Accordingly, the fact that a final and binding custodial sentence could possibly be enforced in 
the sentencing State following the surrender by another State of the convicted person cannot 
affect the interpretation of the notion of ‘enforcement’ within the meaning of Article 54 of the 
CISA. 

C-367/05 Kraaijenbrink (Judgment 18 July 2007) 

1. Article 54 of the Convention implementing the Schengen Agreement must be interpreted as 
meaning that: 

–  The  relevant  criterion  for  the  purposes  of  the  application  of  that  article  is  identity  of  the 
material  acts,  understood  as  the  existence  of  a  set  of  facts  which  are  inextricably  linked 
together, irrespective of the legal classification given to them or the legal interest protected; 

–  Different  acts  consisting,  in  particular,  first,  in  holding  in  one  Contracting  State  the 
proceeds of drug  trafficking and, second, in the exchanging at exchange bureaux in another 
Contracting  State  of  sums  of  money  also  originating  from  such  trafficking  should  not  be 
regarded as ‘the same acts’ within the meaning of that article merely because the competent 
national court finds that those acts are linked together by the same criminal intention; 

– It is for that national court to assess whether the degree of identity and connection between 
all  the  facts  to  be  compared  is  such  that  it  is  possible,  in  the  light  of  the  said  relevant 
abovementioned criterion, to find that they are ‘the same acts’ within the meaning of the said 
Article 54. 

(see para. 36, operative part) 

2.  It  is  apparent  from  Article  58  of  the  Convention  implementing  the  Schengen  Agreement 
(CISA) that the Contracting States are entitled to apply broader national provisions on the ne 

EN 

28 

   EN 

 
bis in idem principle with regard to judicial decisions taken abroad. However, that article does 
not in any way authorise a Contracting State to refrain from trying a drugs offence, in breach 
of  its  obligations  under  Article  71  of  the  CISA,  read  in  conjunction  with  Article  36  of  the 
Single Convention on Narcotic Drugs, concluded in New York on 30 March 1961 under the 
aegis  of  the  United  Nations,  on  the  sole  ground  that  the  person  charged  has  already  been 
convicted  in  another  Contracting  State  in  respect  of  other  offences  motivated  by  the  same 
criminal intention. On the other hand, those provisions do not mean that in national law the 
competent  courts  before  which  a  second  set  of  proceedings  is  brought  are  precluded  from 
taking account, when fixing the sentence, of penalties which may have already been imposed 
in the first set of proceedings. 

C-297/07 Bourquain (Judgment 11 December 2008) 

1.  Since  Article  54  of  the  Convention  implementing  the  Schengen  Agreement  (CISA)  does 
not provide that the person concerned must necessarily have been tried in the territory of the 
Contracting Parties, that provision, the purpose of which is to protect a person whose trial has 
been  finally  disposed  of  against  further  prosecution  in  respect  of  the  same  acts,  cannot  be 
interpreted as meaning that Articles 54 to 58 of the CISA are never applicable to persons who 
have been tried by a Contracting Party exercising its jurisdiction beyond the territory to which 
that Convention applies. 

2. Article 54 of the Convention implementing the Schengen Agreement (CISA), applied to a 
judgment  in  absentia  delivered  in  accordance  with  the  national  legislation  of  a  Contracting 
State or to an ordinary judgment, necessarily implies that the Contracting States have mutual 
trust  in  their  criminal  justice  systems  and  that  each  of  them  recognises  the  criminal  law  in 
force  in  the  other  Contracting  States  even  when  the  outcome  would  be  different  if  its  own 
national law were applied. 

According  to  the  actual  wording  of  Article  54 of  the  CISA,  judgments  rendered  in  absentia 
are not excluded from its scope of application, the sole condition being that there has been a 
final disposal of the trial by a Contracting Party. 

However,  the  sole  fact  that  the  proceedings  in  absentia  would,  under  the  national  law 
governing the proceedings in question, have necessitated the reopening of the proceedings if 
the person concerned had been apprehended while time was running in the limitation period 
applicable  to  the  penalty,  does  not,  in  itself,  mean  that  the  conviction  in  absentia  cannot  be 
regarded as a final decision within the meaning of Article 54 of the CISA. 

3. The ne bis in idem principle, enshrined in Article 54 of the Convention implementing the 
Schengen Agreement (CISA), is applicable to criminal proceedings instituted in a Contracting 
State against an accused whose trial for the same acts as those for which he faces prosecution 
was finally disposed of in another Contracting State, even though, under the law of the State 
in which he was convicted, the sentence which was imposed on him could never, on account 
of specific features of procedure of the law of that State, have been directly enforced. 

In that regard, the condition regarding enforcement referred to in that article is satisfied when 
it is established that, at the time when the second criminal proceedings were instituted against 
the  same  person  in  respect  of  the  same  acts  as  those  which  led  to  a  conviction  in  the  first 
Contracting State, the penalty imposed in that first State can no longer be enforced according 
to the laws of that State. 

EN 

29 

   EN 

 
C-491/07 Turansky (Judgment 22 December 2008) 

The  ne  bis  in  idem  principle  enshrined  in  Article  54  of  the  Convention  implementing  the 
Schengen Agreement, which aims to ensure that a person is not prosecuted for the same acts 
in  the  territory  of  several  Contracting  States  on  account  of  his  having  exercised  his  right  to 
freedom  of  movement,  does  not  fall  to  be  applied  to  a  decision  by  which  an  authority  of  a 
Contracting State, after examining the merits of the case brought before it, makes an order, at 
a  stage  before  the  charging  of  a  person  suspected  of  a  crime,  suspending  the  criminal 
proceedings,  where  the  suspension  decision  does  not,  under  the  national  law  of  that  State, 
definitively bar further prosecution and therefore does not preclude new criminal proceedings, 
in respect of the same acts, in that State. 

Therefore,  a  decision  of  a  police  authority  which,  while  suspending  criminal  proceedings, 
does not under the national law concerned definitively bring the prosecution to an end, cannot 
constitute a decision which would make it possible to conclude that the trial of that person has 
been  ‘finally  disposed  of’  within  the  meaning  of  Article  54  of  the  abovementioned 
Convention. 

EN 

30 

   EN 

 
PART VII - REFERENCE NUMBERS OF THE INDIVIDUAL COUNCIL 
EVALUATION REPORTS OF THE MEMBER STATES CONCERNING THE 
APPLICATION OF THE EAW FD 

Austria (7024/08 COR 1 REV 1 CRIMORG 41 + COR 1) 

Belgium (16454/2/06 REV 2 CRIMORG 196) 

Bulgaria (8265/09 CRIMORG 52) 

Cyprus (14135/2/07 REV 2 CRIMORG 155) 

Czech Republic (15691/2/08 REV 2 CRIMORG 194) 

Denmark (13801/2/06 REV 2 CRIMORG 149) 

Estonia (5301/2/07 REV 2 CRIMORG 9) 

Finland (11787/2/07 REV 2 CRIMORG 125) 

France (9972/2/07 REV 2 CRIMORG 95) 

Germany (7058/1/09 REV 1 CRIMORG 32) 

Greece (13416/1/08 REV 2 CRIMORG 146) 

Hungary (15317/2/07 REV 2 CRIMORG 174) 

Ireland (11843/2/06 REV 2 CRIMORG 129 + COR 1) 

Italy (5832/2/09 REV 2 CRIMORG 19) 

Latvia (17220/1/08 REV 1 CRIMORG 213) 

Lithuania (12399/2/07 REV 2 CRIMORG 134) 

Luxemburg (10086/1/07 REV 1 CRIMORG 101) 

Malta (9617/2/08 REV 2 CRIMORG 75) 

Netherlands (15370/2/08 REV 2 CRIMORG 185) 

Poland (14240/2/07 REV 2 CRIMORG 158) 

Portugal (7593/2/07 REV 2 CRIMORG 59) 

Romania (8267/09 CRIMORG 53) 

Slovak Republic (7060/1/09 CRIMORG 33) 

Slovenia (7301/2/08 REV 2 CRIMORG 44) 

EN 

31 

   EN 

 
Spain (5085/2/07 REV 2 CRIMORG 5) 

Sweden (9927/2/08 REV 2 CRIMORG 79) 

United Kingdom (9974/2/07 REV 2 EXT 1 CRIMORG 96) 

EN 

32 

   EN 

 
PART VIII - TABLES OF ALL THE MEMBER STATES SETTING OUT THE 
FOLLOWING INFORMATION (WHERE RECEIVED) 

•  The responses of the Member States to the recommendations of the individual evaluation 
reports  of  the  Council  (for  the  reference  numbers  of  the  individual  reports,  see  Part  VII) 
with the comments 2.2.1. of this report included therein. 

•  General information on the application of the FD in each Member State, with reference to 
issues raised in the general recommendations of the Council made in the fourth round of 
mutual evaluations in 2009. 

•  The  responses  of  the  Member  States  to  the  observations  set  out  in  the  implementation 

report of the Commission from 2007. 

•  Where available, they also give an insight in the case law of interest in the country or in the 

preliminary questions asked to the European Court of Justice. 

•  Content 

Austria 
Table 1 
Belgium 
Table 2 
Bulgaria 
Table 3 
Table 4 
Cyprus 
Czech Republic  Table 5 
Table 6 
Denmark   
Table 7 
Estonia 
Table 8 
Finland 
Table 9 
France 
Table 10 
Germany   
Table 11 
Greece 
Table 12 
Hungary 
Table 13 
Ireland 
Table 14 
Italy 
Table 15 
Latvia 
Table 16 
Lithuania   
Table 17 
Luxemburg 
Table 18 
Malta 
Table 19 
Netherlands 
Table 20 
Poland 
Table 21 
Portugal 
Table 22 
Romania 
Slovak Republic  Table 23 
Table 24 
Slovenia 
Table 25 
Spain 
Sweden 
Table 26 
United Kingdom  Table 27 

EN 

33 

   EN 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
1. AUSTRIA 

Recommendations EAW report 29-2-2008 

Follow up report 3-8-2009 

(7024/08 COR 1 REV 1 CRIMORG 41 + COR 1) 

New developments 

1 - To adopt measures to ensure that appropriate 
training programmes are put in place, so that 
extensive and regular training on EAW is provided to 
judges, public prosecutors and defence lawyers (see 
7.1.7). 

its 

changed 

legislation  with 

AT 
the 
introduction  of  legislation,  entitled:  "Federal 
in  criminal 
law  on 
matters  with  Member  States  of  the  European 
Union"  which  took  effect  from  1st  January 
2008 

judicial  cooperation 

It  should  be  noted  that  there  are  already 
sufficient  national 
training  programmes 
dealing  with  the  cooperation  in  criminal 
matters  with  the  Member  States  of  the  EU 
including  the  legal  bases  and  the  practical 
application  of  the  FD  on  the  EAW  and  its 
implementation by AT. 

The  following  seminars,  which  took  place 
over  the  last  months  and  inter  alia  dealt  with 
the  cooperation  in  criminal  matters  with  the 
EU-MS, should be mentioned: 

- topical questions of penal law (organized by 
the Linz Court of Appeal); 

-  training  seminar  for  public  prosecutors 
(organized  by 
the  Linz  Senior  Public 
Prosecution office); 

-  seminar  on  penal  law  (organized  by  the 
association of Austrian judges);  

-  forum  of  public  prosecutors  (organized  by 
the  Innsbruck  Senior  Public  Prosecution 
office); and 

- seminar on penal law (organized by the Graz 
Court of Appeal together with the Graz Senior 
Public Prosecution office). 

judges  and  public 
Furthermore,  Austrian 
prosecutors  are  offered  the  possibility  to 
participate  in  international  conferences  and 
seminars  dedicated  to  international  criminal 
law,  including  the  FD  on  the  EAW,  on  a 
regular basis.  

The  following  conferences  and  seminars, 
which took place over the last months, should 
be mentioned: 

EN 

34 

   EN 

 
-  “using  EU-criminal  justice  instruments” 
(organized  by  the  European  Law  Academy, 
ERA); 

-  forum  on  mutual  recognition  of  judicial 
decisions  in  criminal  matters  in  the  EU 
(organized  by  the  European  Law  Academy, 
ERA); 

-  conference  on  international  cooperation  in 
criminal matters (Sarajevo); and 

- exchange of views on international criminal 
law with DE, CZ and SK. 

As  far  as  defence  counsels  are  concerned,  it 
has  to  be  emphasized  that  their  training  does 
not  fall  within  the  responsibility  of  the 
Austrian  Ministry  of  Justice  but  rather  of  the 
Austrian  Chamber  of  Defence  Counsels,  due 
to the self-administration of Austrian defence 
counsels. 

communicating 

information  directly  with 

To the knowledge of the Austrian Ministry of 
Justice, AT judicial authorities do make use of 
and 
the  possibility  of 
the 
exchanging 
judicial  authorities  of  other  MS.  However, 
such  direct  contacts  may  be  hampered  by 
language  problems  (by  either  side)  or  by  the 
impossibility  to  find  out  and/or  reach  the 
foreign  counterpart.  In  such  case,  it  seems 
acceptable  to  use  the  current  communication 
channels (SIRENE, Eurojust) instead. 

law 

in  order 

The  production  of  written  guidelines  or  the 
inclusion  of  specific  provisions  in  the  AT 
implementing 
to  promote 
uniform  practice  as  regards  criteria  to  be 
applied when deciding on issuing an EAW is 
not possible as the decision on the issuance of 
an  arrest  warrant,  including  a  EAW,  depends 
on 
the 
the  particular  circumstances  of 
individual case. 

2  -  To  take  measures  to  promote  further  use  by 
judges  and  prosecutors  of 
the  possibility  of 
communicating  and  exchanging  information  directly 
with the judicial authorities of other  Member States, 
while  continuing  to  provide  appropriate  support  to 
current 
(SIRENE, 
Eurojust). (see 7.1.9). 

communication 

channels 

3  -  To  promote,  in  a  manner  considered  appropriate 
(e.g.,  by  producing  written  guidelines,  or  by 
including  specific  provisions  in  the  implementing 
law),  uniform  practice  as  regards  criteria  to  be 
applied  when  deciding  on  issuing  an  EAW  (see 
7.2.1.1). 

To  the  knowledge  of  the  AT  Ministry  of 
Justice,  there  is  no  proportionality  problem 
with regard to EAW issued by AT authorities. 

EN 

35 

   EN 

 
 
 
 
4 - To produce written guidelines providing updated 
and  practical  guidance  to  assist  judicial  authorities 
when issuing an EAW (see 7.2.1.2). 

Written  guidelines  on  the  AT  legislation 
implementing the FD on the EAW were given 
to the AT judicial authorities at the time of the 
entering  into  force  of  that  legislation.  An 
update  of  those  guidelines  does  not  seem 
necessary  as  that  legislation  has  not  been 
amended  yet,  with  the  exception  of  the 
provision  of  Article  4  para.  2  EU-JZG,  of 
which  the  competent  AT  authorities  were 
informed. 

5  To  promote  the  practice  that,  when  available,  the 
information on the description or the ID materials of 
the requested person are provided with the EAW, or, 
at least, the mention "available on request" is made in 
box a) of the EAW form (see 7.2.1.3). 

ID material of the requested person is usually 
taken  and  kept  by  the  police  authorities. 
Consequently,  the  AT  judicial  authorities  are 
in  general  not  aware  of  the  fact  that  such 
material exists. 

6  -  To  take  the  necessary  steps  to  complete  the 
process of converting the existing SIS alerts based on 
International Arrest Warrants into SIS alerts based on 
EAWs (See 7.2.2.4). 

From the beginning of 2008 EAWs have been 
issued  for  all  existing  international  arrest 
warrant alerts. 

7-  To  amend  the  implementing  law  so  that  it 
conforms  to  the  Framework  Decision  as  regards  the 
scope of application of the EAW in conviction cases 
(see 7.3.1.1). 

its 

(AT’s legislation required not only that the sentence be for 
at  least  4  months  but  simultaneously  that  the  related 
offence  be  punishable  by  at  least  12  months.  AT  has 
changed 
legislation  as  from  1-1-2008  on.  The 
requirement that that the related offence be punishable by 
at  least  12  months  has  been  deleted.  However,  the 
requirement  that  a  minimum  of  4  months  still  has  to  be 
executed  remains.  Several  custodial  sentences  or  their 
remaining terms requiring execution shall be added up) 

) 

We do believe that the AT implementation of 
Art.  2  para.  1  of  the  FD  is  in  line  with  the 
spirit of the FD on the EAW as in our view it 
would  be  disproportionate  to  grant  surrender 
of  a  person  if,  taking  into  account  the  time 
spent in pre-trial detention as well as the time 
of  the  surrender  proceedings,  the  sentence  to 
be served would be less than 4 months. 

In this context, it should be mentioned that it 
is  currently  being  discussed  at  EU-level  how 
the  well 
acknowledged 
proportionality  principle  could  best  be 
integrated into the FD on the EAW.  

known 

and 

8 - To amend the legislation regarding the surrender 
of Austrian nationals so that, as from 1 January 2009, 
the  same  grounds  for  refusal  as  for  non-Austrian 
nationals  apply,  with  the  only  specialties  of  Article 
4(6) and Article 5(3) of the Framework Decision (see 
7.3.1.6). 

(Relating to EAWs against Austrian nationals on the basis 
of a conviction, the dual criminality requirement related to 
listed  offences  has  come  to  an  end  from  1-1-2009  on. 
However  the  execution  of  an  EAW  against  an  Austrian 
national  is  inadmissible  when  the  acts  are  subject  to  the 

In  the  case  of  Wolzenburg,  the  ECJ  decided 
that  a 
justified  discrimination  between 
nationals and non-nationals is acceptable. We 
are of the opinion that the fact that in case of 
Austrian 
jurisdiction  Austrian  nationals 
cannot  be  surrendered  but  will  be  prosecuted 
in  Austria,  whereas  the  surrender  of  non-
nationals  is  admissible,  is  such  a  justified 
discrimination  because  of  the  close  ties  of 
Austrian nationals to Austria which in general 
do not exist regarding non-nationals. 

EN 

36 

   EN 

 
 
 
jurisdiction of Austrian criminal law) 

(All  optional  grounds  are  implemented  as  mandatory 
grounds for refusal for Austrian nationals). 

The  question  whether  the  grounds  for  refusal 
contained  in  the  FD  on  the  EAW  can  be 
implemented  as  mandatory  grounds 
for 
refusal is controversial. So far, no decision of 
the  EJC  has  been  taken  with  regard  to  that 
question. 

9  -  To  amend  the  legislation  in  order  to  abolish,  in 
EAW  procedures,  any  possibility  of  verification 
based on suspicion (see 7.3.1.5). 

10  -  To  amend  the  implementing  legislation,  so  that 
once the requested person has been surrendered, any 
assessment of new facts that might have an impact on 
the decision to surrender is referred to the authorities 
of the issuing Member State (see 7.3.1.7). 

11  -  To  amend  the  legislation  so  that  the  time-limit 
for  the  foreign  judicial  authority  to  whom  the 
surrender  is  offered  to  issue  an  EAW,  and  that 
imposed on the Austrian judicial authorities to decide 
on  surrender  in  standard  EAW  procedures,  are 
consistent (see 7.3.1.8). 

in 

surrender 

extradition  or 

According  to  the  relevant  AT  legislation,  a 
verification of the suspicion is, in general, not 
surrender 
admissible 
proceedings.  However, 
(or 
extradition)  cannot  be  granted  if  evidence  is 
available  or  offered  by  the  accused  which 
dispels  the  suspicion  against  him  or  her 
immediately. This is stated in Section 19 para. 
1 EU-JZG (by reference to Section 33 para. 2 
of the Austrian Extradition and Mutual Legal 
Assistance Act; ARHG).  

A  re-opening  of  the  surrender  proceedings  is 
possible  if  there  are  new  facts  which  could 
lead to the necessity of changing the surrender 
decision.  Such  a  decision  on  changing  the 
surrender  decision  can  only  be  taken  by  the 
competent  authorities  of  the  executing  State 
and  not  by  the  competent  authorities  of  the 
issuing  State  which  have  no  competence 
whatsoever  regarding 
the 
surrender  decision.  Consequently,  we  see  no 
reason  for  amending  the  AT  implementing 
legislation in this regard. 

taking  of 

the 

At the outset, it should be emphasized that no 
provision concerning the offer of surrender to 
a foreign judicial authority is contained in the 
FD on the EAW. Consequently, we are of the 
that  AT  cannot  be  criticized  for 
view 
providing  such  an  offer.  Furthermore,  the 
time-limit to be given for the transmission of 
an  EAW  by  the  competent  foreign  judicial 
time-limit  for 
authority  depends  on 
provisional  detention. 
something 
is 
completely different as the time-limit imposed 
on  Austrian  judicial  authorities  to  decide  on 
in  standard  EAW-proceedings, 
surrender 
which  depends  on  the  relevant  provisions  of 
the FD on the EAW. Consequently, we do not 
see  any  need  for  consistency  between  those 
time-limits. 

the 
It 

EN 

37 

   EN 

 
 
 
to 

12 - To take the necessary measures to ensure that the 
decision  not 
launch  a  surrender  procedure 
following  the  arrest  of  the  requested  person  is 
communicated  directly 
judicial 
to 
authority,  explaining  the  reasons  for  such  a  decision 
(see 7.3.1.2). 

issuing 

the 

13  -  To  consider  amending  the  legislation  so  that  in 
all  EAW  procedures,  even  for  less  serious  crimes, 
detention pending surrender may be ordered in view 
the  case  and  giving 
of 
the  circumstances  of 
the 
to 
appropriate  consideration 
requested  person  absconded 
issuing 
Member State (see 7.3.1.3). 

the  fact 
from 

that 

the 

14 - To take the necessary measures to ensure that, at 
the  time  of  the  apprehension,  the  person  arrested  on 
the basis of an EAW is informed, in a language that 
he understands, of the reasons for the arrest (see 6)1. 

the  FD  on 

In accordance with the AT declaration to Art. 
32  of 
the  EAW,  surrender 
proceedings  are  not  being  initiated  if  the 
offences underlying an EAW were committed 
before 7 August 2002. As that declaration has 
been published in the OJ, the other MS should 
be aware of it and of its consequences.  

We are of the view that such an amendment is 
not  feasible  with  regard 
to  very  minor 
offences as in such cases ordering of detention 
pending surrender would not be proportionate. 

to 

the  new  Code  of  Criminal 
Pursuant 
Procedure, in force since 1 January 2008, the 
person  arrested  on  the  basis  of  an  EAW  has 
the right to be informed on the grounds of the 
arrest at the first hearing by the police, which 
has  to  be  conducted  with  the  help  of  an 
interpreter if necessary. The Austrian Federal 
Ministry of Justice, together with the Austrian 
an 
Ministry 
"Information  Sheet  for  Detainees"  to  be 
handed  out  by  Police  when  apprehending  a 
person, available in 33 languages. 

Interior, 

issued 

has 

of 

General information 

General Council recommendations 2009 

Language flexibility 

On the basis of reciprocity (CZ and SK) 

Time limit for translated EAW 

Provisional arrest  

Proportionality test  

Is  it  possible  for  a  sought  person  to  get  (state  paid) 
legal  assistance  provided  by  X  in  the  following 
situations: 

(1)  in  X  for  the  underlying  X  criminal  proceedings 
when  he  is  arrested  in  another  Member  State  on  the 

Yes, 48 hours 

Yes,  however,  no  or  uniform  practice  (active 
EAW  entries  around  10%  of  active  domestic 
arrest warrant entries) 

EN 

38 

   EN 

 
 
 
 
 
 
 
basis of a X EAW and 

(2)  in  another  Member  State,  for  the  underlying 
criminal proceedings when he is arrested in X on the 
basis of an EAW of the other state? 

(X = state in the head of the relevant column) 

Accessory surrender 

Yes  

Flagging 

Sirene  office,  where 
after 
consultation  with  the  central  authority  (that 
includes  staff  from  the  prosecuting  office, 
MoJ and Ministry for the Interior) 

appropriate 

Competent authority for Art 111 Schengen requests 

Data Protection Commission 

Seizure and handover of property 

Yes 

Principle of direct contacts 

Mainly via Sirene /Interpol 

Integration of recital 12 in implementation law 

Yes (also 13) 

Dual criminality abolished for attempt and complicity  Yes  

4 months requirement  

4 months to be executed 

See above (recommendation 7) 

Regime for transfer back 

1983 CoE convention  

24/7 rota? 

Yes  

In case of refusal of surrender for the execution of a 
sentence on the ground that the sought person has the 
nationality, or is a resident of the executing State, is 
execution  of  that  sentence  possible  in  the  executing 
state when there is no dual criminality? 

Yes, see above recommendation 8 

Age of criminal liability  

Statistics 

Website 

14 years 

Yes  

Intranet Federal MoJ. 

Jurisdiction ECJ 

Yes 

EN 

39 

   EN 

 
 
 
 
 
 
Case law/preliminary questions  

Regarding  the  speciality  principle,  the  AT  'Oberste  Gerichtshof'  (7-11-2007,  GZ  13Os  109/07i)  has 
stated that revocation of a conditional sentence is possible, even if the specific underlying offence was 
not contained in the EAW on which the person was surrendered to AT. 

COM Implementation Report of 2007 

Art  17.7  -  No  legislation  relating  to  reporting 
breach of time limits to Eurojust 

Art 18.1 (b) - Temporary transfer possible? 

for 

request 

legal  assistance 

(On the basis of domestic legislation and the 2000 EU 
MLA  convention  a judicial  authority  will  decide on  a 
temporary 
mutual 
surrender,  without  any  interference  of  the  Ministry  of 
Justice.  Although  this  procedure  is  based  on  mutual 
recognition,  it  is  not  on  the  basis  of  the  EAW  FD. 
Temporary  surrender  cannot  be  asked  on  the  basis  of 
the EAW, but has to be requested by means of a MLA 
request.  The  strict  time  limits  for  the  execution  of  an 
EAW do not apply to MLA requests)  

We are of the view that the Austrian approach is 
not in contradiction with the obligations resulting 
from  the  FD  on  the  EAW,  as  there  is  the 
possibility  of  a  temporary  transfer  of  the  person 
concerned as provided for in Article 18 para. 1 b 
of the FD on the EAW.  

EN 

40 

   EN 

 
 
 
 
 
 
2. BELGIUM 

Recommendations EAW report 19-3-2007 

(16454/2/06 REV 2 CRIMORG 196) 

Follow  up  report  23  October  2009  and  30 
July 2010 

New Developments 

- No amendments to the law since 1-4-2007. 

1  -  Establish  a  reliable  statistical  method  of  storing 
European  Arrest  Warrants 
issued,  executed  or 
rejected by the Belgian authorities (see 7.2.1.1.). 

Work onging 

2 - In this context, pursue the aim of developing the 
PHENIX system or establishing a database accessible 
to  all  courts  concerned  by  the  European  Arrest 
Warrant in order to share the main information items 
relating to, inter alia, current investigations and arrest 
warrants already issued. Ensure that case law on the 
European Arrest Warrant is circulated by means of a 
computer system accessible to all judicial authorities. 
The  introduction  of  the  internet  system  as  suggested 
by  the  Federal  Prosecutor  would  ensure  that  all 
information is disseminated (see 7.2.1.2). 

Work ongoing 

the 

dissemination 

Information  on  case  law  is  already  ensured 
through 
of  MLA 
newsletters  (MEMOs)  within  the  recently 
created  national  network  of  experts  on 
international  cooperation.  Those  notes  are 
available  on 
the  public 
prosecution. 

intranet  of 

the 

3 - Consider the possibility of pursuing a reasonably 
flexible  policy  of  executing  sentences  which  would 
take  account  of  the  thresholds  referred  to  by  the 
Framework  Decision,  to  ensure  consistent  treatment 
within the European Union (see 7.2.1.3). 

Taking into account the capacities available at 
national  level  for  the  execution  of  sentences 
Belgium has no intention to modify its policy 
in this regard for the time being 

to 

courts 

available 

4  -  Make  maximum  use  of  the  potential  of  the 
instruments 
facilitate 
to 
application  of  the  European  Arrest  Warrant,  mainly 
by reference to the ministerial circular containing the 
directives to be followed in completing the form and 
by  organising 
reference 
magistrates  and  of  the  multidisciplinary  working 
group (see 7.2.2.1). 

regular  meetings  of 

- regular coordinating meetings of the federal 
MoJ, prosecutors and police. 

-  regular  MLA  newsletter  for  prosecutors 
including  advices  and  case  law  on  EAW  (in 
Dutch).  

5 - Ensure that Belgian law on the EAW conforms to 
the  Framework  Decision  in  cases  where  the  law  re-
establishes  verification  of  double  criminality  for 
certain offences listed in Article 2 of the Framework 
Decision (see 7.3.1.1.). 

The  limitation  of  the  list  of  offences  with 
regard to euthanasia and abortion was made at 
the  time  of  the  legislative  adoption  of  the 
Belgian implementing legislation. There is no 
political will to change it. 

Under consideration 

6 - Amend the provisions of Article 13 of the Belgian 
law  transposing  the  EAW  to  make  consent  to 
surrender  and  renunciation  of  the  speciality  rule  the 
subject  of  two  separate  questions  requiring  two 
separate replies, so that consent to surrender does not 
necessarily involve renunciation of entitlement to the 
speciality  rule.  Consider  the  introduction  of  a  fixed 
period  for  revocation  both  of  consent  to  surrender 
and  of  renunciation  of  the  speciality  rule  (see 

EN 

41 

   EN 

 
7.3.1.2). 

7 - Be satisfied as far as possible with the information 
contained in the European Arrest Warrant and avoid 
a  proliferation  of  requests  for  additional  information 
legal 
concerning  description  of 
qualification  by  different  authorities  and  at  various 
stages of the procedure (see 7.3.1.3). 

the  acts  and 

8 - Clarify the criteria to be taken into consideration 
by  the  court  in  taking  a  decision  on  allowing  the 
wanted  person  to  remain  at  liberty  (possibly  by 
requiring  him 
to  comply  with  one  or  more 
conditions)  or  placing  him  in  custody  within  the 
framework of the EAW procedure (see 7.3.1.4). 

9  -  Clarify  or  supplement  the  internal  instrument  by 
identifying the legal basis on which the person whose 
surrender  has  been  granted  but  who  has  been  left  at 
liberty  may  be  imprisoned  the  day  before  surrender 
(see 7.3.1.5). 

10  -  Simplify  the  procedure  for  return  of  nationals 
and  ensure  that  the  principles  set  out  in  Article  5(3) 
of 
in 
the  Framework  Decision  are  observed, 
particular  by  eliminating  the  prior  request  of  the 
person concerned (see 7.3.1.6). 

This  recommendation  is  in  line  with  the 
position  of  Belgian  authorities  on  this  point. 
Special attention to this recommendation will 
be given during the training of magistrates. 

Under consideration 

Under consideration 

Under consideration 

11 - Clarify the scope of the European Arrest Warrant 
for the purposes of arrest (see 7.3.1.7). 

Under consideration 

12 - Encourage and develop communications with the 
issuing  State  throughout  the  execution  procedure  in 
order  to  optimise  coordination  at  all  stages  (see 
7.3.1.8). 

Special attention to this recommendation will 
be given during training of magistrates. 

13  -  Consider  the  possibility  of  integrating  further 
surrender  into  national  legislation  on  the  European 
Arrest Warrant (see 7.3.1.9). 

Under consideration 

14 - Re-examine transposition into national law with 
regard  to  the  time-limits  referred  to  in  Article  17(7) 
of the Framework Decision (see 7.3.1.10). 

General information 

General Council recommendations 2009 

in 

the 

The  delays  set  up 
implementing 
legislation are in conformity with the Belgian 
procedural law. Overrunning of the time limit 
fixed  by  the  framework  decision  may  only 
occur in exceptional circumstances 

EN 

42 

   EN 

 
 
 
 
Language flexibility 

FR, NL, DE (official national languages) 

Time limit for translated EAW 

10 days time limit for translation 

Provisional arrest  

Proportionality test  

Yes,  24  hours  (10  days  time  limit  for 
translation)  

Yes  The  principle  of  opportunity  of 
prosecution is a general fundamental principle 
of Belgian criminal procedural law 

Is  it  possible  for  a  sought  person  to  get  (state  paid) 
legal  assistance  provided  by  X  in  the  following 
situations: 

(1) Yes 

(2) Yes 

(1)  in  X  for  the  underlying  X  criminal  proceedings 
when  he  is  arrested  in  another  Member  State  on  the 
basis of a X EAW and 

(2)  in  another  Member  State,  for  the  underlying 
criminal proceedings when he is arrested in X on the 
basis of an EAW of the other state? 

(X = state in the head of the relevant column) 

Accessory surrender 

Flagging 

No 

Sirene bureau  

Competent authority for Art. 111 Schengen requests 

Belgian  Privacy  Commission  or  Belgian 
Court 

Seizure and handover of property 

Principle of direct contacts 

Integration of recital 12 in implementation law 

Yes  

Yes  

Yes 

Dual criminality abolished for attempt and complicity  Yes 

4 months requirement  

Yes 

Regime for transfer back 

24/7 rota? 

In case of refusal of surrender for the execution of a 
sentence on the ground that the sought person has the 
nationality, or is a resident of the executing State, is 
execution  of  that  sentence  possible  in  the  executing 
state when there is no dual criminality? 

Domestic 
convention 

law  based  on 

the  1983  CoE 

Yes 

No  

impossibility 

In  case  of 
the 
sentence  in  Belgium,  the  surrender  will  be 
authorised. In our view, there is no possibility 
to apply a ground for refusal in that case. 

to  execute 

EN 

43 

   EN 

 
 
Age of criminal liability  

16, exceptions for 16-18 yrs 

Statistics 

Website 

No 

Yes  (Intranet  site  of  the  public  prosecution 
OMPTRANET) 

Jurisdiction ECJ 

Yes 

Case law/preliminary questions  

- ECJ C-303/05 – Advocaten van de wereld- Judgment 3 May 2007 

- Preliminary question addressed to the ECJ on 24-7-2009 (C-306/09) 

COM Implementation Report of 2007 

Art  2  FD:  BE  legislation  provides  that  abortion 
and  euthanasia  are  not  covered  by  “murder  or 
grievous  bodily  harm”.  This  is  contrary  to  the 
Framework  Decision  since  it  is  the  law  of  the 
issuing  state  and  not  the  executing  state  which 
determines whether an offence is within the list 

Art  17.3  FD:  BE  legislation  provides  that  the 
initial decision on surrender must be taken within 
15  days  of  arrest.  However,  there  are  two 
possibilities  of  appeal,  which  will,  if  granted, 
mean that the deadline of 60 days cannot be met 
(with appeals, the deadline is 64 days). Although 
this  is  still  less  than  the  full  90  day  limit,  the 
opinion of  the  Belgian  “Conseil  d’Etat”  was  that 
the  use  of  appeal  proceedings  could  not  be 
regarded as “specific cases” in line with Art 7(4). 

EN 

44 

   EN 

 
 
 
 
 
 
 
3. BULGARIA 

Recommendations  EAW  report  27-4-2009  (visit 
October 2008) 

Follow up report 3-8-09 

(8265/09 CRIMORG 52) 

New Developments 

The  implementing  legislation,  entitled  the 
Law  on  Extradition  and  European  Arrest 
Warrant was amended with effect from 6 June 
2008.  

of 

the 

to 
Parts 
consequences  for  the  EAW  procedures  in 
preparation of the Schengen regime. 

amendments 

relate 

the 

notify 

A  circular  has  been  issued  to  all  courts  to 
systematically 
International 
Operative  Police  Cooperation  Directorate  of 
the  Ministry  of  Interior  (IOPCD)  when 
issuing  a  EAW.  All  courts  are  advised  to 
consult  IOPCD  on  the  existence  of  other 
EAWs  concerning  the  same  person  before 
issuing.  

NB: According to the statement made by BG 
in  the  context  of  the  implementation  of  the 
EAW,  the  MoJ  is  designated  as  the  central 
authority to assist the judicial authorities 

1.-  Take  measures  to  ensure  systematic  coordination 
and  flow  of  information  among  all  the  authorities 
involved in the processing of EAWs (see 7.1.4). 

2.-  Set  up  appropriate  mechanisms  for  monitoring 
EAW proceedings (see 7.1.5) 

3.- Ensure the availability of comprehensive statistics 
(see 7.1.5). 

4.-  Consider  making  a  declaration  according  to 
Article 35(1) TEU, recognising the jurisdiction of the 
European Court of Justice to give preliminary rulings 
as regards police and judicial co-operation in criminal 
matters (see 2). 

5.-  Introduce  the  possibility  for  accessory  surrender 
in national practice/legislation (see 3.14 and 4.16). 

6.- Ensure that the Fiche Française is available on the 
Council's website (see 7.3.4). 

7.-  Consider  providing 
judges,  prosecutors  and 
judicial staff with language training free of costs (see 
7.1.8). 

8.-  Consider  developing  common  criteria  regarding 
proportionality  to  guide  judicial  authorities  when 
issuing an EAW (see 7.2.1). 

9.-  Ensure  that  the  Interpol  NCB  is  informed  of  all  See 1. and 2.  

EN 

45 

   EN 

 
 
 
 
 
 
 
EAWs issued by the Bulgarian authorities (see 7.1.4). 

10.- Ensure the effective application of Article 49(2) 
of the implementing law, regarding the obligation to 
report delays to Eurojust (see 4.7). 

11.-  Consider  amending  the  implementing  law  in 
order that the court is informed and provided with the 
relevant  documents  as  soon  as  possible  after  the 
arrest of the person concerned (see 7.1.4 and 7.3.1). 

12.- Reconsider the role of the prosecutor prior to the 
initiation of proceedings by the court, in particular as 
request  additional 
regards 
information  and  the  advisability  of  detention  (see 
7.1.4 and 7.3.1). 

the  possibility 

to 

13.-  Set  up  appropriate  mechanisms 
harmonization of court practice (see 7.1.6). 

for 

the 

14.- Consider developing a practise of including one 
or  more  specialised  judges  in  panels  dealing  with 
EAW cases (see 7.1.6). 

15.- Consider introducing the possibility of lodging a 
complaint against 24+72-hour detention orders and a 
procedure for handling such complaints within a very 
short period (see 7.3.2). 

General information  

General Council recommendations 2009 

Language flexibility 

Time limit for translated EAW 

No 

72 hours 

Provisional arrest  

Proportionality test  

Yes, 24 hrs (amendment 6 June 2008) 

Not  explicitly  in  law  or  guidelines;  EAWs  are 
prosecuting 
scarcely 
offenses 
issued 
punishable  with 
than  5  years  of 
imprisonment. 

for 
less 

Is  it  possible  for  a  sought  person  to  get  (state 
paid)  legal  assistance  provided  by  X  in  the 
following situations: 

for 

in  X 

(1) 
the  underlying  X  criminal 
proceedings  when  he  is  arrested  in  another 
Member State on the basis of a X EAW and 

(2)  in  another  Member  State,  for  the  underlying 

EN 

46 

   EN 

 
 
 
 
 
 
 
 
 
 
criminal proceedings when he is arrested in X on 
the basis of an EAW of the other state? 

(X = state in the head of the relevant column) 

Accessory surrender 

Flagging 

Competent  authority  for  Art  111  Schengen 
requests 

Seizure and handover of property 

Principle of direct contacts 

Not possible (issuing); For executing, no specific 
provision exists, however, in practice case by case 
approach  

- 

- 

Yes  

Yes  

Integration of recital 12 in implementation law 

No  

Dual  criminality  abolished  for  attempt  and 
complicity 

4 months requirement  

Yes  

Regime for transfer back 

1983 CoE convention 

24/7 rota? 

Yes 

In case of refusal of surrender for the execution of 
a  sentence  on  the  ground  that  the  sought  person 
has  the  nationality,  or  is  a  resident  of  the 
executing  State,  is  execution  of  that  sentence 
possible  in  the  executing  state  when  there  is  no 
dual criminality? 

Age of criminal liability  

Statistics  

Website  

No  

National institute of justice. 

Handbook and vademecum: 

http://www.nij.bg/Articles/Articles.aspx?lang=bg-
BG&pageid=551 

Domestic and ECJ case law: 

http://www.nij.bg/Articles/Articles.aspx?lang=bg-
BG&pageid=553 

Jurisdiction ECJ 

No  

EN 

47 

   EN 

 
 
 
 
 
Case law/preliminary questions: -  

COM Implementation Report of 2007 

BG  requires  the  Article  5(2)  guarantee.  Such  a 
review  may  only  be  done  ex  officio,  and  not  on 
request  for  the  first  20  years  of  serving  a 
sentence.  This  appears  to  be  contrary  to  the 
provision  of  Article  5(2)  of  the  Framework 
Decision. 

EN 

48 

   EN 

 
 
 
 
4. CYPRUS 

Recommendations EAW report 13-11-2007 

Follow up report 31-8-09 

(14135/2/07 REV 2 CRIMORG 155) 

New Developments 

1 - To amend the Constitution in order to abolish the 
limitation to the surrender of nationals (See 7.2.).  

NB: Art 32 of the FD does not allow the exclusion of 
acts committed after 7 August 2002. CY legislation is 
still not in conformity with the FD on this point 

2  -  To  ensure  that  the  police  investigator  is  fully 
informed  of  the  criteria  applied  by  the  Attorney 
General to authorise the issuing of an EAW, possibly 
through  written  guidelines  of  the  Attorney  General. 
(See 7.3.1.1.). 

3  -  To  ensure  simplification  of  the  procedures,  for 
example  by  reconsidering  the  need  for  the  police 
investigator  to  go  repeatedly  before  the  Attorney 
General before presenting a draft EAW to the District 
Judge (See 7.3.1.1.). 

4 - To initiate discussions at national level, especially 
among the judiciary, on the best way to allow a more 
active  role  in  practice  for  the  District  Judge  for 
example  with  regards  to  additional  requests  for 
information  sent  by  the  executing  authority  (See 
7.3.1.2.). 

5 - To consider setting up a working group at national 
level,  composed  of  representatives  of  all  authorities 
involved  (including  the  Attorney  General,  the  CA, 
the  Police  and  the  Judges),  which  would  meet 
regularly in order to discuss general EAW issues and 
which  could  draft  general  guidelines  on  EAW 
procedures (See 7.3.1.4.). 

increase  standardisation  of  procedures, 
6  -  To 
through  appropriate  training  as  well  as  specific 
guidelines, among the lawyers in the section dealing 
with  the  EAW  and  extradition  at  the  Office  of  the 
Attorney General (See 7.3.1.5.). 

-  New,  comprehensive  bill  expected  to  be 
submitted  to  the  parliament  in  September 
2009 

From case law of the Supreme Court follows 
that – on the basis of the amended constitution 
-  surrender  of  Cypriot  nationals  for  offences 
committed after 1-5-04 is lawful. 

-  To  increase  standardisation  of  procedures, 
new  circulars  with  guidelines  have  been 
drafted. 

-  To  increase  standardisation  of  procedures, 
new  circulars  with  guidelines  have  been 
drafted 

7  -  To increase  training  measures  focusing  on  EAW 
procedures,  especially  among  the  judiciary  (See 
7.3.1.6.) 

A  number  of  seminars  on  applying  the  EAW 
law  have  been  organised  for  the  authorities 
involved.  

EN 

49 

   EN 

 
 
 
 
 
 
 
8  -  To  enhance  the  coordination  offered  by  Eurojust 
especially  where  the  cooperation  with  a  specific 
Member State proves to be difficult, and to consider 
the opportunity of sending to the national member of 
Eurojust a copy of all EAWs issued by Cyprus (See 
7.3.1.7.). 

9  -  To  consider  limiting  the  role  of  the  CA  to  the 
administrative  receipt  of  EAWs  and 
the 
checking of EAWs to the executing judicial authority 
(See 7.4.1.1.). 

leave 

10 - To amend the legislation in so far as it requires a 
certificate issued by the CA and, in the meantime, to 
consider  whether  such  a  requirement  may  be 
abolished in practice based on the fact that it does not 
comply with EU legislation (See 7.4.1.1.). 

11  -  To  enable  all  law  enforcement  authorities  to 
access 
(See 
the  STOP-LIST  database  directly 
7.4.1.2.). 

12  -  To  merge  the  Sirene  Bureau  with  the  Europol 
National Unit and Interpol Nicosia (See 7.4.1.4.). 

13 - In the context of the future connection of Cyprus 
to  the  SIS,  to  amend  the  EAW  Law  to  insert  a 
provision indicating that the judicial authority which 
has  refused  the  execution  of  an  EAW  may  require 
that  a  flag  be  added  regarding  the  relevant  SIS  alert 
in  order  to  prevent  the  arrest  of  the  person  for  the 
same acts (See 7.4.1.4.). 

14  -  To  ensure  that  the  Sirene  Bureau,  for  tasks 
related to the EAW, especially regarding the issue of 
flagging,  is  given  the  support  of  legal  advice  by  an 
independent  authority,  either  a  judicial  authority  or 
the Attorney General (See 7.4.1.4.). 

15  -  To  create  a  clear  legal  basis  allowing  for  the 
immediate  detention  of  a  person  mentioned  in  the 
STOP-LIST on the basis of an EAW (See 7.4.1.5.). 

16 - To amend the EAW Law in so far as it requires a 
domestic arrest warrant (See 7.3.1.3.). 

17 - To enhance the coordination offered by Eurojust 
especially  in  cases  of  competing  EAWs  and  to  raise 
awareness among the judiciary regarding the role and 
nature of Eurojust (See 7.4.1.6.). 

18 - To finalise the discussion, currently taking place 

EN 

50 

   EN 

 
 
 
 
 
 
 
 
 
 
 
 
 
in  Parliament,  of  the  legislation  amending  the  EAW 
Law  and  to  consider  adding  new  amendments 
suggested in this report (See 7.4.1.7.). 

19 - To amend the EAW Law to make it clear that the 
Police  must  bring  the  arrested  person  before  the 
District  Judge  as  soon  as  possible  and  in  any  case 
within 24 hours (See 7.4.1.8.). 

20 - To consider making the declaration mentioned in 
Article  35(2)  of  the  EU  Treaty  enabling  Cypriot 
courts  to  submit  a  request  for  preliminary  ruling  to 
the  ECJ  regarding  the  interpretation  of  instruments 
adopted  in  the  framework  of  Title  VI  of  the  EU 
Treaty, 
(See 
7.4.1.9.). 

including  Framework  Decisions 

21  -  To  submit  to  the  General  Secretariat  of  the 
Council 
the 
the  "fiches  françaises"  relating 
practical implementation of the EAW in Cyprus (See 
7.4.1.10.). 

to 

to 

ruling 

the  ECJ 

The courts law has been amended as to enable 
national  courts  to  submit  a  request  for  a 
preliminary 
(law 
119(l)/2008.  On  20  July  2009  Cyprus 
the 
acknowledged 
European Court of Justice to give preliminary 
rulings  as  it  is  stipulated  by  Article  35, 
paragraph  1  of  the  Treaty  on  the  European 
Union. 

jurisdiction 

the 

of 

General information  

General Council recommendations 2009 

Language flexibility 

Greek, Turkish, English. 

No (will be introduced with Schengen) 

Yes 

Time limit for translated EAW 

Provisional arrest  

Proportionality test  

Is  it  possible  for  a  sought  person  to  get  (state  paid) 
legal  assistance  provided  by  X  in  the  following 
situations: 

(1)  in  X  for  the  underlying  X  criminal  proceedings 
when  he  is  arrested  in  another  Member  State  on  the 
basis of a X EAW and 

(2)  in  another  Member  State,  for  the  underlying 
criminal proceedings when he is arrested in X on the 
basis of an EAW of the other state? 

(X = state in the head of the relevant column) 

Accessory surrender 

Flagging 

EN 

Not allowed 

- 

51 

   EN 

 
 
 
 
 
 
 
Competent authority for Art.111 Schengen requests 

- 

Seizure and handover of property 

Yes  

Principle of direct contacts 

All contacts via central authority ((MoJ) 

Integration of recital 12 in implementation law 

Yes, and 13 

Dual criminality abolished for attempt and complicity  Yes  

4 months requirement  

Yes  

Regime for transfer back 

1983CoE convention 

24/7 rota? 

In case of refusal of surrender for the execution of a 
sentence on the ground that the sought person has the 
nationality, or is a resident of the executing State, is 
execution  of  that  sentence  possible  in  the  executing 
state when there is no dual criminality? 

Age of criminal liability  

14 yrs 

Statistics  

Jurisdiction ECJ 

2007 and 2008: yes 

Yes, since 20-7-09 

At  the  time  of  the  4th  round  evaluation  report  a 
draft  amendment  had  was  intended  to  delete  the 
reference  

Case law/preliminary questions: - 

COM Implementation Report of 2007 

CY  has  transposed  the  text  of  recitals  12  and  13 
into  the  legislation  in  such  a  way  that  it  goes 
beyond  the  Framework  Decision  and  therefore 
creates the risk that a EAW will be refused on the 
basis of grounds not envisaged in the Framework 
Decision (activity for the cause of freedom). 

Whilst  CY  has  indicated  that  the  Office  of  the 
Attorney  General  is  neither  a  political,  judicial 
nor  an  administrative  authority,  the  Commission 
is concerned by the role it plays in the issuing of 
an  EAW.  Indeed,  for  a  EAW  to  be  issued  in  a 
prosecution  case,  the  consent  of  the  Attorney 
General  must  be  given  in  writing  prior  to  the 
EAW  being  produced  before  the  competent 
judicial  authority.  The  Commission  has  not  been 
informed of what would happen to a EAW if the 
consent by the Attorney General is refused and as 
a  consequence  the  Commission  fears  that  the 
Attorney  General,  in  practice,  will  endorse  the 
role of a judicial authority. 

EN 

52 

   EN 

 
 
 
 
 
CY seem to send back an incomplete form and to 
require almost systematically that a new EAW is 
issued which cause great difficulties to some MS 
which  cannot  reissue  EAW  and  cause  delays  in 
any event. 

EN 

53 

   EN 

 
 
 
5. CZECH REPUBLIC 

Recommendations EAW report 2-12-2008 

Follow up report 4-8-09 

(15691/2/08 REV 2 CRIMORG 194) 

New developments 

- Law has been amended: 

07-06-07 

10-12-08 

08-01-09  

- CZ entered Schengen 21-12-2007 

The International Judicial Cooperation issue is 
currently  regulated  in  the  Czech  Criminal 
Proceedings  Code  (CCP).  A  working  group, 
which is in charge of preparation of a new Act 
in 
International  Judicial  Cooperation 
on 
Criminal Matters, has been established within 
the  Ministry  of  Justice  (MoJ).  This  Act  is  to 
regulate the matter (including the EAW issue) 
current  Criminal 
the 
separately 
Proceedings  Code.  The  working  group 
consists  from  the  MoJ  representatives,  public 
prosecutors,  judges  and  a  Police  Presidium 
representative. A draft of this Act is currently 
being finalized, so it could be published in the 
beginning  of  2011  when  a  comment 
procedure  within 
the 
Government and the Parliament should begin. 

the  ministries, 

from 

Much  of  the  recommendations  addressed  to 
the  Czech  Republic  in  the  evaluation  report 
should  be  included  in  the  above  mentioned 
Act  on  International  Judicial  Cooperation  in 
Criminal Matters. 

Although  no  cases  have  been  noticed  in 
practice  where  public  prosecutors  or  courts 
would  be  unsure  on  difference  between 
extradition  and  surrender  (EAW)  procedure 
(provisions  of  the  CCP  related  to  extradition 
procedure  are  being  followed  within  the 
surrender  (EAW)  procedure  without  any 
impact  on  EAW  procedure),  the  new  Act  on 
International Judicial Cooperation in Criminal 
Matters,  which  is  currently  being  prepared, 
shall  bring  separate  regulations  of  these  two 
procedures taking into account their specifics. 

1.-  Consider  making  a  clear  distinction  in  the 
domestic 
provisions 
applicable  to  extradition  and  those  applicable  to 
surrender on the basis of an EAW (see 7.1.2). 

legislation 

between 

the 

EN 

54 

   EN 

 
 
to  upgrade 

linguistic 
2.-  Adopt  measures 
capacities  of  judges  and  prosecutors,  as  a  means  to 
enhance 
foreign 
contacts  with 
counterparts (see 7.1.10). 

direct 

their 

the 

3.- Consider amending the legislation with a view to 
simplifying  the  procedure  for  issuing  an  EAW  as  to 
the requirement of personally serving the indictment 
to the person concerned beforehand (see 7.2.1.1). 

4.-  Take  the  necessary  measures  (e.g.  by  setting  up 
appropriate databases) to allow the Czech authorities 
to check the conditions of the surrender, irrespective 
of  whether  the  person  has  been  surrendered  for 
prosecution  or  for  conviction  purposes,  with  a  view 
to respecting the specialty rule (see 7.2.1.3). 

5.-  Amend  the  implementing  legislation  so  that  the 
condition  of  reciprocity  does  not  apply  to  surrender 
of Czech nationals (see 7.3.1.1). 

The  linguistic  courses  for  judges,  public 
prosecutors,  trainees  for  judges  and  public 
prosecutors  are  organised  regularly  by  the 
Judicial  Academy.  The  courses  are  aimed  at 
English, French and German language skills 

A  new  legislation  in  order  to  eliminate  this 
deficiency is being prepared.  

The  measures  are  being  discussed  together 
with the General Directorate of Prison Service 
and  the  Public  Prosecution  Office  in  order  to 
find an appropriate solution. 

to 

This issue is currently being discussed within 
the  working  group  for  preparation  of  a  new 
Act  on  International  Judicial  Cooperation  in 
Criminal Matters. The reciprocity principle is 
considered by the working group to be one of 
the  basic  principles  of 
international 
cooperation. The FD on the EAW is based 
on  mutual  recognition  principle.  With 
regard 
term 
fact, 
„reciprocity“  is  de  facto  synonym  of  the 
term  „mutuality“,  it  can  be  derived,  that 
the  principle  of  mutual  recognition  is 
based  on  reciprocal  procedure  of  the 
Member  States.  Exactly  this  mutuality  / 
reciprocity  is  one  of  the  cornerstones  of 
the  mutual  trust  between  the  Member 
States.  Removal  of  this  principle  has  not 
been resolved yet. 

that 

the 

the 

6.-  Amend  the  implementing  legislation  so  that  no 
limitation  applies  to  surrender  of  Czech  nationals 
based on the date of the offence underlying the EAW 
(see 7.3.1.1). 

This deficiency should be eliminated by a new 
Act  on  International  Judicial  Cooperation  in 
Criminal  Matters,  which  is  currently  being 
prepared.  

(In  2007  4  cases  refusal  to  surrender  of  CZ  national 
for offences committed before 1-11-2004) 

7.-  Consider  rewording  Section  377  of  the  CCP*  in 
conformity  with 
the  Framework  Decision  (see 
7.3.1.2). 

(*(a)violation of CZ constitution or any provision of 
CZ  law  that  applies  unconditionally  and  (b)  if  it 
would  damage  some  other  significant  protected 
interest of CZ)) 

This  issue  has  been  discussed  within  the 
working  group  for  preparation  of  a  new  Act 
in 
International  Judicial  Cooperation 
on 
Criminal  Matters.  According 
the 
recommendations of the evaluation report, the 
rewording of Section 377 of the CCP has been 
thoroughly  considered.  Section  377  of  the 
CCP  has  to  be  interpreted  with  regard  to  the 

to 

EN 

55 

   EN 

 
 
 
 
Art. 1 par. 2 of the Czech Constitution, which 
provides that: „ The Czech Republic is bound 
by obligations resulting from the international 
law.“  After  detailed  and  comprehensive 
discussion, the working group decided that the 
Section 377 of the CCP should be remained.  

8.-  Amend  the  implementing  legislation  in  order  to 
bring  Section  409(3)  of  the  CCP,  namely  as  regards 
paragraph (h), into line with the Framework Decision 
(see 7.3.1.3). 

This deficiency should be eliminated by a new 
Act  on  International  Judicial  Cooperation  in 
Criminal  Matters,  which  is  currently  being 
prepared.  

9.-  Consider  amending  the  legislation  in  order  to 
simplify/speed up the procedure to be followed when 
the  requested  person  consents  to  surrender  (see 
7.3.1.4). 

This deficiency should be eliminated by a new 
Act  on  International  Judicial  Cooperation  in 
Criminal  Matters,  which  is  currently  being 
prepared.  

10.- Consider amending the implementing legislation 
in  order  to  introduce  clear  strict  time  limits  for  the 
public  prosecutor's  preliminary  investigation  and 
court  proceedings  (including  proceedings  before  the 
appeal  court  and  the  Constitutional  Court),  thereby 
ensuring  that  the  time  limits  prescribed  in  the 
Framework Decision are met (see 7.3.1.4). 

11.-  Take  the  necessary  measures  to  ensure  that  the 
possibility of  extending  the  time  limit  for  a  decision 
on  surrender  envisaged  in  Article  17(4)  of  the 
Framework  Decision  is  used  only  as  an  exception 
(see 7.3.1.4). 

This issue is currently being discussed within 
the  working  group  for  preparation  of  a  new 
Act  on  International  Judicial  Cooperation  in 
Criminal Matters.  

Time-limits  for  decision  on  surrender  are  to 
be  regulated  by  the  new  Act  on  International 
Judicial Cooperation in Criminal Matters.  

12.-  Amend  the  implementing  legislation  so  that  all 
grounds  for  non-execution  of  EAWs  regarded  as 
mandatory in the Framework Decision are examined 
in summary transfer proceedings (see 7.3.1.5). 

This deficiency should be eliminated by a new 
Act  on  International  Judicial  Cooperation  in 
Criminal  Matters,  which  is  currently  being 
prepared.  

13.-  Revise  the  current  practice  of  requiring  the 
original  of  the  EAW  for  the  court  decision  on 
surrender,  and  accept  for  that  purpose  a  copy  of  the 
EAW  sent  by  any  secure  means  able  to  produce 
written 
allowing 
authenticity  to  be  established  (e.g.  scanned  copies 
sent by verifiable e-mail) (see 7.3.1.7). 

conditions 

records 

under 

This issue is currently being discussed within 
the  working  group  for  preparation  of  a  new 
Act  on  International  Judicial  Cooperation  in 
Criminal Matters.  

Prevention  of  double  prosecution:  although  art  4(2) 
of the FD has been transposed as a mandatory ground 
for refusal, CZ authorities will seek bilaterally or via 
Eurojust for a solution. The CZ Constitutional Court 
decided  that  the  relevant  article  in  CZ  law  does  not 
prevent a EAW from being executed when the crime 
has been committed partly abroad an partly in the CZ 
Republic, and the issuing state is in a better position 
to prosecute (PL.ÚS 66/04) 

1  §  110  of  Decision  of  the  Constitutional 
Court No. Pl. US 66/04, of 3 May 2006 reads: 

"…When  a  crime  has  been  committed  partly 
abroad  and  partly  in  the  Czech  Republic,  the 
criminal  prosecution  would  take  place  in  the 
Czech  Republic.  This  creates  an  obstacle  to 
the  surrender  of  a  person  for  criminal 
proceedings  abroad  {compare  Section  411 
Paragraph  6  letter  d)  of  the  Penal  Procedure 
Code]  unless,  in  view  of  the  nature  of  the 

EN 

56 

   EN 

 
 
 
 
conducts  in  question,  it  would  be  more 
efficient  to  mount  a  prosecution  in  the  other 
member  State,  for  example  because 
the 
decisive  material  evidence  is  in  that  State,  or 
because  the  deed  took  place  mostly  in  that 
State, etc.". 

N.B.: Section 411(6)(d) corresponds to Article 
4(2) of the Framework Decision. 

Legality principle 

Yes  

General information  

General Council recommendations 2009 

Language flexibility 

Time limit for translated EAW 

Provisional arrest  

Proportionality test  

On the basis of reciprocity with AT (German) 
and SK (Slovakian)  

The  CCP  provides  that  the  translated  EAW 
from  the  requesting  state  should  be  delivered 
to the Czech court within the time-limit of 40 
days.  Currently  being  prepared  new  Act  on 
International Judicial Cooperation in Criminal 
Matters  envisages  to  short  this  time-limit  to 
20 days. 

Yes, 48 hours. 

Yes, (an EAW shall not be issued if surrender 
"would  entail  costs  or  consequences  for  the 
Czech Republic that are manifestly dispropor-
tionate  to  the  public  interest  in  the  person  in 
question  being  criminally  prosecuted  or 
serving  a  custodial  sentence"  or  "would  be 
disproportionally  detrimental  to  the  person 
concerned compared with the advantage to be 
gained  by  criminal  proceedings  or 
the 
repercussions  of 
criminal  offence, 
the 
particularly  in  view  of  the  person's  age  or 
social or family circumstances"). Furthermore 
an  EAW  can  only  be  delivered  against  a 
person  that  has  been  personally  served  with 
the  accusation  or  has  been  declared  to  be  a 
fugitive.  Staying  abroad  does  not  in  itself 
constitute  a  basis  for  being  qualified  as  a 
fugitive. 

Is  it  possible  for  a  sought  person  to  get  (state  paid) 
legal  assistance  provided  by  X  in  the  following 
situations: 

1) NO 

(1)  in  X  for  the  underlying  X  criminal  proceedings 

2) YES.  

EN 

57 

   EN 

 
 
 
 
when  he  is  arrested  in  another  Member  State  on  the 
basis of a X EAW and 

(2)  in  another  Member  State,  for  the  underlying 
criminal proceedings when he is arrested in X on the 
basis of an EAW of the other state? 

(X = state in the head of the relevant column) 

Accessory surrender 

Person  whose  surrender  from  the  Czech 
Republic in another MS is requested  must be 
represented  by 
representative 
the 
(counsel) during the surrender procedure. 

legal 

possible.  Accessory 

is 
Not 
envisaged  to  be  regulated  by  the  new  Act  on 
International Judicial Cooperation in Criminal 
Matters.  

surrender 

Flagging 

On instruction of Supreme Public prosecutor's 
office 

Competent authority for Art 111 Schengen requests 

Courts 

Seizure and handover of property 

Yes  

Principle of direct contacts 

Czech  Republic  –  the  state  issuing  the 
EAW - In the exercise of the European Arrest 
Warrant direct contact with judicial bodies in 
other  EU  Member  States  is  applied.  The 
the 
Czech  Republic  has  not  determined 
central  authority  (Ministry  of  Justice)  as  the 
authority  determined  for  sending/receiving  of 
EAW`s. 

Czech  Republic  –  the  state  executing  the 
EAW  -  The  original  of  the  EAW  shall  be 
delivered  to  the  locally  competent  regional 
public  prosecution  office  directly  by  the 
authority  of  the  issuing  state.  The  Czech 
Republic  has  not  determined  the  central 
authority (Ministry of Justice) as the authority 
determined for sending/receiving of EAW`s. 

Integration of recital 12 in implementation law 

Not explicit, but indirect via section 377 CCP  

Dual criminality abolished for attempt and complicity  No.. An attempt and complicity are judged in 
the  same  way  as  completed  crimes  or  crimes 
committed by a single offender. 

4 months requirement  

Yes 

Regime for transfer back 

Czech Republic – the state issuing the EAW 

1/  EAW  for  surrender  of  a  person  for  criminal 
prosecution  

If  the  accused  (a  national  a  resident  of  an 
executing  state)  was  surrendered  to  the  Czech 
Republic with the reservation that in case he does 
not  give  consent  with  serving  imprisonment  or 

EN 

58 

   EN 

 
protective  measure  connected  with  a  detention 
(hereinafter  only  “protective  measure”)  in  the 
Czech  Republic,  he/she  must  be surrendered back 
to that Member State. The court has an obligation 
to  respect  this  reservation  based  on  Sections 
403(3)  and  388(1)  of  the  CPP.  In  such  a  case  the 
presiding  judge  will  deliver  the  judgment  to  the 
executing Member State as soon as possible.  

If  the  executing  Member  State  requires  (with 
regard to its internal legal arrangement) to have the 
European  Convention  on  the  Transfer  of  the 
Sentenced Persons as base for returning procedure, 
the  Czech  Republic  is  ready  to  meet  such  a 
requirement. 

2/ EAW for surrender of a person for execution of 
punishment  

refuses 

the  surrender  of 

In  case  the  surrender  is  requested  for  the  purpose 
of  execution  of 
imprisonment  or  protective 
measure  in  the  Czech  Republic  and  the  executing 
Member  State 
its 
inhabitant  or  a  resident,  the  Czech  Republic  asks 
such a Member State to recognise and execute an 
imprisonment  or  protective  measure  according  to 
its national legal order. For this purpose the court 
of  the  Czech  Republic  will  provide  a  judgement 
and  all  other  necessary  materials  for  such  a 
procedure. 

Czech Republic – the state executing the EAW 

1/  EAW  for  surrender  of  a  person  for  criminal 
prosecution  

If a national or resident of the Czech Republic is to 
be  surrendered  to  the  issuing  Member  State  for 
criminal  prosecution  and  such  a  person  does  not 
agree to serve a possible sentence abroad, the court 
will  decide  on  the  surrender  only  under  the 
condition  that  the  person  will  be  returned  for 
execution  of  imprisonment  or  protective  measure 
to the Czech Republic (if such kind of punishment 
or  protective  measure  will  be  imposed  and  the 
person,  after  the  rendering  of  judgment  in  the 
issuing  Member  State  does  not  agree  to  serve 
imprisonment or protective measure there).  

It  means  that  the  court  surrenders  such  a  person 
only  in  the  case  when  the  issuing  Member  State 
provides  a  guarantee  that  it  would  surrender  the 
person  back  to  the  Czech  Republic  for  execution 
of imprisonment or protective measure. Unless the 
guarantee  is  granted  by  the  requesting  state,  the 
court will refuse the surrender of the person.  

It  is  the  task  of  a  public  prosecutor  in  the 
preliminary  inquiry  concerning  EAW  to  request 
the guarantee of the issuing Member State if such 

EN 

59 

   EN 

 
a  guarantee  is  not  a  part  or  an  enclosure  of  the 
EAW already. The guarantee must be provided by 
the  issuing  Member  State  before  decision-making 
of the court.  

The court of the issuing Member State shall inform 
according  to  its  national  legislation  implementing 
the  EAW  Framework  Decision  the  court  of  the 
Czech  Republic  about  its  final  decision  imposing 
imprisonment  or  protective  measure  on 
the 
surrendered  person.  After  the  court  in  the  Czech 
Republic  is  informed  about  it,  it  will  ask  the 
relevant authority of the issuing Member State for 
delivery of enforceable judgement with translation 
into  the  Czech  language.  After  that  the  court  will 
recognise the decision and order its execution. The 
adequate  procedure  is  followed  also  in  case  of 
imposition of protective measure. 

In  case  the  issuing  Member  State  requires  (with 
regard  to  its  national  legal  arrangement)  that  the 
procedure is followed on the basis of the European 
Convention  on  the  Transfer  of  the  Sentenced 
Persons,  the  Czech  Republic  would  be  ready  to 
meet that request. 

2/ EAW for surrender of a person for execution of 
punishment  

In  case  the  surrender  of  the  Czech  national  or 
resident  is  requested  for  the  purpose  of  execution 
of  imprisonment  or  protective  measure  in  the 
issuing  Member  State  and  if  such  a  person  does 
not  agree  to  service  them  abroad,  the  court of  the 
Czech  Republic  refuses  the  EAW  and  asks  the 
issuing Member State to deliver within 30 days the 
final  judgement  with  a  translation  into  the  Czech 
language.  

The  court  shall  recognise  the  judgement  of  the 
issuing Member State and order its execution. This 
adequate  procedure  is  followed  also  in  case  of 
imposition of protective measure. 

24/7 system is applied by SIRENE. As far as 
judicial authorities, there always a prosecutors 
and judges on duty. 

No.  The  courts  in  the  Czech  Republic  have 
not experienced such a case so far. 

24/7 rota? 

In case of refusal of surrender for the execution of a 
sentence on the ground that the sought person has the 
nationality, or is a resident of the executing State, is 
execution  of  that  sentence  possible  in  the  executing 
state when there is no dual criminality? 

Age of criminal liability  

15 yrs 

Statistics 

Yes: 2007, 2008: and 2009 

EN 

60 

   EN 

 
 
Website 

Yes, website MoJ 

- Guidance notes (Instruction) of the MoJ (for 
judges) 

-  Guidance  notes  of  the  Public  Prosecution 
Office (for public prosecutors) 

- Sirene office's written guidance for issuing 

EAWs 

Yes 

Jurisdiction ECJ 

Case law/preliminary questions  

The CZ Constitutional Court decided that the relevant article in CZ law does not prevent a EAW from 
being executed when the crime has been committed partly abroad and partly in the CZ Republic, and 
the issuing state is in a better position to prosecute (PL.ÚS 66/04). 

COM Implementation Report of 2007 

CZ legislation does not respect the absolute limit 
provided in the Framework Decision of 7 August 
2002. Instead it sets its own date of application of 
the  EAW  of  1st  November  2004.  Since  the 
amending  act  of  19  April  2006  that  entered  into 
force  on  1  July  2006,  this  time-limit  applies  for 
Czech nationals only.  

A  new  legislation  in  order  to  eliminate  this 
deficiency is being prepared.  

to 

contrary 

the  Framework 
Furthermore, 
Decision,  requests  for  offences  committed  by 
Czech nationals prior to 1 November 2004 will be 
treated  by  CZ  under  previous  extradition 
arrangements. 

EN 

61 

   EN 

 
 
 
 
 
6. DENMARK 

Recommendations EAW report 6-12-2006 

Follow up report 21-9-09 

(13801/2/06 REV 2 CRIMORG 149) 

New developments 

No change in legislation since 01-04-2007. 

1  -  To  examine  what  electronic  flagging/cross 
referencing  may be put in place to improve the ease 
by  which  police  and  prosecutorial  users  may 
reference  EAW  forms  and  procedures  on  the  police 
POLNET system. (See 7.2.1.1) 

2  -  To  post  electronic  EAW  forms  in  all  languages, 
and  in  their  unedited  entirety,  onto  the  police 
POLNET  IT  system, 
together  with  a  standing 
instruction that the forms must be utilised in all cases. 
(See 7.2.1.1) 

3  -  To  implement  a  simple  referencing  system 
whereby  the  POLNET  archive  (or  other  such  case 
management IT system as may be appropriate) can be 
interrogated by users to deliver listings of all cases in 
which  EAWs  have  been  utilised.  Given  the  low 
volume of historical cases, all existing EAWs matters 
should be cross-referenced accordingly. (See 7.2.1.2) 

4  -  To  reassess  police  district  EAW 
requirements  once 
forthcoming police reform are in place. (See 7.2.1.3) 

the  new  structures  of 

training 
the 

5  -  To  reconsider  the  competence  of  the  Minister  of 
Justice,  or  to  put  equivalent  measures  into  place,  so 
as  to  ensure  that  concrete  EAW  files  may  not  be 
referred  for  consideration/decision  making.1  (See 
7.3.1.1)  

1  In  accordance  with  the  principles  of  transparency 
which  led  to  the  reorganisation  of  the  Danish  court 
system in 1990.  

6  -  To  underline  in  a  manner  felt  appropriate,  for 
example  at 
the 
primacy  of  the  positive  list  set  as  out  in  Article  2 
paragraph 2 of the FD. (See 7.3.1.2) 

training  seminars, 

judicial/MOJ 

7 - To consider measures by which the formulation of 
requests  for  information  may  be  further  streamlined 
so  that  all  domestic  participants  are  afforded  the 
opportunity  to  coordinate,  if  possible,  to  a  single 
unified communication issued by the JA. (7.3.1.3) 

EN 

62 

   EN 

 
 
 
 
 
 
 
 
 
General information 

General Council recommendations 2009 

Language flexibility 

Danish, Swedish, English 

Time limit for translated EAW 

No 

Provisional arrest  

Proportionality test ? 

Yes (24 hours) 

Issuing : Yes 

Is  it  possible  for  a  sought  person  to  get  (state  paid) 
legal  assistance  provided  by  X  in  the  following 
situations: 

(1)  in  X  for  the  underlying  X  criminal  proceedings 
when  he  is  arrested  in  another  Member  State  on  the 
basis of a X EAW and 

(2)  in  another  Member  State,  for  the  underlying 
criminal proceedings when he is arrested in X on the 
basis of an EAW of the other state? 

(X = state in the head of the relevant column) 

Legal  assistance  follows  the  general  rules  in 
the Danish legislation by which a person gets 
state-paid  legal  assistance  during  the  trial.  In 
cases  where  the  person  is  convicted  of  the 
crime  the  person  is  sentenced  to  pay  the 
expenses  of  the  case  including  the  expenses 
for legal assistance 

Accessory surrender 

Yes  

Flagging 

communication centre of the National Police 

Competent authority for Art. 111 Schengen requests 

Seizure and handover of property 

Yes  

Principle of direct contacts 

-  Ministry  of  Justice 
competent judicial authority  

is  designated  as 

the  Danish  system 

-  Judges  play  no  role  in  issuing  EAW's. 
However,  whilst 
is 
frequently  misunderstood,  it  seems  important 
to  reiterate  that  a  Danish  EAW,  although 
issued  by  the  Ministry  of  Justice,  is  always 
based  on  a  sentence  issued  by  a  judge  or  a 
judicial remand decision.  

-  In  executing  cases  the  initial  decision  is 
taken  by  the MoJ.  Judges  play  a  role  when  a 
remedy is lodged against the decision of MoJ  

Integration of recital 12 in implementation law 

Yes, and 13 

Dual criminality abolished for attempt and complicity  No 

EN 

63 

   EN 

 
 
 
 
4 months requirement  

In  general  EAWs  are  only  issued  when  there 
remains  a  minimum  of  4  months  of  the 
sentence to be served 

Regime for transfer back 

1983 CoE convention 

24/7 rota? 

Yes  

In case of refusal of surrender for the execution of a 
sentence on the ground that the sought person has the 
nationality, or is a resident of the executing State, is 
execution  of  that  sentence  possible  in  the  executing 
state when there is no dual criminality? 

Age of criminal liability  

14 years as of 1 July 2010 

Statistics  

Website 

Yes: 2007and 2008  

Police  and  prosecutor's  intranet,  POLNET, 
contains  handbook/guidelines  on  EAW  (no 
public access) 

Jurisdiction ECJ 

No  

Case law/preliminary questions: - 

COM Implementation Report of 2007 

DK  shall  refuse  surrender  on  the  ground  of  a 
danger that, after surrender, the requested person 
will  suffer  persecution  for  political  reasons, 
possible  threat  with  torture,  degrading  treatment, 
and  violation  of  due  process  as  well  as  if  the 
to  be  unreasonable  on 
surrender  appears 
for 
grounds.  Such 
humanitarian 
mandatory  refusal  go  beyond  the  Framework 
Decision. 

grounds 

The Framework Decision does not define what a 
judicial authority is, this question being left to the 
national  law  of  Member  States.  Whilst  it  is 
understood 
is 
designated  by  national  Danish  law  as  being  a 
judicial  authority,  it  is  difficult  to  view  such  a 
designation  as  being 
the 
Framework Decision. 

the  Minister  of  Justice 

the  spirit  of 

that 

in 

Article 20 FD– Privileges and immunities 

DK  has  stated  that  there  is  no  implementing 
legislation  on  this  matter  and  that  they  consider 
this issue to be regulated between Member States. 
This  is  not  considered  sufficient  in  particular 

EN 

64 

   EN 

 
 
 
 
 
 
 
since  national  measures  are  necessary 
to 
transpose  time  limits,  as  Framework  Decisions 
are not directly applicable. 

Article 21 – Competing international obligations 

DK  has  not  transposed  this  provision  as  there  is 
no specific legislation on this matter and though it 
has stated that it will carry this out in accordance 
with  the  Framework  Decision  on  a  case  by  case 
basis  this  is  not  in  line  with  the  Framework 
Decision. 

EN 

65 

   EN 

 
 
 
7. ESTONIA 

Recommendations EAW report 20-2-2007 

Follow up report 3-8-09 

(5301/2/07 REV 2 CRIMORG 9) 

New developments 

1.  –  That  domestic  legislation  is  put  in  place 
designating  the  competent  issuing  JA  in  EAW  cases 
arising in respect of persons who abscond during the 
course of criminal proceedings (see 7.2.1.1)1. 

2.  –  That  a  study  be  undertaken  of  the  translation 
capacity  available  to  Estonia’s  CA  in  EAW  matters 
so  that  areas  of  weakness  may  be  clearly  identified 
and, if possible, rectified (see 7.2.1.2.). 

3.  –  That  consideration  be  given  to  clarifying  which 
Estonian  authority  would  be  best  placed  to  provide 
guarantees  which  may  be  required  by  executing 
Member  States  pursuant  to  Article  5(3)  of  the  FD 
(see 7.2.1.4.). 

4.  –  That  domestic  legislation  be  put  in  place  to 
permit surrendered persons to cross Estonia’s borders 
in the absence of international travel documents (see 
7.2.1.5.)  

5.  –  That  domestic  legislation  be  put  in  place  to 
permit EAWs to be withdrawn where the basis for the 
issue  of  the  EAW  no  longer  exists  but  the  need  to 
preserve domestic criminal proceedings remains (see 
7.2.1.6.). 

6. – That an examination of Estonia's CID resources 
be undertaken to ascertain if increased staffing would 
contribute  to  increased  screening  of  Interpol  Red 
Notices/diffusions (see 7.3.1.1.). 

to 

the  Estonian  Criminal 
Amendment 
Procedure  Code  in  respect  of  the  European 
Arrest Warrant came into effect from 23 May 
2008 

It  is  envisaged  that  by  the  end  of  2010, 
Estonian  legislation  in  international  judicial 
cooperation  (Chapter  19  of  the  Estonian 
Criminal Procedure Code) will be revised and 
redrafted  and  may  include  amendments  in 
respect of EAW provisions 

An  amendment  to  article  507  CPC  fills  the 
gap  

The translation issue is not a case any more 

Authorities for providing guarantees pursuant 
to  Article  5(3)  of 
the  FD  are  Courts 
responsible for EAW issues 

Relevant  legislation  (The  Border  Act°  has 
been amended as from 23 May 2008 

This 
issue  has  been 
amending the legislation 

regulated  without 

7. – That the practice of police obtained consents be  The  practice  is  in  place  and  up  to  July  2010 

EN 

66 

   EN 

 
 
 
 
 
 
examined  with  a  view  to  clarifying  the  process  by 
which the requested person may grant or refuse their 
consent  to  surrender  before  the  executing  JA  (see 
7.3.1.2). 

8.  –  That  Estonia's  Fiche  Française  be  reviewed  by 
the  relevant  EAW  authorities  to  verify  its  accuracy, 
and  that  any  errors  and/or  omissions  discovered  be 
remedied as soon as practicable (see 7.3.1.3 ) 

9.  –  That  domestic  legislation  be  put  in  place  to 
clarify  the  precise  criteria  applicable  to  the  issue  of 
bail/release in EAW proceedings (see 7.3.1.4). 

10.  –  That  mechanisms  be  established  to  ensure  the 
timely  release  of  requested  persons  in  keeping  with 
mandatory  release  provisions  established  by  the 
Criminal Procedure Code (see 7.3.1.5.). 

11.  –  That  domestic  legislation  be  amended  to 
provide  for  the  possibility  that  a  requested  person 
may elect not to be represented by a defence advocate 
during the surrender proceedings (see. 7.3.1.6.). 

12.  –  That  domestic  legislation  be  put  in  place  to 
expressly  assert  that  surrender  in  respect  of  FD  list 
offences is to occur without verification of the double 
criminality of the act (see 7.3.1.7.). 

13.  –  That  domestic  legislation  be  put  in  place  to 
clearly  define  and  limit  the  precise  legal  grounds  by 
which Estonia’s executing JAs  may refuse surrender 
(see 7.3.1.8) 

14.  –  That  domestic 
legislation  be  considered 
whereby  Estonia’s  executing  JAs  are  designated  as 
the  body  competent  to  authorise  temporary  or 
conditional  surrenders  and  onwards  surrenders  (see 
7.3.1.9. ). 

15.  –  That  domestic  legislation  be  put  in  place  to 
ensure that humanitarian grounds are established as a 
permissible  basis  for  the  postponement  of  surrender 
of  the  requested  person  in  appropriate  cases  (see 
7.3.1.10.). 

16.  –  That  the  Estonian  Law  Centre  review  the 
various legislative amendments made pursuant to this 
report,  together  with  their  concrete  consequences, 
and  submit  an  appropriate  training  programme  to 
the 
Estonia's  Training  Council 
necessary training regimes are put in place as soon as 

to  ensure 

that 

no real problems have arisen 

The Fiche Française has been reviewed 

Estonian  legislation  allows  to  issue  the  bail 
release  in  EAW  cases  but  in  practice  it  has 
never  been  used.  No  need  for  amending  the 
legislation  

This  issue  is  regulated  by  police  regulations, 
no need for amending legislation 

The  legislation  has  not  been  amended  since 
the representation by a defence advocate is in 
our  understanding  one  of  the  guarantees  of 
citizen  rights.  Legal  representation  is  free  for 
the person concerned 

The legislation is now in conformity with the 
Framework  Decision  (new  wording  of  art 
491) 

The  legislation  has  been  amended  from  23 
May 2008 

The  legislation  has  been  amended  from  23 
May 2008 

The  legislation  has  been  amended  from  23 
May 2008 

There  are  every  year  at  least  two  training 
courses  for  judges  on  the  EAW  issue  and  at 
least  one  for  defence  lawyers.  As  at  July 
2010,  the  Estonian  Law  Centre  no  longer 
exists 

EN 

67 

   EN 

 
practicable (see 5.8.1.). 

-  Estonia  has  so  far  no  “own”  guidelines  on 
the  application  of 
the  EAW  and  all 
practitioners use the common guidelines made 
by the Council (the common Handbook). 

General information  

General Council recommendations 2009 

Language flexibility 

Yes, Estonian and English.  

In  communication  English  is  mostly  used  as 
vehicular language. 

3 working days 

Yes 48 hours 

Yes, on issuing EAWs; uniformity is ensured 
by  review  by  the  Chief  State  Prosecutor's 
team  

Time limit for translated EAW 

Provisional arrest  

Proportionality test  

Is  it  possible  for  a  sought  person  to  get  (state  paid) 
legal  assistance  provided  by  X  in  the  following 
situations: 

(1)  in  X  for  the  underlying  X  criminal  proceedings 
when  he  is  arrested  in  another  Member  State  on  the 
basis of a X EAW and 

(2)  in  another  Member  State,  for  the  underlying 
criminal proceedings when he is arrested in X on the 
basis of an EAW of the other state? 

(X = state in the head of the relevant column) 

Accessory surrender 

Not possible 

Flagging 

SIRENE  office,  after  consultation  with  the 
Prosecutor General's Office 

Competent authority for Art. 111 Schengen requests 

Seizure and handover of property 

Principle of direct contacts 

Yes  

Yes 

On  various  points  the  central  authority  is 
decision making body rather than the Judicial 
temporary/conditional 
authority 
surrender, onward surrender) 

(e.g. 

EN 

68 

   EN 

 
 
 
 
 
 
 
Integration of recital 12 in implementation law 

Indirect via constitutional provision. 

Dual criminality abolished for attempt and complicity  Yes  

4 months requirement 

Regime for transfer back 

Mandatory concerning Estonian citizens to be 
surrendered to the other MS 

24/7 rota? 

Yes  

In case of refusal of surrender for the execution of a 
sentence on the ground that the sought person has the 
nationality, or is a resident of the executing State, is 
execution  of  that  sentence  possible  in  the  executing 
state when there is no dual criminality? 

Possibly yes, but has not occurred in practice 
so far 

Age of criminal liability  

14 yrs 

Statistics  

Website 

Yes: 2007, 2008and 2009 

Yes,  mainly  summaries  of  Supreme  Court 
decisions 

Jurisdiction ECJ 

No 

Case law/preliminary questions: - 

COM Implementation Report of 2007 

for  by 

the  national 
Though  not  provided 
legislation, the judicial authorities in EE consider 
the merit of each case, applying a proportionality 
test  in  coming  to  a  decision  in  respect  of  the 
surrender  application.  As  a  consequence,  a 
Judicial Authority may refuse surrender purely on 
merit  grounds  rather  than  pursuant  to  any  of  the 
grounds  stated  in  Article  3  and  Article  4  of  the 
Framework  Decision.  Such  a  practice  is  clearly 
contrary to the Framework Decision. 

EE has not transposed Art 4 paragraph 1 FD but 
has stated it  will apply it in practice, though this 
cannot be viewed as full transposition. 

This  situation  is  inherent  to  the  EE  criminal 
procedural system in which all arguments can be 
brought  before  the  judge.  No  refusals,  however, 
are  reported  on  other  grounds  than  grounds 
included in the FD.  

EN 

69 

   EN 

 
 
 
 
 
 
8. FINLAND  

Recommendations EAW report 28-9-2007 

Follow up report 27-7-2009 

(11787/2/07 REV 2 CRIMORG 125) 

New developments 

Recommendation  1  -  That  the  prosecutors  EAW 
that  prosecutors  are 
handbook  be  amended  so 
directed to liaise with the Criminal Sanctions Agency 
prior to the issue of all prosecution EAWs  

(see 7.2.1.1). 

Implementation  of  the  Nordic  Extradition 
Convention 01-01-2008 

-  Improved  coordination  and  development  of 
proceedings  between  EAW  authorities  and 
Sirene bureau 

-  Handbook  for  prosecutors  updated  on  a 
the 
(and 
regular  basis 
prosecutors' intranet). 

available  on 

Recommendation  2  -  That  section  23  of  the  EU 
Extradition Act be redrafted without reference to the 
police  

(see 7.3.1.2). 

Recommendation  3  -  That  the  expansion  of  the 
mandatory  refusal  grounds  to  include  situations  not 
foreseen in the FD be reconsidered at a political level  

(see 7.3.1.3). 

Recommendation  4  –  That  section  5  (1)(5)  be 
redrafted so that the scope of the territoriality ground 
for  refusal  is  made  clear  and  limited  as  intended  by 
Finland  

(see 7.3.1.3) 

Recommendation  5  -  That  Finland  designate  a 
competent  authority/authorities  to  superintend  all 
undertakings,  given  by  Finland  or  by  other  Member 
States, in respect of EAW proceedings  

(see 7.3.1.4).  

to  return 

Prosecutor  (when  Finland  is  issuing  state) 
must  check  whether  executing  state  has  set  a 
condition 
the  person  or  other 
conditions.  Prosecutors  should  on  their  part 
make sure that the condition set in accordance 
with  Art5(3)  FD  on  EAW 
is  followed. 
Detailed  advice  about  this  has  been  added  to 
the handbook 

Before  the  EAW  is  issued,  the  prosecutor 
must check whether the same person has other 
cases pending where the EAW would also be 
needed.  Prosecutors  should  act  in  a  way  that 
that all offences be included in the one single 

EN 

70 

   EN 

 
 
 
 
 
 
Recommendation  6  -  That  legislative  clarity  be 
established in respect of the translation provisions set 
out  in  sections  15(1)  and  15(3)  of  Finland's  EU 
Extradition Act  

(see 7.3.1.5). 

EAW. 

Section  15(1)  contains  a  provision  under 
which FI accepts requests in Finnish, Swedish 
or  English  languages  (and  on  a  discretionary 
basis, in situations meant in section 15(2) also 
in  other  languages).  In  other  words,  as  an 
executing  State,  purpose  was  to  facilitate 
sending  requests  to  FI  by  other  MS,  by 
accepting  requests  also  in  other  languages 
than  in  our  own.  On  the  other  hand,  section 
15(3)  is  meant  to  be  applied  in  domestic 
surrender  procedure,  in  other  words,  due  to 
domestic  legislation  on  languages  to  be  used 
in criminal proceedings and linguistical rights, 
when  surrender  procedure  starts,  the  request 
has  to  be  translated  into  Finnish  or  Swedish 
(in  case  it  has  been  sent  in  English)  and  it  is 
the  responsibility  of  the  Central  Bureau  of 
request. 
Investigation 
Therefore 
relationship 
between section 15(1) and 15(3) is clear, and 
these  two  provisions  do  not  contradict  with 
each other. 

in  our  view 

translate 

the 

the 

to 

Recommendation  7  -  That  legislative  clarity  be 
applied to the objectives of section 34(2) of Finland's 
EU Extradition Act  

(see 7.3.1.6). 

In  the  context  of  drafting  legislation  on 
Nordic  Arrest  Warrant,  section  34(2)  of 
Finlands  EU  Extradition  Act  was  repealed 
(1385/2007),  since  it  was  not  regarded  as 
being  in  conformity  with  obligations  of  the 
FD on EAW That amendment came into force 
on 1 January 2008 

Recommendation  8  -  That,  in  respect  of  associated 
surrenders  of  property  and  of  requested  persons, 
jurisdictional  competence  between 
the  Coercive 
Measures Act and the EU Extradition Act is aligned 
(see 7.3.1.8). 

Recommendation  9  -  That  consideration  be  given  to 
establishing regular judicial refresher training courses 
on the EAW  

-  Training  organised  by 
Prosecutor's Office on a regular basis. 

the  General 

- Team of experts  

(see 7.3.1.9). 

General information  

General Council recommendations 2009 

Language flexibility 

Issuing: all EAWs are translated in English 

Executing: Start possible in English 

EN 

71 

   EN 

 
 
 
 
Separate regime for the Nordic countries  

Time limit for translated EAW 

Provisional arrest  

Proportionality test  

Possible  

Yes  

-  level  over  and  above  the  bare  statutory  criteria, 
including the EAW history of experience with the 
executing  MS  (e.g.  for  countries  with  long 
surrender delays) 

Is  it  possible  for  a  sought  person  to  get  (state 
paid)  legal  assistance  provided  by  X  in  the 
following situations: 

for 

in  X 

(1) 
the  underlying  X  criminal 
proceedings  when  he  is  arrested  in  another 
Member State on the basis of a X EAW and 

(2)  in  another  Member  State,  for  the  underlying 
criminal proceedings when he is arrested in X on 
the basis of an EAW of the other state? 

(X = state in the head of the relevant column) 

Accessory surrender 

Possible 

Flagging 

FI  does  not  issue  prohibitions/validity  flags  other 
than – on the basis of guidelines of the prosecutor 
general's  office  -  in  cases  where  mandatory 
grounds  for  refusal  apply  (e.g.  minors  under  the 
age of 15 years) 

Competent  authority  for  Art  111  Schengen 
requests 

Seizure and handover of property 

Partly transposed, separate procedures 

Principle of direct contacts 

Yes  

Integration of recital 12 in implementation law 

Fully and 13 

Dual  criminality  abolished  for  attempt  and 
complicity 

Yes  

4 months requirement 

Regime for transfer back 

The working group has prepared a proposal for a 
government bill on the implementation of the FD 
on transfer of prisoners, which mutatis mutandis is 
meant  to  be  applied  also  in  situations  where 
transfer is based on Articles 4(6) or 5(3) of the FD 
on  EAW.  Purpose  is  to  prepare  and  submit  the 

EN 

72 

   EN 

 
 
 
 
 
Government  Bill  to  the  Parliament,  so  that  the 
implementing legislation would come into force in 
deadline required in the FD, in other words, by 5 
December 2011. 

Yes  for  police  services,  partly  for  prosecutors 
(only regular office hours and week ends) 

24/7 rota? 

In  case  of  refusal  of  surrender  for  the  execution 
of  a  sentence  on  the  ground  that  the  sought 
person has the nationality, or is a resident of the 
executing  State,  is  execution  of  that  sentence 
possible  in  the  executing  state  when  there  is  no 
dual criminality? 

Age of criminal liability  

15 yrs, specific regime for 15-18 yrs 

Statistics  

Website 

2007 and 2008: yes 

Prosecutor's 
i.e. 
updated handbook/guidelines on EAW 

intranet  contains 

regularly 

Jurisdiction ECJ 

Yes, 35.3.b 

Case law/preliminary questions  

C-388/08 Lyemann and Pustarov (judgment of 01/12/2008: 

In  2008  the  Finnish  Supreme  Court  gave  a  significant  decision  (KKO  2008:118)  in  a  case 
concerning  the  EAW  and  the  application  of  specialty  principle  (art.  27).  The  legal  question 
was as follows: in a case concerning a drug offence the final charge no longer corresponded in 
all respects to the original description of the criminal act described in the arrest warrant. In the 
final  description  of  the  criminal  act  there  was  a  large  amount  (25  kilograms)  of  hashish 
whereas in the arrest warrant it was informed that the defendants had imported a large amount 
of amphetamine. Also the time of commission of the offence differed partly from the arrest 
warrant. The Finnish Supreme Court asked the Court of Justice of the European Communities 
for  a  preliminary  ruling,  which  was  given  on  1  December  2008  (C-388/08  Lyemann  and 
Pustarov (judgment of 01/12/2008)The ECJ held as follows: 

In order to establish whether the offence under consideration is an ‘offence other’ than that for 
which  the  person  was  surrendered  within  the  meaning  of  Article  27(2)  of  Framework 
Decision  2002/584,  requiring  the  implementation  of  the  consent  procedure  referred  to  in 
Article  27(3)(g)  and  27(4)  of  that  Framework  Decision,  it  must  be  ascertained  whether  the 
constituent  elements  of  the  offence,  according  to  the  legal  description  given  by  the  issuing 
State,  are  those  in  respect  of  which  the  person  was  surrendered  and  whether  there  is  a 
sufficient  correspondence  between  the  information  given  in  the  arrest  warrant  and  that 
contained in the later procedural document. Modifications concerning the time or place of the 
offence  are  allowed,  in  so  far  as  they  derive  from  evidence  gathered  in  the  course  of  the 
proceedings  conducted  in  the  issuing  State  concerning  the  conduct  described  in  the  arrest 
warrant, do not alter the nature of the offence and do not lead to grounds for non-execution 
under Articles 3 and 4 of the Framework Decision. 

EN 

73 

   EN 

 
 
 
A  modification  of  the  description  of  the  offence,  concerning  only  the  kind  of  narcotics  in 
question and not changing the legal classification of the offence, is not such, of itself, as to 
define an ‘offence other’ than that for which the person was surrendered within the meaning 
of  Article  27(2)  of  Framework  Decision  2002/584  on  the  European  arrest  warrant  and  the 
surrender procedures between Member States, since it is an offence still punishable according 
to the same scale of penalties and comes under the rubric ‘illegal trafficking in narcotic drugs’ 
in Article 2(2) of that Framework Decision. 

After  this  the  Finnish  Supreme  Court  gave  its  decision.  It  considered  that  the  constituent 
elements of the offence mentioned in the arrest warrant and in the final charge were the same 
as those on which grounds the defendants were surrendered. The descriptions of the criminal 
act were similar enough and Finland was not obliged to request the extraditing Member State 
a consent mentioned in article 27 (3g) in order to decide on the amended charge.  

COM Implementation Report of 2007: no remarks stem from the 2007 COM report. 

EN 

74 

   EN 

 
9. FRANCE 

Recommendations EAW report 20-7-2007 

Follow up report 29 July 2009 

(9972/2/07 REV 2 CRIMORG 95) 

New developments 

- Amending law: 12 May 2009 

- "Circulaire" of 13 July 2009 (on the new law) 

-  "Circulaire"  of  20  July  2009  (on  new  instruments 
created  with  a  view  to  a  more  efficient  application 
of the EAW)  

1- Consider the possibility - while respecting freedom 
to  assess  individual  situations  -  of  pursuing  a  policy 
on  the  execution  of  sentences  which  is  reasonably 
homogenous, so as to ensure uniformity of treatment 
(see 7.2.1.1.). 

Following  the  “circulaire”  of  11  March  2004,  the 
"circulaire"  of  20  July  2009  gives  guidance  with  a 
view to reduce the number of EAWs based on an in 
absentia judgement by means of a better use of other 
mutual legal assistance instruments. 

See also: recommendation 4 

2 - As soon as possible, abide by the provisions in the 
Framework  Decision  relating  to  the  standard  form, 
and  avoid  introducing  practices  which  condone  the 
particular  legal  requirements  of  certain  States,  but 
which are not laid down in the Framework Decision 
and  which  go  beyond  the  principle  of  mutual 
recognition (see 7.2.1.2). 

The  Ministry  of  Justice  has  suppressed  the  UK 
EAW  form  that  was  available  on  its  website, 
drawing  the  attention  of  the  courts  on  the  fact  that 
the  EAW  form  must  not  be  modified.  It  has  been 
replaced by guidance addressed to the French courts 
who want to issue a EAW to UK to stress the most 
important points at issue.  

3  -  Exploit  to  the  maximum  the  potential  of  the 
support tools available to magistrates to facilitate the 
application  of  the  EAW,  particularly  by  carefully 
updating  the  departmental  circular,  distributing  a 
consolidated  version  of  that  circular,  and  updating 
BEPI's intranet site in the light of the development of 
case-law in this area. Create a section on the intranet 
site including the case-law of the Court of Justice of 
the  European  Union.  Encourage  regular  meetings  of 
the monitoring group and distribute the results of its 
discussions to all national courts and to interested bar 
associations (see 7.2.2.1 and 7.2.2.2). 

4 - Improve the system for compiling information at 
the  Ministry  of  Justice  on  EAWs  dealt  with  directly 
by the French judicial authorities (see 7.2.2.3). 

- New "circulaires" have been issued in 2009. 

- Relevant case law of the Cour de cassation and the 
European Court of Justice has been published on the 
website of the Ministry of Justice and is up to date 

-  Furthermore,  some  case  law  collection  has  been 
made  on  certain  themes  such  as  "droits  de  la 
défense"  and  "le  statut  de  réfugié"  in  the  EAW 
procedure. 

(specialised  service  of 

A  central  mailbox  has  been  introduced  at  the 
"Mission  Justice" 
the 
Ministry  of  Justice)  where  all  EAW's  issued  by 
judicial  authorities  are  gathered  and 
French 
processed 
judicial 
for  electronic  delivery.  A 
authority  attached  to  this  service  may  recommend 
changes in the text to the issuing authority. 

A mailbox is also created at the Ministry of Justice 
to receive reports on all EAW's executed by French 

EN 

75 

   EN 

 
 
 
judicial authorities.  

the  role  of 

Different  decisions  of  the  Cour  de  cassation  have 
the  executing  authority, 
clarified 
emphasizing  the  character  of  mutual  recognition  of 
the  EAW.  These  decisions  limit  the  cases  in  which 
dual  criminality  can  be  checked  and  additional 
information  will  be  asked  and  give  a  strict 
interpretation of the grounds for refusal. 

5  –  Consider  a  more  flexible  approach  involving 
agreeing to surrender the wanted person on the basis 
of  an  EAW  drawn  up  in  a  language  other  than 
French,  in  line  with  some  Member  States'  practice 
(see 7.3.1.2). 

6 – Consider the possibility of amending or clarifying 
the  Code  of  Criminal  Procedure  as  regards  the 
arrangements (acceptance of an EAW in a form other 
than  the  original  or  a  certified  copy  of  the  original) 
and time limit (six-day rule) for receipt of an EAW, 
as allowed under the case-law of the Supreme Court 
of Appeal (Cour de cassation) (see 7.3.1.3). 

7  –  Keep  to  the  information  supplied  by  the  issuing 
judicial  authority  in  the  EAW  form  and  as  far  as 
possible  avoid  making  any  requests  concerning  the 
substance  of  the  case,  which  are  liable  to  interfere 
with  criminal  proceedings  pending  in  the  issuing 
State, with the possible result of refusal to surrender 
the  wanted  person  to  the  requesting  authorities  (see 
7.3.1.4). 

8  –  Encourage  coordination  between  the  French 
authorities  involved  in  the  process  of  executing  an 
EAW,  so  as  to  limit  the  number  and  extent  of 
requests  to  the  issuing  authority  for  additional 
information (see 7.3.1.5). 

9  –  Consider  amending  the  Code  of  Criminal 
Procedure as regards execution of an EAW, so as to 
enable the principal public prosecutor also to place a 
person under judicial supervision (see 7.3.1.7). 

The  General  Prosecutor  may  now  apply  alternative 
measures  to  detention  ("contrôle  judiciaire")  on  the 
basis of Article 695-28 and 138 CPP. 

10 - Clarify and delineate precisely the powers of the 
principal  public  prosecutor  and  of  the  examining 
chamber  as  regards  a  stay  of  surrender,  for  serious 
humanitarian reasons see 7.3.1.8). 

11 - Consider the possibility of amending the Code of 
Criminal Procedure with regard to discrimination as a 
ground for non-execution (see 7.3.1.9). 

12  -  Consider  the  possibility  of  reviewing  the 
domestic  implementing  legislation  as  regards  the 
time-limits  in  Article  17(7)  of  the  Framework 
Decision (see 7.3.1.10). 

13 - Go ahead with the planned amendment of Article 
695-46 of the Code of Criminal Procedure as regards 
speciality (see 7.3.1.12). 

Article 695-46 CCP has been changed. It is now in 
complete conformity with paragraph 27(3)(g) of the 
Framework Decision. 

EN 

76 

   EN 

 
 
 
 
 
 
 
14 - Standardise practice on extension of the terms of 
surrender, by amending Article 695-46 of the Code of 
Criminal Procedure (see 7.3.1.13). 

15  -  Clarify  the  domestic  provision  governing 
temporary surrender (see 7.3.1.15). 

16  -  Amend  the  Code  of  Criminal  Procedure  to 
introduce  coercive  powers  ensuring  that  the  wanted 
person  is  actually  surrendered  to  the  requesting 
authorities (see 7.3.1.16). 

This practice has improved. The French Ministry of 
Justice  has  indicated  to  the  courts  that  the  decision 
of  temporary  surrender  has  to  be  decided  between 
the judicial authorities of both states concerned. The 
French Ministry must not intervene.  

Article 695-26 and 695-37 CPP have been changed. 
The  prosecution  service  may  now  apply  coercive 
measures in conformity with article 74-2 CPP. 

17  -  Take  the  necessary  measures  to  guarantee,  in 
practice,  that  lawyers  have  access  to  information 
concerning  an  EAW  in  time  to  ensure  that  they  are 
best  able  to  put  up  an  effective  defence  for  their 
client (see 7.3.1.17). 

Different  decisions  of  the  Cour  de  cassation  have 
clarified the position of the defence, including legal 
representation,  access  to  the  file,  a  possibility  to 
study  the  file  and  free  communication  between 
lawyer and client 

Articles  728-2  and  728-3  CCP  have  been  changed. 
In  case  of  refusal  of  the  execution  of  a  foreign 
sentence  in  accordance  with  paragraph  4(6)  of  the 
Framework  Decision,  the  "chambre  d'accusation" 
can  now  immediately  carry  on  with  proceedings  to 
take  over  the  execution  of  the  foreign  custodial 
sentence  or  detention  order  ("mise  à  execution 
directe").  

A  further  amendment  (to  Article  729-2)  allows  the 
applicability  of  the  measure  of  conditional  release 
when executing a foreign sentence in these cases. 

The  coordinates  of  the  competent  service  for  the 
factual surrender will be mentioned in all EAWs.  

General information  

General Council recommendations 2009 

Language flexibility 

No 

Time limit for translated EAW 

Provisional arrest  

Proportionality test  

Yes 48 hours  

Yes,  on  case  by  case  basis.  In  average  effective 
imprisonment to be executed or to be expected for a 
minimum of one year. 

EN 

77 

   EN 

 
 
 
 
 
 
 
Is  it  possible  for  a  sought  person  to  get  (state  paid) 
legal  assistance  provided  by  X  in  the  following 
situations: 

(1)  in  X  for  the  underlying  X  criminal  proceedings 
when  he  is  arrested  in  another  Member  State  on  the 
basis of a X EAW and 

(2)  in  another  Member  State,  for  the  underlying 
criminal proceedings when he is arrested in X on the 
basis of an EAW of the other state? 

(X = state in the head of the relevant column) 

Accessory surrender 

Flagging 

Competent authority for Art 111 Schengen requests 

Seizure and handover of property 

A  new  subparagraph  has  been  introduced  in  article 
695-16  CPP,  giving  the  prosecution  service  the 
opportunity  to  ask,  in  the  form  of  an  EAW,  on  the 
basis  of  a  "mandat  d'amener"  for  additional 
permission  from  the  executing  State  for  facts  that 
were not comprised in the EAW in case the person 
that  had  been  surrendered  did  not  waive  speciality. 
(France as issuing state) 

Article  695-41  CPP  has  been  changed;  seizure  is 
now  possible  not  only  on  request  of  the  issuing 
authority  but  also  on  the  initiative  of  the  executing 
authority. 

Principle of direct contacts 

Integration of recital 12 in implementation law 

Yes 

Dual criminality abolished for attempt and complicity  Yes 

4 months requirement 

Regime for transfer back 

1983 CoE convention 

24/7 rota? 

Yes  

In case of refusal of surrender for the execution of a 
sentence on the ground that the sought person has the 
nationality, or is a resident of the executing State, is 
execution  of  that  sentence  possible  in  the  executing 
state when there is no dual criminality? 

Age of criminal liability  

13 years  

Statistics  

Yes: 2007 and 2008  

EN 

78 

   EN 

 
 
 
 
 
 
 
Website  

regularly  updated 

intranet  MoJ  with 
Yes, 
comprehensive  EAW  info  (case  law,  handbook, 
circular  letters,  FAQ,  forms  and  instructions  how 
they  have  to  be  used,  list  of  translators.  On-line 
assistance for judges and prosecutors 

Jurisdiction ECJ 

Yes 

Case law/preliminary questions 

See above, recommendation 7 and 17. 

COM Implementation Report of 2007 

FR  provides  that  a  final  decision  must  be  taken 
within 30 days of arrest. However where an appeal in 
cassation  leads  to  a  referral  to  another  Court,  which 
FR  considers  as  an  exceptional  case,  the  deadlines 
mentioned total 90 days. 

The  transposition  of  the  series  of  exceptions  to  the 
specialty rule laid down in article 27(3) a) to g): FR 
has not transposed exception c).  

EN 

79 

   EN 

 
 
 
 
 
 
10. GERMANY 

Recommendations EAW report 31-3-2009 

Follow up report 24-9-09 

(7058/1/09 REV 1 CRIMORG 32) 

New developments 

1.- Take the necessary measures at legislative level to 
draw  a  clear  distinction  between 
traditional 
extradition and the new EAW regimes (see 7.1.1). 

No  new  legislative  developments  since  the 
evaluation report (on-the spot visit September 
2008)  

2.-  Take  the  measures  considered  appropriate  to 
promote  a  common  procedural  approach  in  EAW 
cases in the different Länder (see 7.1.3). 

New guidelines as from 1-1-09 on, applicable 
in all Länder. 

3.- Update the Fiche Française to reflect current law 
and practice (see 7.1.8). 

Fiche française updated 18-9-09. 

4.-  Modify  the  law  with  a  view  to  vesting  the 
surrender decision in a judicial authority acting in its 
own right (see 7.3.1.1). 

5.-  Ensure  that  the  requested  person  is  heard  by  the 
OLG  in  cases  where  he  or  she  does  not  consent  to 
surrender (see 7.3.1.2). 

6.-  Take  measures  as  considered  appropriate  to 
ensure  that  legal  assistance  is  provided  to  the 
requested  person  throughout  the  procedure  (see 
7.3.1.3). 

7.-  As  regards  conviction  EAWs,  take  the  necessary 
measures  (e.g.  redrafting  the  implementing  law  or 
producing  guidelines  on  this  particular  issue)  to 
ensure  that  the  outstanding  sentence  to  be  served  is 
not  used  as  a  ground  for  refusal  of  surrender  (see 
7.3.1.4). 

8.-  Amend  the  implementing  legislation  so  that  no 
limitation  applies  to  the  surrender  of  own  nationals 
and  habitual  residents  based  on  their  "legitimate 
expectation"  that  they  would  not  be  surrendered,  or, 
in  cases  of  listed  offences,  on  the  fact  that  the  act 
does not constitute an offence under German law (see 
7.3.1.5). 

9.-  In  those  cases  where  the  German  authorities 
refuse  to  execute  a  conviction  EAW  because  the 
subject is a German national or a permanent resident 
in  Germany  and  does  not  consent  to  surrender,  and 
until  rules  adopted  pursuant  to  the  Framework 

EN 

80 

   EN 

 
 
 
 
 
 
 
 
Decision  2008/909/JHA  apply,  consider  accepting 
the  EAW  itself  as  the  request  required  to  initiate 
proceedings  for  execution  of  the  sentence  (see 
7.3.1.5). 

10.-  Reconsider  the  practice  of  considering  the  lack 
of proportionality as a ground to refuse to execute an 
EAW (see 7.3.1.6). 

11.-  Amend  the  implementing  legislation  so  that  the 
condition  of  reciprocity  does  not  apply  in  EAW 
procedures (see 7.3.1.7). 

12.-  Consider  a  rethink  of  the  logistical  procedures 
for  the  physical  surrender  of  requested  persons  (see 
7.3.1.8). 

General information  

General Council recommendations 2009 

Language flexibility 

- On the basis of reciprocity  

-  In  urgent  cases  a  start  can  be  made  on  the 
basis of a EAW in the language of the issuing 
State if the language is sufficiently understood 
by 
the  competent  public  prosecutor  (in 
practice: English)  

Time limit for translated EAW 

Provisional arrest  

Proportionality test  

40 days 

Yes  

- Issuing: yes  

-  Outstanding  EAWs  are  regularly  reviewed 
and withdrawn when no longer proportional.  

-  Executing:  on  the  basis  of  Article  73  IRG 
surrender  can  be  refused  on  the  basis  that  a 
minimum  proportionality  standard  has  not 
been observed while issuing.  

Is  it  possible  for  a  sought  person  to  get  (state  paid) 
legal  assistance  provided  by  X  in  the  following 
situations: 

(1)  in  X  for  the  underlying  X  criminal  proceedings 
when  he  is  arrested  in  another  Member  State  on  the 
basis of a X EAW and 

(2)  in  another  Member  State,  for  the  underlying 
criminal proceedings when he is arrested in X on the 

EN 

81 

   EN 

 
 
 
 
 
 
 
basis of an EAW of the other state? 

(X = state in the head of the relevant column) 

Accessory surrender 

Yes  

Flagging 

Sirene  bureau  in  cases  where  surrender  is 
obviously  not  permissible;  in  case  of  doubt 
the federal office of justice is consulted.  

Competent authority for Art. 111 Schengen requests 

BundesKriminalamt/Verwaltungsgericht 
Wiesbaden 

Seizure and handover of property 

Principle of direct contacts 

Yes  

Yes  

Integration of recital 12 in implementation law 

Yes and 13 

Dual criminality abolished for attempt and complicity 

4 months requirement  

4 months 

Regime for transfer back 

apply, 

In case of own nationals: the international 
conventions 
i.e.  1983  CoE 
convention  and,  if  it  is  applicable  in 
relation to the relevant EU Member State, 
the  additional  protocol  to  the  1983  CoE 
Convention and Art. 67-69 CISA; in case 
of  persons  with  usual 
in 
Germany:  provisions  of  the  national  law 
on  international  assistance  in  criminal 
matters (Sec. 48 ff.) 

residence 

24/7 rota? 

In case of refusal of surrender for the execution of a 
sentence on the ground that the sought person has the 
nationality, or is a resident of the executing State, is 
execution  of  that  sentence  possible  in  the  executing 
state when there is no dual criminality? 

1983 CoE convention 

Cf. Sec. 80 and 83b para. 2 LIACM 

Age of criminal liability  

14 

Statistics  

Website  

Yes: 2007, 2008 and 2009 

Jurisdiction ECJ 

Yes  

EN 

82 

   EN 

 
 
 
 
 
Case law/preliminary questions  

- Bundesverfassungsgericht 3-9-09 (EuGRZ 2009, 686-691) 

In  case  of  the  surrender  of  own  nationals  (also  if  the  person  has  both  the  nationality  of  Germany  and  of  the 
requesting  State)  on  the  basis  of  a  EAW,  surrender  has  to  be  refused  if,  under  German  law,  the  statute  of 
limitations  prevents  a  prosecution  in  Germany  and  Germany’s  jurisdiction  would  exist  (that  is  the  case  if  the 
person sought is a German national). An interpretation of Sec. 9 No. 2 LIACM [that implements Art. 4 No. 4 of 
the FD EAW] in conformity with the constitution entails that only German acts interrupting the prescription can 
be considered. Whether the prescription has been interrupted or stayed by acts in the issuing State (here: Greece) 
can not be considered. 

- Bundesverfassungsgericht 9-10-2009 (EuGRZ 2009, 691-694)  

Confirmation  of  the  decision  of  the  Federal  Constitutinal  Court  of  3-9-2009  as  regards  time  limitation.  In 
addition:  The  Oberlandesgerichte  (Higher  Regional  Courts)  that  decide  on  the  execution  of  an  EAW  must 
examine  as  carefully  as  possible  whether  the  specific  charges  describe  punishable  behaviour.  They  may  not 
content themselves with merely performing a rough legal review. 

- Bundesgerichtshof 18-2-2010 (4 ARs 16/09 - NStZ-RR 2010, 177) 

Decision  upon  the  referral  of  the  preliminary  question  by  the  Oberlandesgericht  Oldenburg  6-4-2009  (NJW 
2009,  2320).  The  question  was  decided  by  the  Federal  Constitutional  Court  by  its  decision  of  3-9-2009  (see 
above). The decision of the Federal Constitutional Court has binding effect. As a result, surrender of a person 
with both the Polish and the German nationality to Poland on the basis of an EAW for prosecution for offences 
committed in Poland cannot be granted, if prosecution in Germany (that has jurisdiction because of the German 
nationality of the person) is statute barred. Acts interrupting the prescription in the issuing State, that are of a 
nature that also in Germany would have interrupted prescription, can not play a role. 

- Bundesgerichtshof 15-4-08 (BGHSt 52, 191; NJW 2008, 1968) 

Surrender  of  a  German  national  to  Poland  was  not  granted. Although  the  case  could  be  prosecuted  in  Poland, 
under German legislation prosecution was statute barred and also Germany had jurisdiction in this case. 

- Oberlandesgericht Stuttgart 26-6-2009 (AZ.:3 Ausl 175/08) 

Preliminary question to the ECJ: see website of the ECJ, case C-261  

- Oberlandesgericht Celle 20-5-2008 

Surrender for prosecution for possession of a small quantity of cannabis (7 seedlings) refused when in the issuing 
state a life long sentence is eligible. 

- Oberlandesgericht Karlsruhe 13-7-2007 (AZ.: 1 Ars 21/08) 

Refusing surrender relating to prosecution in an in absentia case is not appropriate if the prosecuted person was 
aware of the prosecution, a defence lawyer participated in the trial and the summons to appear in court could not 
be served because the escape of the defendant. This applies only if a sought person is aware of being prosecuted 
and he or she leaves that state to hide away in another state. It can also apply when a sought person deliberately 
ducks out of a situation in which official letters can be assigned. 

- Oberlandesgericht Stuttgart 9-1-2008 (Az.: 3 Ausl 134/07) 

A  'case  of  escape'  means  that  the defendant  deliberately backs out of his  or her obligations  in order  to  escape 
prosecution. The mere fact of changing address within the EU as such cannot qualify a case as 'case of escape'.  

If there is no 'case of escape' the surrender of the prosecuted person to a Member State of the EU for the purpose 
of execution of a criminal sentence rendered in absentia without granting effectively the right for a new trial is 
inadmissible even in the case where, on the basis of the provisions on legal assistance without any treaty of the 
German  law  on  international  legal  assistance  (IRG)  and  the  second  additional  protocol,  the  legal  minimum 

EN 

83 

   EN 

 
standards (in the present case: lack of communication of the prosecuted person with a defence counsel chosen by 
him or her in the requesting state) would have been observed.  

- Oberlandesgericht Köln 27-4-2009 (Az.: 6AuslA 25/08)  

Surrender  should  not  be  refused  in  case  a  life  sentence  is  eligible  and  the  law  of  the  issuing  Member  State 
provides  for  a  possibility  to  apply  for  clemency  in  which  procedure  the  execution  of  the  sentence  can  be 
reviewed.  

- Oberlandesgericht Düsseldorf 5-10-2009 (Az: III-4 Ausl (A) 145/09 – 609/09 III) 

Surrender  refused  in  case  a  review  of  the  penalty  of  life  imprisonment  is  only  possible  after  25  instead  of  20 
years  under  the  law  of  the  issuing  State.  The  general  possibility  of  amnesty  does  not  suffice  for  granting  the 
request. 

- Oberlandesgericht Zweibrücken 2-11-2009 (Az: 1 Ausl 17/08) 

If the request for extradition is extended by the issuing State beyond the criminal offence in the EAW the general 
rules  of  the  national  extradition  law  apply.  Another  EAW  is  not  necessary,  a  document  that  describes  the 
additional criminal charge against the person sought is enough. 

- Oberlandesgericht Stuttgart 25-2-2010 (NJW 2010, 1617-1619) 

Surrender to Spain because of drug offences was not refused, but the Court must consider the following while 
executing a EAW: 

Art.  49  para.  3  of  the  Charter  of  Fundamental  Rights  of  the  European  Union  (laying  down  the  principle  of 
proportionality in connection with criminal offences and penalties) may prevent the surrender to a EU Member 
State upon a EAW if the expected penalty in the issuing State would be intolerably severe. 

The  order  of  an  extradition  arrest  (upon  a  EAW),  that  is  provided  by  the  national  law,  must  fully  respect  the 
principle of proportionality as laid down in the German constitution. As a result, the enforcement of an EW may 
not be appropriate if the alleged offence is of minor importance and the expected sentence is disproportioned to 
the charge of detention for purpose of surrender. 

- Oberlandesgericht Hamm 25-2-2010 (Az: (2) 4 Ausl A 163/08 and 89/09) 

Surrender currently refused because of ordre public: The principle of proportionality and fundamental rights of 
the person sought must equally be respected in the surrender procedure as in the national procedure. The interest 
of prosecution of the issuing State must be weighed up with the right to private and family life as laid down in 
Art. 8 ECHR and Art. 6 of the Basic Law.  

COM Implementation Report of 2007 

DE  has  transposed  correctly  only  article  24(1), 
and  does  not  provide  for  temporary  surrender 
pursuant to article 24(2). 

In practice no difficulties were recorded. 

EN 

84 

   EN 

 
 
 
11. GREECE 

Recommendations EAW report 20-10-2008 

Follow up report 31-7-09 and 28-07-2010 

Since 1 April 2007 no amendments related to 
the application of the EAW have been made. 

The  Ministry  of  Justice,  Transparency  and 
Human  Rights  circulated  after  the  fourth 
round  of  mutual  evaluations  to  all  Public 
Prosecutors’  Offices  at  the  Court  of  Appeal 
the evaluation report on Greece regarding the 
practical  application  of  the  EAW.  The  Greek 
Ministry  urged  the  Prosecutors  to  take  into 
account, when dealing with EAW matters, the 
recommendations  addressed  both 
the 
to 
member states and to Greece individually. 

Furthermore,  a  Special  Working  Party  is 
going  to  be  established  at  the  Ministry  of 
Justice,  Transparency  and  Human  Rights  in 
order  to  proceed  to  the  necessary  legal 
amendments so that the relevant provisions on 
EAW  comply  with 
the  recommendations 
addressed in the evaluation report.  

No  national  guidelines  or  handbooks  have 
been issued, however, the European handbook 
on  how  to  issue  a  EAW  has  been  distributed 
to  all  Public  Prosecutor's  Offices  of  the 
country. 

(13416/1/08 REV 2 CRIMORG 146) 

New Developments 

1.-  Produce  written  guidelines  with  the  involvement 
of practitioners to provide detailed guidance on how 
the  Greek  implementing  law  should  be  applied  in 
practice (see 7.1.1). 

2.-  Review  the  conformity  of  the  implementing  law 
with  the  Framework  Decision,  as  well  as  the 
correlation between the former and domestic criminal 
procedural  law,  and  fill  the  gaps  where  appropriate 
(see 7.1.1). 

3.-  Consider  establishing  a  pool  of  judges  and 
prosecutors in each Court of Appeal to handle EAW 
cases (see 7.1.2). 

4.-  Establish  mechanisms  to  ensure  the  appropriate 
coordination  among  prosecution  offices  with  a  view 
to  avoiding  divergent  practices  in  the  processing  of 
EAWs  and  promoting  a  common  understanding  of 
the relevant legislation (see 7.1.3). 

to  ensure 

5.-  Take  measures 
that  accumulated 
experience relating to EAW matters be disseminated 
effectively  to  all  practitioners,  e.g.  by  drawing  up  a 
handbook,  providing  extensive  and  regular  training 

EN 

85 

   EN 

 
 
 
 
 
and/or establishing centres of expertise, as a means of 
improving the efficiency of the system (see 7.1.4). 

6.-  Organize training  in  basic  foreign  legal  language 
for judges and prosecutors, enabling them to establish 
direct contacts with their partners abroad in the most 
commonly spoken languages (see 7.1.5). 

tools  aimed  at  modernizing 

7.-  Establish 
the 
processing of EAW files and the information related 
thereto (see 7.1.6). 

8.-  Ensure  that  an  EAW  is  only  issued  when  the 
objective  sought  can  not  be  achieved  by  using  other 
forms  of  (mutual  legal)  assistance  less  intrusive  for 
the individual (see 7.2.1.1). 

9.-  Set  up  appropriate  mechanisms  to  deal  with 
urgent  EAW  matters  at  weekends  and  on  official 
holidays, e.g. by introducing a 24/7 duty scheme for 
the  Public  Prosecutor's  Offices  at  the  Courts  of 
appeal (see 7.2.1.2). 

that  existing  SIS  alerts  based  on 
10.-  Ensure 
International  Arrest  Warrants 
(where 
appropriate)  INTERPOL  alerts  based  on  EAWs  are 
replaced  with  SIS  alerts  based  on  EAWs  (see 
7.2.1.3). 

and 

11.-  Correct  the  current  practice  of  the  Public 
Prosecutors  at  the  Courts  of  Appeal  of  exercising 
powers  not  envisaged  in  the  implementing  law  to 
refuse the execution of EAWs (see 7.3.1.1). 

12.-  Reconsider  the  current  situation  where  the 
initiation  of  the  court  procedure  for  a  decision  on 
surrender  de  facto  depends  on  the  decision  of  the 
Public Prosecutor at the Court of Appeal to arrest the 
requested person (see 7.3.1.1). 

13.-  Amend  the  implementing  law  to  conform  with 
the  Framework  Decision  with  respect  to  the  list  of 
offences  not  covered  by  the  double  criminality  test 
(see 7.3.1.2). 

14.-  Amend  the  implementing  law  to  conform  with 
the Framework Decision with respect to the grounds 
for optional non-execution of EAWs (see 7.3.1.3 and 
7.3.1.5). 

15.- Reconsider the inclusion of Article 11 paragraph 
e)  as  a  ground  for  refusal  in  the  implementing  law 
(see 7.3.1.4). 

EN 

86 

   EN 

 
 
 
 
 
 
 
 
 
 
 
In  connection  with 

recommendation  9, 
16.- 
reconsider,  in  the  light  of  domestic  legislation,  the 
validity  of  the  current  practice  of  extending  the 
period  of  arrest  at  weekends  and  on  public  holidays 
beyond 24 hours (see 7.3.1.6). 

17.- Fill the current gap in Greek law as regards the 
right of a person arrested on the basis of an EAW to a 
state-paid lawyer (see 7.3.1.7). 

18.-  In  the  meantime,  ensure  that  the  requested 
person  is  duly  informed  of  his  rights  immediately 
after the arrest and provided with a quality linguistic 
assistance  where  necessary  (see  7.3.1.7  and  chapter 
6). 

19.- Amend Article 15.2 of the implementing law so 
that the requested person is provided with free copies 
of the relevant file documents (see chapter 6). 

20.- Adopt the necessary measures to ensure that the 
requested person can effectively exercise his right to 
appeal the court's decision on surrender (see 7.3.1.8). 

21.-  Amend  Article  19  of  the  implementing  law  to 
allow  the  court  to  establish  direct  contacts  with  the 
issuing  authorities  without  the  intervention  of  the 
Prosecutor  General  at  the  Court  of  Appeal  (see 
7.3.1.9). 

General information  

General Council recommendations 2009 

Language flexibility 

-  English 
proceedings and additional information 

text  accepted 

for 

initiating 

- all issued EAWs are translated in English 

Time limit for translated EAW 

Provisional arrest  

Proportionality test  

Yes, 24 hours 

No 

Is  it  possible  for  a  sought  person  to  get  (state  paid) 
legal  assistance  provided  by  X  in  the  following 
situations: 

(1)  in  X  for  the  underlying  X  criminal  proceedings 
when  he  is  arrested  in  another  Member  State  on  the 
basis of a X EAW and 

EN 

87 

   EN 

 
 
 
 
 
 
 
 
 
 
 
(2)  in  another  Member  State,  for  the  underlying 
criminal proceedings when he is arrested in X on the 
basis of an EAW of the other state? 

(X = state in the head of the relevant column) 

Accessory surrender 

No  

Flagging 

-  Sirene  bureau  under  supervision  of  the 
prosecutor. 

-  All  incoming  alerts  are  checked  with 
assistance  of  judges  or  prosecutors  seconded 
to the Sirene bureau 

Competent authority for Art 111 Schengen requests 

Seizure and handover of property 

yes 

Principle of direct contacts 

Via prosecutor 

Integration of recital 12 in implementation law 

Yes and 13;  

Dual criminality abolished for attempt and complicity  Yes  

4 months requirement 

Cf FD 

Regime for transfer back 

Article 5(3) of the FD 

24/7 rota? 

In case of refusal of surrender for the execution of a 
sentence on the ground that the sought person has the 
nationality, or is a resident of the executing State, is 
execution  of  that  sentence  possible  in  the  executing 
state when there is no dual criminality? 

Age of criminal liability 

Statistics 

Website 

Yes: 2007 and 2008 

Jurisdiction ECJ 

Yes 

Case law/preliminary questions : 

Decisions  on  EAW  by  the  Supreme  Court  of  the  Hellenic  Republic  are  systematically  sent  to  the 
Council. 

COM Implementation Report of 2007 

EN 

88 

   EN 

 
 
 
 
 
 
 
 
Implementation of recitals 12/13 goes beyond the 
FD and therefore creates the risk that a EAW will 
be refused on the basis of grounds not envisaged 
in  the  Framework  Decision  (an  activity  for  the 
cause of freedom) 

EN 

89 

   EN 

 
 
 
12. HUNGARY  

Recommendations EAW report 14-1-2008 

Follow up 27-8-2009 and 30-07-2010 

(15317/2/07 REV 2 CRIMORG 174) 

New developments 

1 - In view of Article 8(1)(c) of the FD and box (b) of 
the  EAW  form,  to  consider  amending  its  national 
legislation  to  require  that  the  issue  of  an  EAW  for 
prosecution  purposes 
is  always  preceded  by  a 
national arrest warrant or another enforceable judicial 
decision having the same effect (see 7.2.1.1). 

2 - To amend Section 26 of Act No CXXX of 2003 to 
ensure that in those cases in which an EAW is issued 
to  replace  a  pre-existing  international  arrest  warrant, 
the  date  of  issue  of  the  EAW  is  clearly  indicated  in 

Latest modification of the Hungarian Act No CXXX 
of 2003 on cooperation in criminal matters with the 
Member States of the European Union was made by 
Act No LXXX of 2008. These amendments, which 
relate  to  the  EAW,  entered  into  force  on  8  January 
2009.  

Hungary  did  not  amend  its  national  legislation  in 
this  regard,  since  in  its  view  it  is  in  line  with  the 
Framework Decision.  

Hungarian  European  arrest  warrants  are  always 
issued by a judge. The basis of the European arrest 
warrant  may either be the motion of the prosecutor 
or a final sentence or the judge can even decide on 
issuing a European arrest warrant ex officio.  

It has to be emphasised that problems in this regard 
with  other  Member  States  have  been  solved 
bilaterally.  

Section  25  (1)  of  Act  CXXX  of  2003  on  the  Co-
operation  with  the  Member  States  of  the  European 
Union  in  Criminal  Matters  says  that  „If  criminal 
proceedings  must  be  conducted  against  an  accused 
who  is  staying  in  a  Member  State  of  the  European 
Union,  the  court  shall  without  delay  issue  a 
European arrest warrant. If an accused is sentenced 
to  imprisonment  on  basis  of  a  final  judgment,  the 
judge responsible for penitentiary affairs shall issue 
the European arrest warrant.”  

According to Section 25(7) of the above mentioned 
Act, the European arrest warrant is also effective on 
the  territory  of  Hungary,  which  means  that  a 
European  arrest  warrant  (issued  by  a  Hungarian 
court) has to be considered also as a national arrest 
warrant. As a result of this, there is no need to issue 
a  separate  national  or  international  arrest  warrant, 
since  the  European  arrest  warrant  issued  by  a 
Hungarian  court  is  the  national  arrest  warrant  as 
well.  

Section  26  has  been  repealed  by  Act  No  LXXX  of 
2008. 

EN 

90 

   EN 

 
 
the EAW form (see 7.2.1.3). 

3 - To consider setting up appropriate mechanisms to 
deal  with  urgent  EAW  matters  at  weekends  and  on 
official holidays (see 7.2.1.4). 

initiating 

competent 

authorities 

4  -  To  consider  establishing  mechanisms  that  allow 
criminal 
the 
proceedings  against  a  person  surrendered  for  an 
offence  committed  before  the  surrender  which  was 
not covered by the EAW, to check the conditions of 
the surrender in good time, with a view to respecting 
the speciality principle (see 7.2.1.6). 

5  -  In  the  context  of  its  practice  of  executing  a 
simplified  surrender  on  the  basis  of  an  Interpol  alert 
issued  by  another  Member  State,  ensure  that  the 
information available is the same as that included in 
the EAW (see 7.3.1.1). 

Hungary does not intend to set up any mechanism to 
deal with urgent EAW matters at weekends and on 
official  holidays  as  far  as  the  central  authority 
(Ministry)  is  concerned.  At  SIRENE,  in  prosecutor 
offices  and  courts  are  always  available  official, 
prosecutor  or  judge  on  duty  even  at  weekends  and 
on  official  holidays.  Instead  of  setting  up  such 
mechanism,  we  are  of  the  opinion  that  time  limits 
should  be 
for 
rationalized in Member States 

translated  EAWs 

receiving 

Hungary  does  not  intend  to  set  up  any  mechanism 
with  a  view  to  respecting  the  speciality  rule.  It  is 
always respected on case-by-case basis 

Simplified surrender is possible on the basis of §12 
of  Act  No  CXXXX  of  2003  on  cooperation  in 
criminal  matters  with  the  Member  States  of  the 
European Union.  

Section  12.  (1)  The  Metropolitan  Court  shall  order 
the arrest for surrender and the surrender (simplified 
surrender) of the requested person if 

a) the conditions for the execution of the European 
arrest warrant and surrender are met, and 

b)  the  requested  person  –  following  appropriate 
warning  –  consents  to  his  or  her  surrender;  in  this 
case the warning and consent, and if applicable the 
express  renunciation  of  the  application  of  the 
speciality  rule  referred  to  in  Section  31,  shall  be 
recorded formally in minutes. 

(2)  An  alert  in  the  Schengen  Information  System 
shall  be  equivalent  to  a  European  arrest  warrant 
accompanied by the information set out in point a)-
e) of para (1) of § 6 and § 14 of the Act No CV of 
2007.  

(3) The consent defined in paragraph (1) cannot be 
withdrawn.  

(4)  An  order  for  simplified  surrender  is  not  subject 
to appeal./ 

6  -  To  take  appropriate  measures  to  ensure  that  the  The  execution  of  an  EAW  can  only  be  refused  on 

EN 

91 

   EN 

 
 
 
execution  of  an  EAW  may  only  be  refused  on 
grounds expressly provided in the implementing law 
(see 7.3.1.3). 

grounds expressly provided in the implementing law 
which  cannot  give  any  possibility  to  the  executing 
judicial authority for different interpretation.  

NB  the  evaluation  report  states  (7.3.1.3)  among 
judges  no  common  view  exists  that  no  additional 
grounds  may  be  applied  on  the  basis  of  national 
legislation or general principles of HU law 

7 - To amend Section 4(c) of Act No CXXX of 2003 
to  bring  it  into  line  with  Article 4(4)  of  the  FD  (see 
7.3.1.4).  

Section  4  (c)  has  been  amended  by  Act  No  LXXX 
of  2008  in  order  to  bring  it  into  line  with  Article 
4(4) of the FD. The provision reads now: 

8  -  To  amend  its  national  legislation  so  that,  in  the 
event  of  sentences  passed  against  Hungarian 
nationals  in  other  Member  States  for  offences  not 
punishable under Hungarian law, it either surrenders 
the  persons  or  executes  the  imprisonment  sentences 
imposed by other Member States' courts (see 7.3.1.6). 

9  -  To  amend  its  national  legislation  so  that  the 
specific  arrangements  covering  Hungarian  nationals 
resident  in  Hungary  against  whom  sentences  have 
been  passed  in  other  MSs  by  decisions  taken 
in absentia are abolished (see 7.3.1.7). 

“The execution of the European arrest warrant shall 
be refused:  

c)  where  the  criminal  prosecution  or  penalty  is 
statute-barred  according  to  the  law  of  the  Republic 
of Hungary, subject to the condition that the act on 
which the EAW is based falls within the jurisdiction 
of Hungary (Section 3 and 4 of the Criminal Code)” 

According  to  Section  5(1)  of  Act  No.  CXXX  of 
2003  the  execution  of  the  European  arrest  warrant 
shall be refused and measures shall be taken for the 
execution  of  the  sentence  or  detention  order  where 
the European arrest warrant has been issued for the 
purposes  of  executing  a  custodial  sentence  or 
detention  order,  and  the  requested  person  is  a 
Hungarian national resident in Hungary. 

This provision is not subject to any amendment. 

According  to  §57(4)  of  the  Constitution  „No  one 
shall be declared guilty and subjected to punishment 
for an offence that was not a criminal offence under 
Hungarian  law  at  the  time  such  offense  was 
committed”.  The  application  of  the  principle  of 
nulla poena sine lege is deriving from the Hungarian 
Constitution. 

A  Hungarian  national  resident  in  Hungary  and 
sentenced in absentia abroad cannot be surrendered, 
even  if  a  guarantee  of  a  retrial  is  given.  In  such  a 
case  the  EAW  is  sent  to  the  General  Prosecutor’s 
Office for consideration of the initiation of criminal 
proceedings  or 
taking  any  other  appropriate 
measures. It is stipulated by the Act No XXXVIII of 
1996 on international assistance in criminal matters 
which is a background legislation concerning EAW 
cases.  

General information  

EN 

92 

   EN 

 
 
 
 
 
General Council recommendations 2009 

Language flexibility 

Yes 

Time limit for translated EAW 

40 days from arrest 

Provisional arrest  

Yes, 72 hours (Section 11(1) c) of Act No. CXXX of 
2003)  as  police  detention  and  then  40  days  from 
ordering  the  provisional  arrest  for  surrender  by  the 
Capital Court 

Proportionality test  

No (principle of legality) 

Is  it  possible  for  a  sought  person  to  get  (state  paid) 
legal  assistance  provided  by  X  in  the  following 
situations: 

(1) yes (§ 46b CCP) 

(2) No  

(1)  in  X  for  the  underlying  X  criminal  proceedings 
when  he  is  arrested  in  another  Member  State  on  the 
basis of a X EAW and 

(2)  in  another  Member  State,  for  the  underlying 
criminal proceedings when he is arrested in X on the 
basis of an EAW of the other state? 

(X = state in the head of the relevant column) 

Accessory surrender 

Issuing: not possible  

Executing:  possible  if  dual  criminality  (Section 
3(4)) 

Flagging 

Competent  authority  for  Article  111  Schengen 
requests 

applicable 

applicable 

Seizure and handover of property 

yes 

Principle of direct contacts 

Direct  transmission  of  an  EAW  between  judicial 
authorities  is  not  permitted;  the  MoJ  has  been 
designated for this task. 

Integration of recital 12 in implementation law 

No specific provision provided by Act No CXXX of 
2003, however its background legislation – Act No 
XXXVIII  of  1996  on  international  cooperation  in 
criminal  matters  –  contains  the  following  provision 
in  §7:  The  Minister  of  Justice  or  the  Chief  Public 
Prosecutor  may  make  the  performance  of  requests 
if 
for 
the 
these  conditions 
fulfillment  of 
aforementioned  parties  may  refuse  the  request,  if  it 
can  be  assumed  that  the  proceedings  underway  in 

to  conditions; 
is  denied, 

legal  assistance  subject 

EN 

93 

   EN 

 
 
the Foreign State, the prospective punishment or the 
the 
is 
enforcement  of  such 
Constitution  and  with  the  provisions  and  basic 
principles  of  international  law  on  the  protection  of 
human  rights.  (This  provision  shall  be  applied 
mutatis mutandis concerning surrender procedures.) 

inconsistent  with 

Dual criminality abolished for attempt and complicity  Yes 

4 months requirement  

Act  No  CXXX  of  2003  contains  the  relevant 
provision concerning the 4 months requirement in § 
25 (2) in the following way: Where a sentence or a 
detention order has been imposed, a European arrest 
warrant  may  only  be  issued  if  the  sentence  or 
detention order imposed is of at least four months. 

Regime for Transfer back 

24/7 rota 

In case of refusal of surrender for the execution of a 
sentence on the ground that the sought person has the 
nationality, or is a resident of the executing State, is 
execution  of  that  sentence  possible  in  the  executing 
state when there is no dual criminality?  

Age of criminal liability 

Statistics  

Website  

No 

14 

2007 and 2008: yes 

Jurisdiction ECJ 

Yes 

Case law/preliminary questions: -  

COM Implementation Report of 2007 

Deduction of the period of detention served in the 
executing Member State:  

HU  has  not  transposed  Article  26  FD  in  the 
notified legislation. 

Section 29 of Act No CXXX of 2003 reads as follows: 

“Section  29.  All  periods  of  detention  served  abroad 
pursuant  to  the  execution  of  a  European  arrest  warrant 
shall  be  deducted  from  the  total  custodial  sentence  or 
detention order imposed by the court.” 

Principle of direct contacts 

HU does not allow direct transmission.  

EN 

94 

   EN 

 
 
 
 
 
 
 
13. IRELAND  

Recommendations EAW report 5-10-2006 

Follow up report 6-10-2009,  

(11843/2/06 REV 2 CRIMORG 129 + COR 1) 

New Developments 

1 - To monitor the work flow of the various phases of 
the  issue  of  EAWs  so  that  any  delays  which  may 
arise during the process may be more easily observed 
and rectified. (See 7.2.1.1) 

2 - To assess whether increased staffing levels in the 
EAW Unit and possibly the Directing Division of the 
ODPP would lead to a corresponding decrease in the 
time 
to  perfect  applications  for  EAWs, 
particularly in respect of the provision of advice and 
the  detail  of  domestic 
assistance  pertaining 
precursor warrants. (See 7.2.1.2) 

taken 

to 

3 - To undertake a coordinated inter-agency analysis 
of  the  potential  volumetric  and  procedural  impacts 
that accession to SIS may involve. (See 7.3.1.1) 

New  legislation  implemented  on  25  August 
2009  amending  the  EAW  Act  and  adapted 
administrative  procedures  (Criminal  Justice 
(Miscellaneous Provisions) Act 2009) 

A  guide  for  practitioners  in  other  Member 
States  on  how  to  proceed  in  transmitting  a 
EAW  to  Ireland  has  been  available  on  the 
Department  of  Justice,  Equality  and  Law 
Reform's  website  for  a  number  of  years  and 
has  been  updated 
following 
implementation of the amending legislation. 

in  2009 

The  Office  of 
the  Director  of  Public 
Prosecutions and the Garda Siochana have put 
in place procedures to monitor the work flow 
in  the  issuing  of  EAWs  which  ensure  that 
delays are minimised. 

As volume has increased, staffing level in the 
Office  of  the  Director  of  Public  Prosecutor 
has  been  correspondingly  increased  to  ensure 
the  smooth  operation  of  the  system  for  the 
application  for  European  arrest  warrants. 
There  are  currently  7  legal  staff  in  the 
Division.  Staffing  levels  are  constantly  kept 
under review. 

The agencies involved in the operation of the 
European  arrest  warrant  set  up  a  group  to 
analyse  future  needs 
the 
implementation  of  SIS  II,  and  a  number  of 
meetings have taken place.  

in  relation 

to 

In  anticipation  of  an  agreement  on  SIS  II, 
legal  provisions  have  been 
implemented 
(Criminal  Justice  (Miscellaneous  Provisions) 
Act 2009) which give effect in national law to 
the Council Decision on SIS II. . 

4  -  To  ensure  legislative  clarity  in  respect  of  a 
positive  assertion  that  Interpol  and  e-mail  channels 
may  be  utilised  for  the  purposes  of  transmitting 
EAWs to Ireland (under consideration). (See 7.3.1.2) 

Amendment to section 12(1) EAW act:  

“(b) any means capable of producing a written 
record  under  conditions  allowing  the  Central 

EN 

95 

   EN 

 
 
 
5 - To consider implementing systems to ensure that 
mobile  officers  are  given  real  time  access  to  data 
contained on the PULSE system. (See 7.3.1.3) 

Authority 
in 
authenticity.” 

the  State 

to  establish 

its 

Garda Siochana has put new systems in place 
including  a  database  storing  details  of  all 
European  Arrest  Warrants  which  allows  for 
access to and the monitoring of progress in all 
cases.  

A devolved execution of warrants system has 
also  been  put  in  place  which  allows  warrants 
to be executed in the Garda Divisions at local 
level. A facility on the internal intranet 'Garda 
Portal'  allows  all  operational  personnel  to 
view the warrants and to obtain a copy of the 
warrant 
the  event  of 
execution. 

immediately 

in 

6 - To restrict the mandate of the CA so as to bring it 
into  strict  compliance  with  the  role  perceived  in 
Articles  7  paragraph  2,  10  paragraph  5  and  15 
paragraph 2 of the FD. (See 7.3.1.4) 

The  Irish  Supreme  Court  has  ruled  (Rodnov) 
that  the  Central  Authority  must  ensure  that 
warrants  are  correct  in  form  and  content 
before being brought before the High Court.  

to 

In 

An  amendment 
the  European  Arrest 
Warrant  Act  2003  (see  Recommendation  11) 
on  technical  and  minor  errors  has  modified 
the  need  for  correction/re-issue  of  warrants 
and  reduced  the  time  spent  on  checking 
incoming  warrants. 
addition,  good 
the  Central 
between 
communications 
Authority  and  other  Member  States,  and 
increasing  familiarity  with  the  needs  of  each 
Member  State,  has  led  over  time  to  an 
improvement  in  the  completion  of  warrants. 
European  arrest  warrants  are  currently  being 
endorsed,  on  average,  within  two  weeks  of 
receipt. 

7  -  To  reassess  whether  the  endorsement  process  is 
necessary, sufficiently rapid and compatible with the 
FD and, to the extent that it is not, to consider ways 
and means to bring the procedures into line with the 
FD  while  respecting  the  Irish  constitutional  system. 
(See 7.3.1.5) 

An analysis of all the issues involved has not 
yet been completed but the legal provision in 
the  European  Arrest  Warrant  Act  2003  in 
relation  to  the  need  for  endorsement  is 
currently being examined. 

8 - To consider broadening the powers of the Gárda 
Síochána  so  as  to  provide  them  with  discretionary 
powers  to  photograph  and  fingerprint  requested 
persons on arrest. (See 7.3.1.6) 

An  amendment  to  section  20(b)  EAW  Act 
provides  that  fingerprints,  palm  prints  and 
photographs  may  be  taken  for  identification 
purposes. 

9  -  To  consider  whether  the  creation  of  a  further 
practice note would be of assistance in particularising 
those  circumstances  in  which  the  JA  might  consider 
it appropriate to grant an application, by the defence 
or by the State, to adjourn the commencement of the 

Adjournments  are  granted  in  the  interests  of 
justice.  It  is  constitutionally  impermissible  to 
bind  the  discretion  of  the  judiciary.  The 
issuing  of  Guidelines  would  not  therefore  be 
considered appropriate. However, it should be 

EN 

96 

   EN 

 
surrender hearing (beyond 21 days from arrest). (See 
7.3.1.7) 

10  -  To  undertake  a  review  of  practice  and 
procedures  for  initial  surrender  hearings  in  order  to 
explore  how  they  may  be  streamlined  and  brought 
more  closely  into  line  with  the  spirit  of  the  FD  and 
with  principles  of  mutual  trust  between  judicial 
authorities. (See 7.3.1.7) 

11 - To ensure that only grounds for refusal permitted 
the  FD  and  not  minor  administrative, 
under 
typographical or other comparable errors on the face 
of  the  EAW  are  the  basis  for  a  refusal  of  surrender 
and  to  limit  requests  for  redrafts  or  reissue  of  new 
EAWs to what is absolutely necessary. (See 7.3.1.8) 

noted  that  adjournments  are  strongly  resisted 
by  the  State  unless  there  are  compelling 
reasons for them. 

See  the  previous  response  in  relation  to 
practice and procedures in the Courts. 

The  principal  issue  raised  in  relation  to  this 
recommendation  is  cross-examination,  which 
the  European  Arrest 
is  permitted  under 
Warrant  Act 
a 
constitutional  right.  However,  as  pointed  out 
previously,  the  leave  of  the  Court  is  required 
to  cross-examine  and  the  relevance  must  be 
clearly established.  

2003.  This 

reflects 

Section  40  of  the  European  Arrest  Warrant 
Act  2003,  provided  a  ground  for  refusal  in 
relation  to  lapse  of  time.  This  provision 
transposed  an  optional  ground  for  refusal 
under Article 4.4 of the Framework Decision. 
The provision has now been deleted. (section 
19  of  the  Criminal  Justice  (Miscellaneous 
Provisions) Act 2009.) 

to 

the  European  Arrest 
An  amendment 
Warrant Act 2003 also deals with the issue of 
minor or technical errors (Section 20(b) of the 
Criminal  Justice  (Miscellaneous  Provisions) 
Act  2009.)  Consequently,  redrafts  or  reissue 
of  new  European  arrest  warrants  have  been 
limited to those that are absolutely necessary. 

12  -  To  undertake  a  review  of  the  appeal  remedies 
available  to  requested  persons,  in  order  to  explore 
how  those  rights  may  be  streamlined  and  brought 
more closely into line with the time limits set out in 
the  FD  and  to  ensure  adequate  notification  of  any 
breaches to Eurojust. (See 7.3.1.9) 

-  An  amendment  in  section  11  Criminal 
Justice  (Miscellaneous  Provisions)  Act  2009 
limits 
the 
the  possibilities  of  appeal 
Supreme Court to points of law of exceptional 
public importance. The High Court must give 
leave to appeal.  

to 

13  -  To  examine  whether  practical  measures  can  be 
put in place to accelerate payments  made to defence 
counsel  in  respect  of  properly  submitted  fee  notes. 
(See 7.3.1.10) 

- the central authority monitors pending cases 
on a weekly basis and notifies Eurojust where 
relevant 

Every  effort 
payment.  

is  made 

to  ensure  prompt 

When parity is established and all documents 
in  relation  to  fees  have  been  submitted  and 
verified, an order for payment is made and the 
payment is issued within two weeks.  

14 - To ensure that statistical records in respect of all 
aspects  of  the  EAW  process  (i.e.  from  receipt)  are 
maintained  and  reviewed  at  the  bi-monthly  inter 

The  Central  Authority's  database  records  all 
actions  taken  on  European  arrest  warrants. 
Reports  can  be  produced  at  any  time  and  are 

EN 

97 

   EN 

 
 
agency  meetings  so  that  matters  arising  may  be 
identified  and  remedied  on  a  regular  basis.  (See 
7.3.1.3) 

15 - To ensure that Irish authorities involved in EAW 
processing  are  familiar  with  the  operation  of  the 
EAW  in  other  Member  States  and  in  particular  with 
the  constraints  on  foreign  judicial  authorities  as 
regards  their  ability  to  amend  or  reissue  existing 
EAWs. (See 7.3.1.12) 

used  to  monitor  progress  and  identify delays. 
The  Central  Authority  circulates  Reports  in 
advance of the bi-monthly meetings so that all 
parties  are  fully  aware  of  issues  arising.  Any 
problems  which  arise  are  discussed  at  the 
meeting. 

The  database  is  also  regularly  updated  to 
capture  fields  identified  as  necessary  to  the 
efficient  management  of  the  operation  of  the 
European  arrest  warrant,  or  in  response  to 
legislative changes. 

in  other  Member 

The  Central  Authority  has  built  up  a 
considerable  amount  of  knowledge  about  the 
systems 
states.  The 
Evaluation Reports have also been a valuable 
tool  in  raising  awareness  about  practice  in 
other Member States. Members of the relevant 
agencies  continue  to  attend  meetings  and 
training  courses  in  Europe  to  ensure  full 
knowledge  of  developments  and  problems. 
The  Central  Authority  liaises  with  authorities 
of  other  member  states,  as  necessary,  to 
establish good practice in relation to European 
arrest warrants. 

that 

16  -  In  respect  of  those  Member  States  (including 
Ireland)  who  rely  upon  the  Transfer  of  Sentenced 
Persons  regime  or  the  like  for  the  surrender  of  own 
nationals, 
those  States  consider  between 
themselves  whether  an  agreed  form  of  undertaking 
(for example that they would not seek to impede the 
return  of  an  own  national/prisoner,  should  that 
individual  wish  to  return  to  his  country  of  origin) 
would  suffice  to  satisfy  any  undertakings  required 
pursuant  to  Article  5  paragraph  3  of  the  FD.  (See 
7.2.1.3) 

to  provide 

The  European  Arrest  Warrant  Act  2003  has 
been  amended 
that,  where 
surrender  is  subject  to  the  condition  that  the 
person  be  returned  to  the  executing  state  to 
serve  any  sentence  imposed  in  the  issuing 
state,  and  where  the  person  consents  to  his 
return,  the  Minister  will  issue  a  warrant  for 
the  transfer  of  that  person  to  the  executing 
state  following  final  determination  of  the 
proceedings.  (section  20(b)  of  the  Criminal 
Justice (Miscellaneous Provisions) Act 2009.)  

Ireland,  therefore,  no  longer  relies  on  the 
Transfer of Sentenced Persons regime and can 
offer a guarantee on the basis of the European 
Arrest Warrant Act 2003. 

General information  

General Council recommendations 2009 

Language flexibility 

No (Irish or English) 

Time limit for translated EAW 

Ireland  must  receive  the  translated  EAW  at 
the  same  time  as  the  original  language 

EN 

98 

   EN 

 
 
 
Provisional arrest  

Proportionality test  

Is  it  possible  for  a  sought  person  to  get  (state  paid) 
legal  assistance  provided  by  X  in  the  following 
situations: 

(1)  in  X  for  the  underlying  X  criminal  proceedings 
when  he  is  arrested  in  another  Member  State  on  the 
basis of a X EAW and 

warrant. 

No  

Yes,  carried  out  by  Garda  Siochana  (Irish 
Police  Force  )  and  the  Director  of  Public 
Prosecutions 

(1)  As  court  proceedings  in  Ireland  will  be 
stayed pending the execution of the domestic 
warrant  upon  which  the  EAW  is  based,  it  is 
envisaged  that  the  issue  of  funding  legal 
assistance  in  Ireland  would  be  rare.  Where  it 
does arise, such assistance may be covered by 
legal aid depending on the circumstances 

(2)  in  another  Member  State,  for  the  underlying 
criminal proceedings when he is arrested in X on the 
basis of an EAW of the other state? 

(2) No 

(X = state in the head of the relevant column) 

Accessory surrender 

Under conditions (see case law) 

Flagging 

Competent authority for Art.111 Schengen requests 

Seizure and handover of property 

- 

- 

Yes 

Principle of direct contacts 

No direct transmission 

Integration of recital 12 in implementation law 

Dual criminality abolished for attempt and complicity 

Yes  (and  all  other  recitals,  section  15(1)(c) 
and 16(1)(e) EAW Act 2003) 

In practice verification of dual criminality is 
not sought in respect of the inchoate versions 
of the list offences  

4 months requirement  

Yes 

Regime for transfer back 

Justice 
Section  20(b)  of 
(Miscellaneous  Provisions)  Act  2009  (see 
recommendation 16)  

the  Criminal 

- not possible without consent of the person  

24/7 rota? 

Yes 

In case of refusal of surrender for the execution of a 
sentence on the ground that the sought person has the 
nationality, or is a resident of the executing State, is 
execution  of  that  sentence  possible  in  the  executing 
state when there is no dual criminality? 

The Irish implementing legislation did not 
transpose  Article  4(6)  as  a  ground  for 
refusal.  There  is  no  restriction  on  the 
surrender of Irish national/residents 

EN 

99 

   EN 

 
Age of criminal liability  

Statistics  

Website 

12 years 

2007 and 2008: yes 

www.justice.ie 

E-mail: warrantsmail@jsutce.ie 

Jurisdiction ECJ 

No 

Case law/preliminary questions  

ECtHR (Application No. 56588/07) Robert Stapleton v Ireland delivered 4th May 2010.  

In  this  case  the  ECtHR  considered  an  appeal  of  an  Irish  Supreme  Court  decision  to  surrender  a 
requested  person  to  the  UK  for  alleged  fraud  offences  that  had  occurred  27  years  previously  on  the 
grounds that the delay (27 years) between the alleged (fraud) offences and the prosecution created a 
real  risk  that  he  would  not  receive  a  fair  trial,  thus  offending  article  6  ECHR  Convention,  which 
provides  inter  alia  for  a  "fair...hearing  within  a  reasonable  time."  The  ECtHr  rejected  the  requested 
person's complain complaint under Article 6 as manifestly unfounded on the basis that the facts don't 
support a finding that there would be a "flagrant denial" of Article 6 rights in the UK upon surrender. 
The ECtHR then set out reasons for not accepting that the executing state should go beyond a "flagrant 
denial"  and  look  at  whether  there  was  a  "real  risk  if  unfairness  in  the  criminal  proceedings  in  the 
issuing state)" 

Composite sentences (Minister for Justice, Equality and Law Reform v Ferenca.)  

The  Supreme  Court  has  held  that  if  an  offence  which  does  not  correspond  to  an  offence  in  this 
jurisdiction is part of a composite sentence in the issuing state (the sentence having been imposed for 
the  non-corresponding  offence  and  an  offence  which  corresponds  to  an  offence  in  this  jurisdiction), 
surrender will not be ordered if there is a risk that the person, on being surrendered, would serve time 
in respect of the non-corresponding offence. 

Notification of trial (Minister for Justice, Equality and Law Reform v Sliczynski  

The  Supreme  Court  has  held  that  notification  of  trial  must  be  'actual  notification'  to  the  person 
him/herself. Notification to a relative or other person is not sufficient. 

Where the person is not notified in person of a trial, an undertaking under section 45 of the European 
Arrest Warrant act (guarantee for retrial) must be provided. 

COM Implementation Report of 2007 

the  Minister 

In  IE  the  transposing  legislation  applies  only  to 
the  Member  States  which  have  been  listed  by 
Decree  or  Order.  Under  the  Irish  implementing 
foreign  affairs  has 
for 
law, 
designated all Member States except for Bulgaria 
and  Rumania  for  the  purpose  of  the  Act,  which 
have  under  their  national  law  given  effect  to  the 
Framework  Decision.  As  far  as  IE  is  concerned, 
the  use  of  secondary  legislation  to  designate 
States rather than primary legislation was to allow 

All  EU  Member  States  are  listed.  (RO  and  BG 
since 13-2-2007) 

EN 

100 

   EN 

 
 
 
extradition  procedures 
those 
Member States who were delayed in ratifying the 
Framework Decision. 

to  subsist 

for 

Recitals  12  and  or  13  transposed  beyond  the 
scope of FD;  

See above (recommendation 11) 

IE  law  requires  refusal  where  surrender  would 
breach  their  national  constitutions.  Although  this 
may cover situations arising under both Article 6 
TEU  and  Recital  12  (such  as  rules  on  due 
process), 
the 
Framework  Decision,  in  particular  as  Art  6  TEU 
refers  only  to  those  constitutional  principles 
common to Member States. 

it  nevertheless  goes  beyond 

IE  has  transposed  this  paragraph  to  allow  for 
immunity  by  virtue  of  amnesty  or  pardon  in  the 
issuing  Member  State  rather  than  the  executing 
Member  State.  This  is  not  in  line  with  the 
Framework  Decision  which  allows  refusal  only 
where there is amnesty in the Executing Member 
State. This may have an impact the EAW system 
since  it  may  result  in  IE  always  requiring  this 
additional information, which was not foreseen in 
the EAW form. 

While it is to be hoped that a member state would 
not issue an EAW in respect of a subject where an 
amnesty  exists,  Irish  legislation  allows  for  the 
possibility  in  order  to  protect  the  rights  of  the 
subject.  However,  in  the  c.  5  years  operation  of 
the  Act,  Ireland  has  never  requested  information 
on  whether  or  not  an  amnesty  is  in  operation  in 
the issuing member state. This provision therefore 
has  no  practical  effect  on  the  operation  of  the 
EAW.  

IE  requires  an  additional  guarantee  that  the 
person  be  notified  of  the  time  and  place  of  any 
retrial in respect of the offence concerned if such 
a retrial was to take place and that in such cases, 
he or she will be permitted to be present 

informed 

IE does not impose the condition of Art 5(3) FD. 
The  Commission  has  been 
that 
provisions  to  enable  IE  to  give  the  guarantee 
required by 5(3) are being included in a Criminal 
Justice  (Miscellaneous  Provisions)  Bill,  which 
should  be  published  by  the  end  of  2007.  This  is 
still  a  difficult  issue  as  for  those  above  listed 
countries, the return of own nationals is regulated 
by  the  Transfer  of  Sentenced  Persons  Act  which 
places  the  right  of  initiative  exclusively  on  the 
requested  person  (save  for  the  cases  of  mental 
incapacity).  Indeed  the  Minister  may  not  compel 
such a person to return to any particular Member 
State  to  continue  serving  a  sentence.  Given  this, 
the Irish authorities, for example, cannot give any 
undertaking,  should  one  be  required  by  the 
executing  Member  state  pursuant  to  Article  5(3) 
of  the  Framework  Decision.  A  requested  person, 
being  a  national  of  the  executing  Member  State 
requiring  such  an  undertaking  is  therefore  in  the 
position to render null and void the efforts of both 

The European Arrest Warrant Act 2003 has been 
amended  to  provide  that,  where  surrender  is 
subject  to  the  condition  that  the  person  be 
returned  to  the  executing  state  to  serve  any 
sentence  imposed  in  the  issuing  state,  and  where 
the person consents to his return, the Minister will 
issue  a  warrant  for  the  transfer  of  that  person  to 
the  executing  state  following  final  determination 
of the proceedings. (section 20(b) of the Criminal 
Justice (Miscellaneous Provisions) Act 2009.)  

Ireland, therefore, no longer relies on the Transfer 
of  Sentenced  Persons  regime  and  can  offer  a 
guarantee  on  the  basis  of  the  European  Arrest 
Warrant Act 2003. 

EN 

101 

   EN 

 
 
states to have him or her surrendered. 

IE has amended its domestic law with effect from 
March 8th 2005 so that it now complies with the 
provisions  of  Article  7.  However 
the  Irish 
Supreme  Court  in  the  Rodnov  Case  decided  on 
the 1st June 2005 held that the Central Authority 
should  ensure  that  there  is  clarity  before  the 
warrant  is  brought  before  the  High  Court.  The 
Commission  believes  that  the  role  played  by  the 
Central 
the  pre-endorsement 
procedures, though one to perfect the application 
for the benefit of the ultimate surrender is clearly 
outside  the  scope  of  the  Framework  Decision 
which  attributes 
judicial 
authorities. 

authority 

role 

this 

the 

to 

in 

IE has imposed a certification or pre-endorsement 
stage for a EAW to be valid. This supplementary 
formality  is  to  be  complied  with  by  the  central 
authority,  which,  in  practice  often  acts  as  an 
executive authority.  

Art  15.1  FD:  IE  asks  for  additional  info  on  a 
systematic basis. 

IE  has  fully  transposed  the  10  day  deadline  in 
paragraph  2  for  the  taking  of  the  decision 
following  consent.  However,  at 
the  pre-
endorsement  stage,  the  central  authority  is  not 
bound  by  any  time  limit.  As  a  consequence,  the 
average  time  between  receipt  of  the  EAW  and 
endorsement 
this 
additional delay, it seems that IE will hardly be in 
a  position 
the  Framework 
Decision. 

is  88  days.  Given 

to  comply  with 

in  IE 

See response to recommendation 6 

All  warrants  are  endorsed  solely  by  the  High 
Court.  The  Central  Authority  arranges  for  the 
submission of the warrant to the High Court. 

This  is  not  the  case.  At  present,  Ireland  asks  for 
additional  information  only  in  cases  where  the 
form is inadequately completed. 

Further  information  may  also  be  requested  when 
the High Court Judge requires it 

The  current  average  time  between  receipt  of  an 
EAW and its endorsement is 14 days. 

the  surrender  decision  and 

Article  23  –  Time  limits  for  the  surrender  of  the 
person  In  relation  to  the  period  between  the 
making  of 
its 
execution in normal circumstances, as a principle 
in  IE,  the  effective  surrender  after  the  final 
decision will only take effect upon the expiration 
of  an  additional  10  day  deadline.  IE  has  never-
legislation,  which  now 
theless  amended 
provides surrender may take place earlier than the 
additional  deadline  for  its  execution  only  if  the 
person so requests and the Court agrees. Although 
closer  to  article  23(2),  this  provision  is  still  not 
fully in line with the FD. 

its 

EN 

102 

   EN 

 
 
Article  27  –  Possible  prosecution  for  other 
offences 
transposed 
IE  has  not  explicitly 
exception  g).  Initially  consent  could  only  be 
provided  by  the  central  authority  contrary  to 
article  27(3)(g)  and  27(4)  of  the  Framework 
Decision.  IE  has  stated  that  they  have  amended 
their legislation to vest the powers to give consent 
in the judicial authority. 

The  provisions  on  requests  for  consent  under 
article 27(4) have not been transposed 

Under S 22.7 of the European Arrest Warrant Act 
2003, as amended, the High Court may consent to 
proceedings being brought in the issuing state for 
offences 
subject  was  not 
surrendered  upon  receipt  of  a  written  request. 
(27(3)(g)  

for  which 

the 

In relation to Article 27.4 amending legislation is 
currently  being  considered.  However,  the  Irish 
Court has issued requests for consent to executing 
states based on the current EAW legislation read 
in conjunction with the Framework Decision. 

EN 

103 

   EN 

 
 
14. ITALY 

Recommendations EAW report 23-2-2009 

Follow up report 21-9-09 

No  amendments  to  the  relevant  legislation 
since 01-04-2007. 

A  practical  guide  for  practitioners  has  been 
issued  

(5832/2/09 REV 2 CRIMORG 19) 

New developments 

1 – Examine the possibility of increasing measures to 
promote training, for judges, prosecutors and judicial 
staff,  in  languages  other  than  Italian,  in  particular  in 
those  languages  that  can  assist  in  making  direct 
contact  with  competent  authorities  in  other  Member 
States  and  that  can  facilitate  the  members  of  the 
judiciary and of the MoJ to attend seminars in other 
Member  States  and  participate  in  exchanges  [see 
7.1.2.2.] 

2 – Examine the possibility of bringing the thresholds 
for issuing an EAW closer to those set out in Article 
2 of the Framework Decision, in particular as regards 
conviction cases [see 7.2.1.1.] 

3  –  Envisage  making  more  use  of  Article  95  alerts 
when  the  whereabouts  of  the  requested  person  are 
unknown and there are not yet "solid indications" that 
the requested person is in one of the (other) Member 
States [see 7.2.1.3.] 

4  –  Consider,  in  the  situation  where  more  than  one 
EAW has been issued in respect of the same person, 
mentioning  the  existence  of  the  other  EAWs  on  the 
M form [see 7.2.1.4.]  

5  –  Envisage  installing  a  national  register  of  EAWs 
on  which,  if  possible,  national  arrest  warrants  and 
other  international  arrest  warrants  are  also  entered 
[see 7.2.1.6.] 

6  –  Ensure  that  the  competent  authorities  keep 
(revision, 
informed  of  any  changes 
SIRENE 
withdrawal,  etc.)  regarding  EAWs  that  have  been 
issued by Italian issuing authorities [7.2.1.7.] 

7  –  Monitor  the  situation  of  providing  guarantees  in 
respect  of  "in  absentia"  judgments;  make  sure  that 
appropriate guarantees can be provided in good time 
[see 7.2.1.8.]. 

8  –  Ensure  that  existing  SIS  alerts  based  on 

EN 

104 

   EN 

 
 
 
 
 
 
 
 
 
International  Arrest  Warrants 
(where 
appropriate)  Interpol  alerts  based  on  EAW's  are 
replaced with (Article 95) SIS alerts based on EAW's 
[see 7.2.1.11.] 

and 

9  –  Limit  the  grounds  for  refusal  to  those  set  out  in 
the  Framework  Decision,  and  hence  delete  Article 
18(1)(b), (c), (e), (f), (g), (s), (t), (u) and (v) of Law 
69/2005 [see 7.3.2.1. (a)] 

10 – Consider deleting Article 7(2), second sentence, 
of Law 69/2005 [see 7.3.2.1.(b)] 

11  –  Consider  deleting  Article  18(1)(a)  and  (d)  and 
Article 18(1)(h) of Law 69/2005 [see 7.3.2.1.(c)] 

12  –  In  Law  69/2005,  consider  the  conversion  into 
optional  grounds  for  refusal  of  those  grounds  for 
refusal that are based on Article 4 of the Framework 
Decision [see 7.3.2.1.(d)] 

13  –  Delete  Article  6(3),  (4),  (5)  and  (6)  of  Law 
69/2005 [see 7.3.2.2.] 

14  –  In  conformity  with  the  developments  in  the 
case-law  of  the  Court  of  Cassation,  bring  Article 
17(4)  of  Law  69/2005,  regarding  the  verification  of 
guilt,  in  line  with  the  Framework  Decision  [see 
7.3.2.3.] 

15  –  Align  the  wording  of  the  list  of  offences  in 
Article  8(1)  of  Law  69/2005  with  the  description  of 
the  categories  of  offences  set  out  in  Article  2(2)  of 
the Framework Decision [see 7.3.2.4.(a)] 

16  –  Consider  deleting  Article  8(3)  of  Law  69/2005 
[see 7.3.2.4.(b)]  

17  –  Consider  the  deletion  of  Article  7(3),  second 
sentence,  as  well  as  of  4  words  in  the  heading  of 
Article  8(1)  of  Law  69/2005  ("escluse  le  eventuali 
aggravating 
– 
aggravanti" 
circumstances") [see 7.3.2.5.] 

"excluding 

any 

18 – In conformity with developments in the case law 
of the Court of Cassation, consider modifying Article 
1(3) of Law 69/2005 in order to bring it in line with 
the Framework Decision [see 7.3.2.6.] 

19  –  Bring  Article  2(2)  in  line  with  the  Framework 
Decision, so that it only refers to the guarantees that 
can  be  requested  by  Italian  executing  authorities 
under the Framework Decision [see 7.3.2.7.] 

EN 

105 

   EN 

 
 
 
 
 
 
 
 
 
 
 
 
20 – Consider the deletion of the possibility of appeal 
in consent cases in Law 69/2005 [see 7.3.2.8.] 

21 – Inform Eurojust in a case of a breach of the 90-
day  period  for  execution  of  an  EAW,  in  conformity 
with  Article  17(7)  of  the  Framework  Decision; 
consider 
facilitate 
contacts with competent authorities in other Member 
States [see 7.3.2.11.] 

involving  Eurojust  more 

to 

Recommendation  22  –  Consider  bringing  Article  40 
of Law 69/2005 in line with Articles 31 and 32 of the 
Framework Decision [see 7.3.2.12.] 

General information  

General Council recommendations 2009 

Language flexibility 

No  

Yes 24 hours  

Yes, only very serious cases  

Time limit for translated EAW 

Provisional arrest  

Proportionality test  

Is  it  possible  for  a  sought  person  to  get  (state  paid) 
legal  assistance  provided  by  X  in  the  following 
situations: 

(1)  in  X  for  the  underlying  X  criminal  proceedings 
when  he  is  arrested  in  another  Member  State  on  the 
basis of a X EAW and 

(2)  in  another  Member  State,  for  the  underlying 
criminal proceedings when he is arrested in X on the 
basis of an EAW of the other state? 

(X = state in the head of the relevant column) 

Accessory surrender  

Flagging 

Sirene bureau 

Competent authority for Art 111 Schengen requests 

Seizure and handover of property 

Principle of direct contacts 

Important role of central authority  

Integration of recital 12 in implementation law 

Yes and 13  

EN 

106 

   EN 

 
 
 
 
 
 
 
 
 
 
 
Dual criminality abolished for attempt and complicity  Yes  

4 months requirement  

Cf FD 

Regime for transfer back 

24/7 rota? 

In case of refusal of surrender for the execution of a 
sentence on the ground that the sought person has the 
nationality, or is a resident of the executing State, is 
execution  of  that  sentence  possible  in  the  executing 
state when there is no dual criminality? 

Age of criminal liability 

Statistics  

Website 

No  

Yes,  extensive  guidelines  and  publication  of 
overviews of relevant case law 

Jurisdiction ECJ 

yes 

Case law/preliminary questions  

The Constitutional Court (decision 143/2008) has ruled unconstitutional the provision that the time of 
deprivation  of  liberty  related  to  the  execution  of  an  EAW  in  another  Member  State  is  not  deducted 
from the statutory limit of pre trial detention. 

COM Implementation Report of 2007 

Article  1  and  recitals  12  and  13  FD:  IT  has 
transposed  the  text  into  its  legislation  in  such  a 
way that it goes beyond the Framework Decision 
and therefore creates the risk that a EAW will be 
refused  on  the  basis  of  grounds  not  envisaged  in 
the Framework Decision.  

the 

law  requires  refusal  where 
In  addition 
surrender  would  breach  its  national  constitution. 
Although  this  may  cover  situations  arising  under 
both Article 6 TEU and Recital 12 (such as rules 
on  due  process),  it  nevertheless  goes  beyond  the 
Framework  Decision,  in  particular  as  Art  6  TEU 
refers  only  to  those  constitutional  principles 
common to Member States 

In  IT,  aggravating  circumstances  are  excluded 
when  calculating 
threshold. 
Moreover,  where  a  EAW  is  issued  by  IT  for 
execution,  the  legislation  does  not  refer  to  the  4 
month  threshold  referred  to  in  the  Framework 

the  12  month 

EN 

107 

   EN 

 
 
 
 
 
 
 
 
 
Decision 

IT  legislation  disregards  the  list  contained  in 
Article  2(2)  of  the  Framework  Decision  and 
replaces  it  with  its  own  list  of  corresponding 
offences  found  in  national  criminal  law.  The 
consequence is that IT legislation reintroduces the 
principle of a control of dual criminality. 

In  IT  aggravating  circumstances  are  excluded 
from the calculation of the 3 year limit in Article 
2(2) FD 

IT refuses the EAW on a series of grounds which 
appear  contrary  to  the  Framework  Decision.  For 
example, an executing authority in IT may refuse 
to execute a EAW 

IT has transposed Art 4(1) but has made it subject 
to  an  additional  condition  of  assimilation  by 
analogy  to  Italian  tax  offences,  for  which  the 
maximum  penalty  is  at  least  three  years.  This 
appears contrary to the Framework Decision. 

In relation to Article 5(1) IT law does not provide 
for  a  possibility  to  retrial  in  cases  where  the 
requested  person  has  not  taken  part  in  the 
proceedings  which  may  in  practice  be  a  serious 
issue.  

IT may require an additional guarantee in respect 
of  fundamental  rights  or  Italian  constitutional 
principles on guarantee, which might be contrary 
to the Framework Decision. 

The  legislation  provides  that  the  EAW  shall  be 
accompanied  by  additional  documents.  These 
include:  a  copy  of  the  applicable  provisions;  the 
initial decision of the issuing judicial authority on 
which  the  EAW  is  based;  information  regarding 
the sources of evidence; all personal identification 
data  available;  and,  any  other  documents 
considered  necessary  according  to  the  Italian 
issuing  judicial  authority  to  verify  all  additional 
grounds for refusal. 

Art 25 FD: It has no provisions for transit by air 

IT  has  not  transposed  Article  28(4)  as  issuing 
Member State 

Some  of  those  additional  grounds  for  refusal  are 
softened by case law of the Cassation Court 

This provision is  mitigated by case law from the 
Cassation  Court  in  2006  (no  report  on  the 
offences necessary if the EAW form is sufficient), 
2007  (absence  of  information  relating  to  the 
identity  and  nationality  of  the  requested  person 
should  not  impede  surrender  if  this  information 
can  be  ascertained  by  other  information  by  the 
issuing  state)  and  2008  (  texts  of  the  applicable 
legislation  is  only  necessary  if  there  are  specific 
require 
problems  of 
knowledge of the scope of the law of the issuing 
state, e.g. in order to verify dual criminality) 

interpretation,  which 

EN 

108 

   EN 

 
 
 
 
 
 
 
 
 
 
15. LATVIA 

Recommendations EAW report 12-12-2008 

Follow up report 30-7-09 and 04-08-2010 

(17220/1/08 REV 1 CRIMORG 213) 

1.-  Consider  regrouping  in  different  sections  or 
chapters  the  provisions  concerning  extradition  and 
those  governing  surrender  on  the  basis  of  an  EAW 
(see 7.1.2). 

2.-  Take  the  necessary  measures  to  promote  direct 
contacts  between  the  issuing  judicial  authorities  in 
Latvia and their foreign counterparts (see 7.1.4). 

3.-  Improve  current  training  programmes  to  ensure 
that adequate training on EAWs and on basic foreign 
legal  language  is  provided  to  all  judicial  authorities 
involved  in  the  issuing  process,  and  adopt  measures 
to promote the training of defence lawyers on EAW-
related matters (see chapter 5). 

Amendments  to  the  law  on  29  July  2008,  1 
and 9 July 2009 and 21 October 2010. 

The  special  working  party  on  the  Criminal 
Procedure  Law 
the 
(CPL) 
recommendation. 

considered 

However,  due  to  the  structure  of  the  CPL, 
diving  international  cooperation  into  subject 
matters,  not  countries  with  which  Latvia 
cooperates, as well as to avoid duplication of 
norms, the working party decided not to group 
the sections.  

Direct cooperation is permitted in accordance 
with CPL Article 675 

With  assistance  of  Norwegian  authorities  the 
Ministry  of  Justice  organized  two  seminars 
with participation of EU lectors: 

“Principle  of  double  criminality  and  the 
principle of mutual recognition in the field of 
cooperation  in  criminal  matters  in  the  EU” 
January, 2009;  

„Application  of  fundamental  human  rights  in 
criminal  procedure,  practical  application  of 
European  Arrest  Warrant  and  European 
Evidence Warrant” August, 2009. 

The  seminar  was  organized  for 
prosecutors and defence lawyers.  

judges, 

Moreover,  in  the  year  2008  the  Latvian 
Training  center  for  judges  organised  number 
of lectures: 

EU  Law:  international  cooperation  in 
criminal matters; Application of European 
arrest;  

European Arrest Warrant;  

Completion  of  the  forms  on  international 
cooperation via internet;  

EN 

109 

   EN 

 
 
In  year  2009  there  were  also  number  of 
lectures for judges: 

Novelties  in  international  cooperation  in 
criminal matters;  

International  cooperation 
matters for new judges;  

in  criminal 

Novelties  in  international  cooperation  in 
criminal  matters  and  applicability  of 
European Arrest Warrant.  

In  year  2010  there  are  planned  to  be  two 
lectures  on 
in 
criminal  matters  (search  and  seizure);  and 
applicability of European Arrest Warrant. 

international  cooperation 

In year 2011 there is a plan to organise lecture 
on 
in  criminal 
matters.  

international  cooperation 

The EAW handbook, which was produced by 
the  Council,  was  disseminated  to  all  the 
judges.  

Pursuant to legislation adopted on 11 October 
2010 (entering into force on 1 January 2011), 
the  Prosecutor  General's  Office  will  be  the 
competent authority in respect of the issue of 
EAW decisions not the courts. 

4.-  Produce  written  guidelines  with  the  involvement 
of  practitioners  providing  updated  and  practical 
guidance  to  assist  judicial  authorities  in  completing 
the EAW form, and take the necessary measures for 
their appropriate dissemination (see 7.2.1.1). 

5.- Take the necessary measures to ensure that during 
the  pre-trial  investigation  EAWs  are  requested  only 
following  approval  by  the  public  prosecutor  (see 
7.2.1.2). 

6.-  Amend  the  implementing  law  to  fill  the  current 
gap  as  regards  the  transposition  of  Article  29(4)  of 
the Framework Decision (see 7.2.1.4). 

7.-  Identify  indicators  to  facilitate  the  decision  on 
issuing  an  EAW  in  terms  of  proportionality  (see 
7.2.2.1). 

Article  682  part  3  of  the  CPL  provides 
indicators to facilitate the decision on issuing 
an EAW in terms of proportionality. 

8.- Amend the implementing law to bring it into line 
with  Article  4(6)  of  the  Framework  Decision  as 
regards  the  undertaking  to  execute  the  sentence 
passed  in  the  issuing  State  in  accordance  with 
domestic law (see 7.3.1.1). 

Amendment  of  11  June  2009  to  the  law  (art 
777(4)  CCP:  the  execution  of  a  sentence 
"shall  be  possible'  if  extradition  of  a  Latvian 
the  execution  of  a  sentence 
citizen  for 
imposed  in  another  EU  Member  State  has 

EN 

110 

   EN 

 
 
 
 
 
9.-  Re-examine  transposition  into  national  law  with 
regard  to  Article  2(4)  of  the  Framework  Decision 
(see 7.3.1.2).  

introducing 

10.-  Consider 
transposing 
legislation more detailed provisions on the procedure 
for the examination of the EAW and the adoption of 
the corresponding decision on surrender (see 7.3.1.3). 

the 

in 

been refused) 

Amendment  of  11  June  2009  to  the  law  (art 
696(2)  CCP:  the  dual  criminality  rule  is 
applied  "unless  an  international  treaty  has 
specified otherwise"  

The practice shows that Article 714-716 of the 
CPL considered to be sufficient for authorities 
to examine the EAW and the adoption of the 
corresponding decision on surrender.  

Additionally,  the  competent  authority  –  the 
Prosecutor General’s Office in the near future 
will  adopt 
internal  regulatory  enactment, 
providing guidance.  

11.-  Reconsider  the  current  practice  of  adding 
restrictive  validity  flags  to  SIS  alerts  without  prior 
consultation  of  the  Prosecutor  General's  Office  (see 
7.3.1.4). 

The  competent  authority  –  the  Prosecutor 
General’s Office in the near future will adopt 
internal 
regulatory  enactment,  providing 
further guidance.  

12.-  Supplement  the  implementing  law  to  fill  the 
current  gap  as  regards  the  transposition  of  Article 
17(7) of the Framework Decision (see 7.3.1.5). 

(inform Eurojust in case of breaching time limits) 

13.-  Supplement  the  implementing  law  to  fill  the 
current  gap  as  regards  the  transposition  of  Article 
16(1) of the Framework Decision (see 7.3.1.6). 

14.-  Supplement  the  implementing  law  to  fill  the 
current  gap  as  regards  the  transposition  of  Article 
20(2)  of  the  Framework  Decision  (see  7.3.1.7)1.  1 
According to the information provided by the Latvian 
authorities, action already taken. See chapter 2.2 and 
footnote in chapter 7.3.1.7 above. 

15.- Re-examine the transposition of Article 25 of the 
Framework Decision into national law as regards the 
transit of Latvian nationals in prosecution cases (see 
7.3.1.8). 

16.- Re-examine the transposition of Article 29(2) of 
the Framework Decision into national law as regards 
the  handover  of  property  acquired  as  a  result  of  the 
offence (see 7.3.1.9). 

17.-  Produce  the  "Fiche  Francaise"  on  Latvia  and 
forward  it  for  publication  on  the  Council's  website 
(see 7.3.1.10). 

Article  716,  part  3  CPL  regulates  the  criteria 
for  evaluating  competing  requests,  namely  – 
several extradition requests, as well as several 
EAWs.  

Amendment  of  29  June  2008  to  the  law  (art 
715(4) CCP 

Amendment  of  11  June  2009  to  the  law  (art 
722(2) CCP 

EN 

111 

   EN 

 
 
 
 
 
General information  

General Council recommendations 2009 

Language flexibility 

Time limit for translated EAW 

Provisional arrest  

Proportionality test  

Is  it  possible  for  a  sought  person  to  get  (state  paid) 
legal  assistance  provided  by  X  in  the  following 
situations: 

(1)  in  X  for  the  underlying  X  criminal  proceedings 
when  he  is  arrested  in  another  Member  State  on  the 
basis of a X EAW and 

(2)  in  another  Member  State,  for  the  underlying 
criminal proceedings when he is arrested in X on the 
basis of an EAW of the other state? 

(X = state in the head of the relevant column) 

Latvian  and  English,  also  for  additional 
information 

Yes 72 hours 

Yes.  The  legal  provision  relates  to  a  match 
between  the  seriousness  or  nature  of  the 
offence  and  the  expenses  of  the  surrender 
procedure.  In  practice  also  consideration  is 
given  to  the  circumstances  of  the  case,  the 
personality of the offender and the harm to the 
individual.  There  are,  however  no  specific 
indicators or guidelines. 

legal 
LV  does  not  provide  state  paid 
assistance for person whom LV seeks and that 
person  is  arrested  in  EU  MS  on  the  basis  of 
EAW.  

For the EAW proceedings in LV, LV ensures 
state paid legal assistance for a person whom 
EU MS is seeking and that person is arrested 
in LV.  

Accessory surrender  

Yes  

Flagging 

Sirene  with  advice 
Prosecutors office where appropriate 

from 

the  General 

Competent authority for Art 111 Schengen requests 

Data State Inspectorate 

Seizure and handover of property 

Principle of direct contacts 

Yes, however, Article 29(4) of the FD has not 
been implemented 

The Prosecutor General's office plays a major 
role 

Integration of recital 12 in implementation law 

Yes  

Dual criminality abolished for attempt and complicity  Yes 

4 months requirement  

Cf FD 

Regime for transfer back 

1983 CoE convention 

EN 

112 

   EN 

 
 
 
24/7 rota? 

In case of refusal of surrender for the execution of a 
sentence on the ground that the sought person has the 
nationality, or is a resident of the executing State, is 
execution  of  that  sentence  possible  in  the  executing 
state when there is no dual criminality? 

Yes  

No 

Age of criminal liability  

14  

Statistics 

Website 

2007 and 2008: yes 

Jurisdiction ECJ 

Yes 

Case law/preliminary questions: - 

COM Implementation Report of 2007 

Art  4(6):  In  LV  this  is  a  mandatory  ground  (for 
nationals)  but  there  is  no  provision  in  the 
legislation requiring an undertaking to execute the 
sentence. 

see follow up recommendation 8 

LV has not provided for the inclusion of aliases in 
its  form  unlike  in  the  form  in  the  annex  to  the 
Framework Decision. 

The  form  has  been  changed  and  contains  now  a 
possibility to include aliases 

Art  16  LV  has  only  transposed  paragraph  3.  LV 
does  not  have  legislation  in  particular  in  relation 
to competing requests between Member States. 

Though  it  has  stated  that  in  practice  this  issue  is 
dealt with by the Prosecutor General’s office, this 
is not in line with the Framework Decision. 

See follow-up recommendation 13 

LV  has  transposed  correctly  only  article  24(1), 
and  does  not  provide  for  temporary  surrender 
pursuant to article 24(2) 

Amendments  of  29-6-2008  to  the  law  (  Article 
688 and 721) allow now for temporary surrender 

Art  27(3)LV  has  not  transposed  exception  b)  c) 
and d)..  

Exception  b  –  is  provided  in  Article  695(1)  of 
CCP; exception c – is provided in Article 695(2) 
of CCP. 

The  provisions  on  requests  for  consent  under 
article 27(4) have not been transposed;  

Amendment  of  11-6-2009  to  article  695  fills  the 
gap 

Article 28(2) only partly implemented and Article 
28(3) not transposed 

Amendment  of  11-6-2009  to  article  695  fills  the 
gap 

Article  29  not  transposed  paragraph  4  on  rights 
acquired in the property  

See above  

EN 

113 

   EN 

 
 
 
16. LITHUANIA  

Recommendations EAW report 13-11-2007 

Follow up report 5-8-2009 and 29-06-2010 

Since  1  April  2007,  Lithuania  has  made 
several amendments to the law relating to the 
the  European  arrest 
implementation  of 
warrant 
particular, 
Article 70(2)  of  the  Criminal  Code  of  the 
Republic  of  Lithuania  has  been  amended  by 
Law No X-1236 of 28 June 2008. 

in  Lithuania. 

In 

These  amendments  relate  to  consent  of  the 
executing  state  to  re-extradition  or  surrender 
of  a  person  from  LT  to  a  third  state  (see 
below)  and  the  competence  of  regional  or 
district  courts  to  decide  on  issues  relating  to 
detention in EAW cases.  

Lithuania  has  taken  into  account  the  recom-
mendations and conclusions it received during 
the  assessment  of  the  implementation  of  the 
European arrest warrant. Therefore, increased 
consideration is being given to improving the 
process of issuing and executing the European 
legal  and  practical 
arrest  warrant,  and 
to  solve  any  related 
measures  designed 
problems are under development.  

(12399/2/07 REV 2 CRIMORG 134) 

New developments  

1  ─  That  Lithuania,  in  the  light  notably  of  Article 
6(1) of the FD, should reconsider its legal system by 
entrusting a judicial authority with the power to issue 
EAWs  in  conviction  matters.  The  initiative  by 
Lithuania  to  allow  the  courts  to  issue  EAWs  in  the 
future should be welcomed (see 7.2.1.1.). 

2  ─  To  give  consideration  to  the  improvement  of 
coordination  within  the  prosecution  service  and 
between  the  OPG,  MOJ  and  ILO  with  a  view  to 
enhancing  the  efficiency  of  the  EAW  system  in 
Lithuania (see 7.2.1.2.). 

3  ─  To  provide  the  prosecution  with  up-to-date 
communication  and  database  equipment  (computers, 
adequate  software)  so  as  to  enable  it  to  carry  out 
quick  and  efficient  database  searches  and  exchange 
information  with  other  EAW  actors  (MOJ,  ILO) 
more easily (see 7.2.1.3.). 

4  ─  To  ensure  the  availability  of  reliable  statistical 
information  on  EAW  matters  at  national  level  (see 
7.2.1.4.). 

LT has provided statistics for 2007, 2008 and 
2009 

EN 

114 

   EN 

 
 
 
 
5 ─ To ensure that the OPG acts in conformity with 
the wording of Article 73(1) of the Code of Criminal 
Procedure,  leaving  the  decision  on  the  execution  of 
an  EAW  entirely  in  the  hands  of  the  competent 
is  currently  Vilnius 
judicial  authority 
Regional  Court),  or  alternatively,  modify  the  law  or 
provide other adequate legal solutions so as to clearly 
determine  the  powers  of  the  OPG  and  Vilnius 
the  executing 
Regional  Court  when  acting  as 
authority (see 7.3.1.1.). 

(which 

6  ─  To  reconsider  the  notification  to  the  Council 
General Secretariat under Article 6(3), in conjunction 
with  Article  6(2),  of  the  FD,  and  designate  also 
Vilnius  Regional  Court  as  the  executing  judicial 
authority (see 7.3.1.2.). 

has 

Lithuania 
the  modified 
provided 
notification  pursuant  to  the  provisions  of  the 
FD  on  the  European  arrest  warrant  and  the 
surrender  procedures  between  the  Member 
States of the European Union, under Article 6 
(3), 
in  conjunction  with  Article  6  (2), 
designating as the executing judicial authority 
in Lithuania Vilnius County Court. The Office 
of 
is  competent 
authority to receive EAW’s (letter sent to the 
Permanent Representation of Lithuania to the 
European Union on 5 September 2008) 

the  Prosecutor  General 

7  ─  To  reconsider  Article  73(4)  of  the  Code  of 
Criminal  Procedure,  so  that  judges  are  allowed  to 
directly enter into contact with judicial authorities in 
other  Member  States  with  a  view  to  obtaining 
additional information, without having to go through 
the OPG as an intermediary 

(see 7.3.1.3). 

8  ─  To  reconsider  at  the  appropriate  level  the 
necessity  of  the  ground  for  refusal  relating  to  on 
"human rights" as provided for in Article 91(3)(1) of 
the Criminal Code (see 7.3.1.4.). 

Not changed 

9  ─  That  domestic  legislation  be  put  in  place  to 
permit  surrendered  persons 
to  cross  Lithuanian 
borders  without  international  travel  documents  (see 
7.2.1.5.) 

10 ─ To provide, or continue to provide, appropriate 
training  to  all  authorities  involved  in  EAW  matters, 
in particular judges (see 7.3.1.5.). 

11  ─  To  reconsider  the  wording  of  Article  73(5)  of 
the  Code  of  Criminal  Procedure  of  Lithuania  in  the 
light of Article 16(1) of the FD (see 7.3.1.7.). 

General information  

EN 

115 

   EN 

 
 
 
 
 
 
 
 
General Council recommendations 2009 

Language flexibility 

Time limit for translated EAW 

Provisional arrest  

Proportionality test  

Is  it  possible  for  a  sought  person  to  get  (state  paid) 
legal  assistance  provided  by  X  in  the  following 
situations: 

(1)  in  X  for  the  underlying  X  criminal  proceedings 
when  he  is  arrested  in  another  Member  State  on  the 
basis of a X EAW and 

(2)  in  another  Member  State,  for  the  underlying 
criminal proceedings when he is arrested in X on the 
basis of an EAW of the other state. 

(X = state in the head of the relevant column)? 

Lithuanian 
procedure)  

or  English 

(for 

initiating 

Yes 48 hrs 

Lithuania  has  made  amendments  to  the 
law  relating  to  the  implementation  of  the 
European  arrest  warrant  in  Lithuania.  In 
particular, the Rules for issuing EAW and 
taking over of persons pursuant the EAW 
has  been  amended  by  the  Order  of  the 
Minister of Justice and Prosecutor General 
of  the  Republic  of  Lithuania  No.  1R-
312/I-140 of 7 October 2009. 

These  amendments  relate  to  proportionality 
check  in  EAW  cases  (criteria  to  apply  when 
issuing an EAW -principle of proportionality). 

Lithuania,  as  an  issuing  State,  does  not 
guarantee  free  legal  assistance  to  a  person 
arrested  in  another  State  under  a  European 
arrest  warrant  issued  in  Lithuania,  since  in 
this  case  the  person  is  not  under  the  juris-
diction  of  Lithuania  and  the  process  of 
executing  the  European  arrest  warrant  is 
carried  out  under  the  law  of  the  executing 
State.  However,  the  person  has  the  right  to 
contact  a  legal  counsel  in  Lithuania  if  she/he 
has appointed one. 

Accessory surrender 

Executing: yes 

Flagging  

Competent authority for Art 111 Schengen requests 

Seizure and handover of property 

Yes 

Principle of direct contacts 

Via the office of the Prosecutor General 

Integration of recital 12 in implementation law 

Yes 

Dual criminality abolished for attempt and complicity  Yes 

4 months requirement 

Cf FD 

EN 

116 

   EN 

 
 
 
 
Regime for transfer back 

1983 CoE Convention 

24/7 rota? 

In case of refusal of surrender for the execution of a 
sentence on the ground that the sought person has the 
nationality, or is a resident of the executing State, is 
execution  of  that  sentence  possible  in  the  executing 
state when there is no dual criminality? 

Age of criminal liability  

16 yrs; 14 yrs for specific serious offences 

Statistics 

Website  

Yes, 2007, 2008 and 2009 

Handbook for issuing EAW's 

Jurisdiction ECJ 

Yes 

Case law/preliminary questions: - 

COM Implementation Report of 2007 

(or) 

rights  and 

the  Criminal  Code  provides  for  a 
In  LT, 
mandatory  ground  for  refusal  in  the  case  where 
"the surrender of the person would be in breach of 
fundamental 
liberty".  The 
Commission has been advised that this ground of 
refusal  may  go  beyond  the  provisions  contained 
in  the  Framework  Decision.  Moreover,  where  a 
ground  of  refusal  is  to  be  applied,  the  Office  of 
the  Prosecutor  general  can  directly  stop  the 
proceedings without asking for further evaluation 
by the judge of the ground of refusal. 

LT has indicated that an EAW for enforcement of 
a sentence is issued by the Ministry of Justice but 
only at the request of the judicial authority or the 
authority  executing  the  sentence,  that  is  the 
relevant  prison  department  which  is,  however, 
under  the  under  the  control  of  the  Ministry  of 
Justice  .  The  Ministry  of  Justice  is  not  a  judicial 
authority,  but  rather  part  of  the  executive.  In 
particular,  in  the  case  the  issuing  of  a  EAW  is 
asked  by  the  prison  department,  there  is  no 
involvement  at  all  of  the  judiciary.  As  to  the 
Office of the Prosecutor General, it is considered 
as  judicial  authority  in  LT  because  the  related 
provision 
its 
Constitution  entitled  "The  Court"  of  the  judicial 
Procedure.  Hence,  there  is  no  strong  support  to 
the  argument  that  the  Office  of  the  Prosecutor 
General  is  a  judicial  authority  in  LT.  Again,  the 

in  Chapter  9  of 

inserted 

is 

EN 

117 

   EN 

 
 
 
 
 
 
 
Framework Decision states that an EAW must be 
issued or executed by a judicial authority and as a 
consequence  LT's  implementation  of  Article  6  is 
contrary to the Framework Decision. 

LT has not transposed Article 27, exception c 

LT has not transposed Article 27, exception d  

LT  has  incorrectly  implemented  article  28(4)  as 
they  have  allowed  the  possibility  for  subsequent 
extradition to a third state without the permission 
of  the  original  executing  Member  State  contrary 
to  the  Framework  Decision.  LT  has,  however, 
confirmed  this  was  unintentional  and  that  they 
intend to rectify the problem. 

Amended  legislation::  "A  person  extradited  or 
surrendered  by  a  foreign  State  may  be  re-
extradited  or  surrendered  to  a  third  State  for  a 
criminal  act  for  which  he  was  previously  sur-
rendered  or  extradited,  or  any  other  criminal  act 
which  was  committed  prior  to  his  extradition  or 
surrender,  only  when 
the  State  which  has 
surrendered  or  extradited  the  person  in  question 
gives  its  consent.  If  a  person  was  surrendered  to 
the  Republic  of  Lithuania  under  the  European 
arrest  warrant, 
the  same  person  may  be 
surrendered to another Member State for criminal 
acts committed prior to his surrender in the cases 
provided  for  in  points  2-4  of  Part  1  of  this 
Article." 

EN 

118 

   EN 

 
 
 
 
17. LUXEMBURG  

Recommendations EAW report 19-11-2007 

Follow up report 10-8-2009 and 04-08-2010 

(10086/1/07 REV 1 CRIMORG 101) 

New developments  

There  have  been  no  legislative  changes  since 
01-04-2007.  

implementing 

However  as  at  04-08-2010,  a  bill  amending 
the  Luxemburg 
legislation 
(Law  of  the  17  March  2004  on  the  European 
arrest  warrant  and  surrender  procedures 
between Member States) has been drafted and 
is  currently  going  through  the  legislative 
process. This proposed legislation addresses a 
report 
number 
recommendations 

evaluation 

the 

of 

1 - Amend Article 37 of the law of 17 March 2004 to 
comply  with  Article  32  of  the  Framework  Decision 
as an issuing State (see 7.2.1.1). 

An amendment proposed in the draft bill will 
address this issue 

2 - Ensure coordination and regular contacts between 
the Sirene Bureau and the issuing judicial authorities 
in  Luxembourg,  to  harmonise  drafting  methods  for 
SIS  forms  relating  to  EAWs  issued  in  Luxembourg 
(see 7.2.1.2). 

A 'circulaire' issued by the judicial authorities 
gives  guidance  through  the  different  steps  of 
proceeding in executing EAWs  

3  -  At  national  level,  clarify  the  provision  on 
temporary surrender, particularly as regards the valid 
grounds  for  detention  during  temporary  surrender 
(see 7.2.1.5). 

LU.= issuing authority : In case of temporary 
surrender to the authorities of LU, the ground 
for detention is the international arrest warrant 
issued by the judge ("juge d'instruction") LU, 
which is the basis for the EAW. This warrant 
is  served  to  the  requested  person  at  the 
moment  of  his  surrender  and  corresponds  to 
an  arrest  order,  serving  as  a  basis  for 
detention. (Art. 103 CIC).  

4  -  Make  use  of  the  possibility  offered  by  the  EAW 
form (heading (g)) as regards the seizure and handing 
over  of  property  held  by  the  wanted  person  (see 
7.2.1.7). 

5 - Amend Article 37 of the law of 17 March 2004 to 
comply  with  Article  32  of  the  Framework  Decision 

See response to 1 above 

EN 

119 

   EN 

 
 
 
 
 
 
as an executing State (see 7.3.1.1). 

6  -  Consider  a  legislative  amendment  concerning 
arrangements for the receipt of EAWs (acceptance of 
the  EAW  in  forms  other  than  the  original  or  a 
certified  true  copy  of  the  original)  when  arrest  is 
carried out on the basis of a SIS alert (see 7.3.1.2). 

An amendment proposed in the draft bill will 
address this issue 

7  -  Look  in  depth  at  the  issue  of  extending  the 
principle  of  mutual  recognition  as  regards  the  limits 
which  the  executing  authority  should  respect  when 
examining an EAW. Specific training on this subject 
could be planned (see 7.3.1.3). 

The LU executing authority, when examining 
the  transmitted  EAW,  cannot  go  beyond  the 
conditions set out in the law and in the FD. In 
this  context 
for  additional 
information  in  order  to  clarify  occurring 
legal 
contradictions  (in 
qualifications  compared 
is 
admissible.  

the  adequacy  of 

the  facts) 

request 

the 

to 

judicial 
8  -  Make  clear  whether 
supervision is applicable in EAW cases (see 7.3.1.6). 

law  on 

the 

 If conditional release can be applied with real 
guarantees against the escape from surrender, 
such  a  release  with  judicial  supervision  is 
perfectly  possible  even  without  express 
provision in the law.  

9 - Consider amending Article 10(4) of the law of 17 
March  2004  and  organise  prior  consultation  on  this 
subject  with  the  two  other  Benelux  States  (see 
7.3.1.7). 

An amendment proposed in the draft bill will 
address this issue 

10 - Consider amending the law of 17 March 2004 as 
regards  the  transposition  of  Article  17(7)  of  the 
Framework Decision (see 7.3.1.8). 

An amendment proposed in the draft bill will 
address this issue 

11  -  Consider  the  possibility  of  transposing  Article 
16(2) of the Framework Decision (see 7.3.1.9). 

This  does  not  need  to  be  inserted  into  the 
provisions  of  the  law  but  can  simply  result 
from an internal instruction 

12  -  Consider  the  possibility  of  organising  training 
sessions  on  the  EAW  for  all  practitioners  (see 
7.3.1.10). 

13 - Consider the possibility of allowing the police to 
have access to the social security database and the tax 
administration database (see 7.3.1.11). 

The access has been allowed by the law of 5 
June 2009, entitled "Loi du 5.6.2009 relative à 
l’accès des autorités judiciaires, de la Police et 
de l’Inspection générale de la Police à certains 
traitements de données à caractère personnel". 

EN 

120 

   EN 

 
 
 
 
 
 
 
General information  

General Council recommendations 2009 

Language flexibility 

French, German or English 

Time limit for translated EAW 

Provisional arrest  

Yes 24 hours 

Proportionality test  

Is  it  possible  for  a  sought  person  to  get  (state  paid) 
legal  assistance  provided  by  X  in  the  following 
situations: 

(1)  in  X  for  the  underlying  X  criminal  proceedings 
when  he  is  arrested  in  another  Member  State  on  the 
basis of a X EAW and 

Yes,  person  absconded  or  living  outside  LU, 
minimum  penalty  of  6  months  imprisonment 
imposed or to be expected  

1)  LU  issuing  state:  If  requested,  LU  has  no 
problem  in  agreeing  to  a  contact  with  a  LU 
lawyer; the question of cost: free consultation 
is governed by the rules on judicial assistance-
conditions  concerning  the  financial  situation 
of the requesting person are applicable. 

(2)  in  another  Member  State,  for  the  underlying 
criminal proceedings when he is arrested in X on the 
basis of an EAW of the other state? 

2) No 

(X = state in the head of the relevant column) 

Accessory surrender 

In  case  of  two  or  more  infringements,  from 
which  one  (or  more)  does  not  satisfy  the 
conditions  of  applicability  of  the  EAW,  Art. 
60 and 61 CP allows including all of them in 
one  EAW,  as  the  sanction  to  be  applied  will 
be that which is foreseen for the infringement 
which  meets  the  criteria  of  the  EAW;  this 
sanction  can  be  than  doubled,  but  cannot 
exceed  the  sum  of  the  sanctions  defined  for 
the different infringements.  

Flagging 

Decision of the Prosecutor 

Competent authority for Art 111 Schengen requests? 

Seizure and handover of property 

In  practice  on  the  basis  of  separate  MLA 
request 

Principle of direct contacts 

Yes. No central authority, except for requests 

EN 

121 

   EN 

 
 
 
 
 
 
 
 
 
for transit  

Integration of Recital 12 in implementation law 

Dual criminality abolished for attempt and complicity  Yes 

4 months requirement 

Cf FD 

Regime for transfer back 

24/7 rota? 

In case of refusal of surrender for the execution of a 
sentence on the ground that the sought person has the 
nationality, or is a resident of the executing State, is 
execution  of  that  sentence  possible  in  the  executing 
state when there is no dual criminality? 

Article  20  of  the  Law  of  22  March  2004 
mentions  the  conditions  of  the  Law  of  25 
transfer  of 
April  2003  concerning 
convicted  persons 
the 
additional  Protocol  of  18.12.1997  to  the 
25.05.1987 
European 
concerning transfer). 

Convention 

approving 

(law 

the 

of 

to 

that 

the  condition 

Yes,  subject 
the 
competent  Luxembourg  authority  commits  to 
execute  the  sentence  in  compliance  with 
Luxembourg  law  (as  this  is  not  a  mandatory 
refusal case, there might possibly be surrender 
rather than refusal). 

Age of criminal liability  

Statistics  

Website 

18  yrs;  in  serious  cases  surrender  of  minors 
between 16-18 yrs possible 

Yes, 2007 and 2008: 

JUMAR  IT  system  for  judicial  authorities 
includes info and forms relating to EAW 

Jurisdiction ECJ 

Yes 

Case law/preliminary questions : - 

COM Implementation Report of 2007 

Reporting  breaches  to  the  deadlines,  LU  makes 
no  mention  in  legislation  of  this  requirement, 
however it does not see any obstacle in doing so. 

EAW  evaluation:  in  LU  breaches  of  time  limits 
have  not  occurred  in  2006,  2007  and  2008.  An 
amendment proposed in the draft bill will address 
this issue 

The legislation of LU provides for a hearing only, 
not for a temporary transfer, as is possible under 
Art 18 and 19 FD (Evaluation report: due to lack 
temporary 
of 
surrender  to  LU).  LU  can  temporary  surrender  a 

title  for  detention  during 

the 

See above (recommendation 3) 

EN 

122 

   EN 

 
 
 
 
 
 
 
An  amendment  proposed  in  the  draft  bill  will 
address this issue 

person to another MS. 

ART  32:  LU  did  not  make  any  statement  at  the 
time  of  the  adoption  of  the  Framework  Decision 
(JO  L  190  of  18.7.2002,  p.  19).  The  transitional 
provision  is  applicable  where  LU  is  both  the 
issuing  and  executing  Member  State  contrary  to 
the Framework Decision. This means that LU will 
not apply surrender arrangements to EAWs issued 
by  other  Member  States  for  offences  before  7 
August  2002  but  they  will  not,  in  addition,  be 
able to issue EAWs for offences committed prior 
to that date. Contrary to the Framework Decision, 
requests for offences committed prior to 7 August 
2002 will be treated by LU under previous extra-
dition arrangements. 

EN 

123 

   EN 

 
 
18. MALTA 

Recommendations EAW report 19-6-2008 

Follow up report 21-7-2009 

(9617/2/08 REV 2 CRIMORG 75) 

No further legislative measure adopted since 1 
April 2007. 

Guidelines  for  the  police  on  issuing  and 
executing EAWs have been produced.  

1  -  It  is  recommended  that  the  Maltese  authorities 
take  care  to  ensure,  in  accordance  with  the  current 
practice,  that  the  execution  of  EAW  and  SIS  alerts 
and  the  consequent  arrest  of  persons  is  not  delayed 
because of the certification by the AG (see 7.3.1.1). 

2  -  Adopt  a  flexible  approach  in  those  cases  of 
provisional  arrest,  where  a  SIS  alert  has  not  been 
issued, as regards the 48 hour time-limit for receiving 
a translated EAW: the discharge of the person solely 
because  of  the  lack  of  a  translated  EAW  should  be 
avoided.  The  receipt  of  an  EAW  in  the  language  of 
the issuing State should be taken into consideration to 
avoid jeopardizing the execution procedure and every 
attempt  should  be  made  to  obtain  the  information 
required  by  the  law  within  48  hours  by  other  means 
(direct  contacts  with  issuing  authorities,  recourse  to 
Eurojust), while respecting the defendant's rights (see 
7.3.1.3). 

3 - Envisage addressing the issue of grounds for non-
recognition  in  the  light  of  the  spirit  of  mutual 
recognition  and  mutual  trust  in  order  to  have  a 
position closely in line with the Framework Decision. 
In  particular,  consider  amending  the  implementing 
legislation  as  regards  the  transposition  of  Article 
4.7(a) of the Framework Decision, so as to make it an 
optional ground for refusal (see 7.3.1.4). 

'extraneous considerations' and 'prescription'  

4  -  Consider  the  possibility,  at  least  in  cases  where 
there  are  manifest  and  objective  grounds  for  refusal, 
of  anticipating  the  Magistrate's  intervention  to  raise 
the  invalidity  of  the  EAW's  request  with  a  view  to 
avoiding 
the 
the  arrest.  An  amendment 
implementing law should be envisaged (see 7.3.1.5). 

to 

5  -  Consider  measures  to  prevent  domestic  national 
appeals  before 
from 
hindering  the  surrender  of  requested  persons  within 
the  time-limits  provided  for  by  the  Framework 

the  Constitutional  Court 

EN 

124 

   EN 

 
 
 
 
 
 
 
Decision (see 7.3.1.6). 

6  -  Consider  amending  the  implementing  law  as 
regards  the  transposition  of  Article  17(7)  of  the 
Framework Decision, so as to bring domestic law in 
line with current practice (see 7.3.1.7). 

7  -  Prevent  the  absence/unavailability  of  one  of  the 
specialised  officials  dealing  with  EAW 
from 
hampering the execution of EAWs. In particular, the 
involvement and training of one or more Magistrates 
and  prosecutors  in  the  AG's  office  should  be 
envisaged (see 7.3.1.10). 

8 - Update the Fiche Francaise in accordance with the 
latest  amendments  to  the  implementing  legislation 
(see general conclusions). 

General information  

General Council recommendations 2009 

Language flexibility 

Maltese and English 

Time limit for translated EAW 

Provisional arrest  

Proportionality test  

Yes 48 hours 

Person must be 'unlawfully at large'.  

In practice only for serious offenses. 

Is  it  possible  for  a  sought  person  to  get  (state  paid) 
legal  assistance  provided  by  X  in  the  following 
situations: 

(1) 

(2) no 

(1)  in  X  for  the  underlying  X  criminal  proceedings 
when  he  is  arrested  in  another  Member  State  on  the 
basis of a X EAW and 

(2)  in  another  Member  State,  for  the  underlying 
criminal proceedings when he is arrested in X on the 
basis of an EAW of the other state? 

(X = state in the head of the relevant column) 

Accessory surrender 

Flagging 

Competent authority for Art 111 Schengen requests 

Seizure and handover of property 

no 

yes 

EN 

125 

   EN 

 
 
 
 
 
 
 
 
 
Principle of direct contacts 

Yes 

Integration of recital 12 in implementation law 

Yes (non exhaustive), and 13 

Dual criminality abolished for attempt and complicity  yes 

4 months requirement 

Cf FD 

Regime for transfer back 

Based on Framework Decision on the EAW 

24/7 rota? 

In case of refusal of surrender for the execution of a 
sentence on the ground that the sought person has the 
nationality, or is a resident of the executing State, is 
execution  of  that  sentence  possible  in  the  executing 
state when there is no dual criminality? 

Age of criminal liability  

9  yrs,  adapted  regime  for  minors  from  9-14 
and 14-18 years 

Statistics  

Website 

2007:yes 

Forms  and  guidelines  on 
application are electronically available 

the  practical 

Competence ECJ  

Yes  

Case law/preliminary questions: -  

COM Implementation Report of 2007 

The  Attorney  General  in  MT  is  required  to 
transmit  and  certify  EAWs  (in  particular  that  the 
incoming  request  has  come  from  an  authority 
having  the  function  of  issuing  arrest  warrants  in 
the  requesting  country),  renunciations  to  the 
speciality  rule,  consents  to  further  surrender  to  a 
third  Member  State  and  consents  to  further 
extradition  to  a  third  country.  The  Attorney 
General  is  also  in  charge  of  consenting  to  the 
issue of a EAW and lodging an appeal in respect 
of a person. Given the attributions of the Attorney 
General  which  are  of  an  administrative  nature  as 
well  as  of  a  judicial  nature,  the  Commission 
believes that MT has not properly transposed the 
Framework Decision. 

No  deadline  is  provided  for  making  the  decision 
following  the  highest  appeal  (the  MT  Court  of 
Criminal  Appeal).  Thus  both  the  60  and  90  day 
deadlines could in principle be exceeded. 

EN 

126 

   EN 

 
 
 
 
 
 
 
No  obligation  in  The  law  to  report  breaches  of 
time limits to Eurojust. 

Breaches of time limits are reported to Eurojust as 
a matter of good practice 

Article 21 – Competing international obligations 

MT legislation is contrary to this article. 

MT  has  provided  that  where  there  is  a  speciality 
condition imposed by a third state this constitutes 
a mandatory ground for refusal. In addition there 
is no provision to request the consent of the third 
state. However MT has informed the Commission 
that  in  practice,  MT  will  always  ask  for  a  third 
state's  consent.  This  may  not  be  in  line  with  the 
Framework Decision since refusal should only be 
possible once it is established that consent has not 
been given. 

In relation to Article 23(2) MT has gone beyond 
the Framework Decision in its implementing law 
in  specifying  that  the  surrender  is  not  allowed 
before 7 days from the arrest. 

MT  has  in  transposing  Article  23(4)  allowed  for 
discharge  of  the  person  as  an  alternative  to 
postponement. The grounds for discharge (where 
it would be "unjust or oppressive" to extradite the 
person) are vague to contrast with the Framework 
Decision.  The  postponement  of  the  surrender  for 
humanitarian  reasons  is  not  specifically  foreseen 
as  it  is  for  the  hearing  according  to  their 
legislation. 

Art  29  MT  has  not  transposed  paragraph  4  on 
rights acquired in the property  

EN 

127 

   EN 

 
 
 
 
 
 
19. NETHERLANDS 

Recommendations EAW report 2-12-2008 

Follow up report 31-7-09 

(15370/2/08 REV 2 CRIMORG 185) 

1.  Update  the  existing  guidelines  on  the  use  and 
completion of the EAW form (Provisional Method of 
Operation) in the light of practice and the experience 
gained (see 7.2.1.1). 

The relevant law has not been amended since 
1-4-2007. 

This  has  been  completed  and  it  will  be 
formally adopted in October 2010. 

2.  Provide  public  prosecutors  with  appropriate 
training  and  promote  the  assisting  role  of  the  IRCs 
with  a  view  to  improving  the  quality  of  outgoing 
EAWs (see 7.2.1.2). 

The  Studiecentrum  Rechtspleging  (national 
training  centre  for  public  prosecutors  and 
judges)  does  provide  a  mandatory  training 
which addresses amongst others the EAW. 

3.  Screen  all  the  existing  SIS  alerts  and  take  the 
necessary  steps  to  ensure  that  all  those  based  on 
International  arrest  warrants  are  replaced  by  SIS 
alerts based on EAWs (see 7.2.1.3). 

4.  Amend  the  implementing  law  so  that  it  conforms 
to  the  Framework  Decision  as  regards  scope  in  both 
prosecution and conviction cases (see 7.3.1.1). 

5. Adapt the implementing legislation to facilitate the 
enforcement  in  NL  of  sentences  passed  against  the 
Netherlands  nationals, 
letter 
in 
("undertake to execute") and spirit of the Framework 
Decision (see 7.3.1.2). 

line  with 

the 

When  reviewing  a  SIS  alert  periodically  this 
issue  will  be  addressed  on  a  case  by  case 
basis.  The  Netherlands  considers  this  to  be  a 
transitional  problem.  Most  of  the  SIS  alerts 
for  extradition  from  before  2004  will  have 
been  withdrawn  by  now.  All  SIS  alerts  after 
the  entry  into  force  of  the  implementation 
legislation  (12  May  2004)  are  based  on  an 
EAW. 

This  recommendation  addresses  an  issue  that 
would only be of interest for cases concerning 
minor  offences,  punishable  by  less  than  one 
year.  In  view  of  the  ongoing  discussion  in 
Brussels  on  the  proportionality  when  issuing 
an  EAW,  no  change  of  the  Dutch  legislation 
has been prepared 

This  will  be  part  of 
preparation 
2008/900/JHA. 

the 
implementing 

legislation 
the 

in 
FD 

6. Correct the practice of systematically asking for a 
copy (with translation) of the full text of the issuing 
Member  State's  legislation  applicable  to  the  case 
underlying the EAW (see 7.3.1.3). 

Following  the  Supreme  Court's  decision  of  8 
July 2008  no  longer  texts  of  issuing  Member 
States' applicable provisions are requested. 

7.  Produce  precise  written  guidelines  to  assist  the 
SIRENE  bureau  officers  when  checking  incoming 
SIS alerts, with a view to ensuring a consistent policy 
for flagging cases (see 7.3.1.4). 

The  practice  has  been  changed  and  a 
consistent  policy  is  ensured.  The  executing 
judicial  authority, 
the  Public  prosecutors 
office  in  Amsterdam  is  consulted  by  the 
SIRENE office before a flag may be put on a 

EN 

128 

   EN 

 
 
 
8.  Repeal  Article  11  of  the  implementing  law  (see 
7.3.1.5). 

Article  11  will  not  be  repealed.  There  is  no 
legal reason for it. 

SIS alert.  

9.  Consider  amending  the  implementing  legislation 
so that there is no automatic link between consent to 
surrender  and  renunciation  of  the  entitlement  to  the 
speciality rule, as a means of promoting the use of the 
abbreviated procedure (see 7.3.1.7). 

10. Supplement the criteria applicable to detention in 
EAW procedures so that detention pending surrender 
may  be  ordered  on  grounds  other  than  the  risk  of 
absconding  with  a  view  not  to  hampering  the 
proceedings underlying the EAW (see 7.3.1.8). 

11.  Abandon  the  current  practice  of  requiring  the 
original of the EAW or a copy of the EAW with the 
signature  of  the  issuing  authority  and  signed  by  an 
official  who  is  competent  within  the  court  or  the 
public prosecutor's office to state that the document is 
a  copy  of  the  original  EAW,  as  a  prerequisite  for  a 
court decision on surrender (see 7.3.1.9). 

12. Introduce some mechanism for the review of the 
public  prosecutor's  decision  to  refuse  an  EAW  (see 
7.3.1.10). 

13.  Enlarge  or  reorganise,  as  felt  necessary,  the  trial 
capacity of the Amsterdam District Court with a view 
to ensuring that EAW cases are dealt with within the 
time limits of the Framework Decision (see 7.3.1.11). 

14. Amend the implementing law so that the fact that 
a decision on surrender has not been issued within the 
prescribed  90-day  time  limit  does  not  entail  the 

After careful consideration by the prosecutors 
office  Amsterdam  responsible  for  all  the 
incoming EAW, and reviewing the day to day 
practice  over  a  longer  period  there  is  no 
evidence to be found that persons do not agree 
to 
the 
the  simplified  procedure  because 
speciality rule does not apply. Thus there is no 
longer  a  reason 
the  existing 
legislation. 

to  change 

Furthermore  to  give  a  follow  up  to  this 
recommendation  would  be  contrary  to  the 
ideas voiced in Brussels to make more use of 
the  declaration  envisaged  in  article  27  FD 
EAW. 

Such  change  of  legislation  is  still  under 
consideration. 

This practice is fully compatible with the FD 
EAW thus it will not be abandoned. However, 
it  will  be  changed  once  the  complete  EAW 
can be entered in the SIS. 

in 

recommendation  will 

not 
be 
This 
implemented.  Nothing 
the  FD  EAW 
obliges  to  do  so.  The  recommendation  is  the 
outcome  of  personal  considerations  of  the 
evaluation team. The underlying reasoning of 
the  evaluation 
this 
recommendation  is  neither  based  on  concrete 
negative  findings  nor  is  it  shared  by  the 
competent  judicial  authorities,  including  the 
court in Amsterdam, or by the government of 
The Netherlands. 

team 

lead 

that 

to 

This has been done 

The  advantages  and  disadvantages  of  such 
still  under 
change  of 

legislation 

are 

EN 

129 

   EN 

 
suspension  of  the  detention  pending  surrender,  and 
exceptions to the general rule are admissible based on 
the circumstances of the case (see 7.3.1.12). 

consideration. 

General information  

General Council recommendations 2009 

Language flexibility 

Time limit for translated EAW 

Provisional arrest  

Proportionality test  

Yes,  English  accepted 
additional information 

for  EAW  and 

The  Netherlands  accepts  EAWs  in  English 
aswell. 

Yes, 22 days 

Yes, on a case by case basis  

Is  it  possible  for  a  sought  person  to  get  (state  paid) 
legal  assistance  provided  by  X  in  the  following 
situations: 

1) yes 

2) yes 

(1)  in  X  for  the  underlying  X  criminal  proceedings 
when  he  is  arrested  in  another  Member  State  on  the 
basis of a X EAW and 

(2)  in  another  Member  State,  for  the  underlying 
criminal proceedings when he is arrested in X on the 
basis of an EAW of the other state? 

(X = state in the head of the relevant column) 

Accessory surrender 

Yes for issuing, not for executing 

Flagging 

Sirene  officials  after  consultation  of 
executing 
Prosecutor's office in Amsterdam. 

judicial  authority, 

the 
the  Public 

Competent authority for Art. 111 Schengen requests   Civil Judge 

Seizure and handover of property 

Principle of direct contacts 

Restricted  to  property  found  in  possession  of 
the requested person when arrested  

No  central  authority,  direct  contact  between 
judicial authorities is promoted. 

Integration of recital 12 in implementation law 

Yes  

Dual criminality abolished for attempt and complicity  Yes  

4 months requirement  

Cf FD 

Regime for transfer back 

Domestic 

law,  based  on 

the  1983  CoE 

EN 

130 

   EN 

 
 
 
24/7 rota 

In case of refusal of surrender for the execution of a 
sentence on the ground that the sought person has the 
nationality, or is a resident of the executing State, is 
execution  of  that  sentence  possible  in  the  executing 
state when there is no dual criminality? 

convention 

No, see comments recommendation 5 

Age of criminal liability  

12  yrs,  specific  regimes  for  the  categories 
between 12-16 and 16-18 yrs 

Statistics  

Website  

Jurisdiction ECJ 

2007:yes 

Yes  

Yes 

Case law/preliminary questions  

- Following the Supreme  Court's decision of 8 July 2008 texts of issuing Member States' applicable 
provisions are no longer requested. 

- Wolzenburg (ECJ - C-123/08) 

In relation to a EAW for the purposes of serving a 
custodial sentence legislation require not only that 
the  sentence  be  for  at  least  4  months  but 
simultaneously 
related  offence  be 
the 
punishable by at least 12 months. This is contrary 
to the Framework Decision. 

that 

See comments recommendation 4 

NL  shall  refuse  surrender  if  the  Dutch  executing 
judicial authority finds that there can be no doubt 
that  the  requested  person  is  innocent.  NL  has 
stated this will only occur “in exceptional cases” 
and  if  “it  has  become  crystal  clear  to  the 
executing judicial authority that the person could 
not  have  committed  the  offence”,  for  instance 
“where the person can immediately prove beyond 
any doubt that he was being kept in custody at the 
time  of 
the 
Commission  is  of  the  view  that  making  this  a 
ground  for  refusal  is  contrary  to  the  Framework 
Decision, since it might require an examination in 
substance  of  the  case,  and  also  contrary  to  the 
principle of mutual trust between Member States. 

the  offence”.  Nevertheless 

The Netherlands will not abolish this provision. It 
re-iterates  that  the  provision  is  necessary  in  the 
rare case where before the surrender of the person 
it is already clear that the person will be released 
immediately  after  the  surrender  because  there  is 
no  case  against  him  of  he  is  not  the  person 
wanted.  

However rare these cases are, they have occurred 
in other Member States such as Belgium and one 
of the Baltic States. 

Thus this provision is a provision that strengthens 
procedural safeguards of individuals subjected to 
an EAW. 

NL has stated that it will not surrender a national 
for  the  prosecution  for  an  offence  that  is  not  an 

See comments on recommendation 5. 

EN 

131 

   EN 

 
 
 
 
offence under Dutch law, because it is impossible 
under the relevant treaties and the national law to 
transfer a person where the requirement of double 
criminality  has  not  been  met.  It  does  not  see  a 
contradiction with the Framework Decision, since 
the Framework Decision does not regulate return 
but leaves that to the Member State. Nevertheless 
it is clear that one of the principal advantages of 
this Framework Decision compared with previous 
extradition  arrangements  is  the  removal  of  the 
double  criminality  requirement  in  relation  to  the 
Article  2(2)  list  of  categories  of  offences.  NL's 
position obviously runs counter to this.  

NL 
legislation  makes  no  mention  of 
requirement in case of breach of time limits. 

the 

In practice Eurojust will be informed. 

In  spite  of  Article  24,  in  NL,  the  Ministry  of 
Justice rather than the executing judicial authority 
is 
temporary 
surrender. 

for  postponed  or 

responsible 

justice 

administration  of 

The  Minister  of  Justice  is  responsible  for  the 
proper 
in  The 
Netherlands. Due to this responsiblity he is under 
Dutch  law  the  only  authority  competent  in  cases 
of  postponed  or  temporary  surrender  to  balance 
the  two  interests  at  stake:  the  interest  of  the 
issuing judicial authority by the surrender and the 
interest  of  the  Dutch  prosecutor  by  continuation 
of the pending prosecution in The Netherlands in 
another case. That is what the Minister of Justice 
does  on  the  basis  of  the  advice  of  the  executing 
judicial authority and the prosecutor handling the 
Dutch criminal case. 

EN 

132 

   EN 

 
 
20. POLAND  

Recommendations EAW report 14-12-2007 

Follow up report 4-8-09 and 02-08-2010 

(14240/2/07 REV 2 CRIMORG 158) 

New developments 

PL  has  modified  its  legislation  on  the  EAW 
on  5  November  2009  (the  bill  has  been 
in  OJ  2009.206.1589  from  5 
published 
December 2009), in force since 8 June 2010. 

Summary of introduced changes: 

-  possibility  to  issue  the  EAW  request  if  the 
offence, which falls within the jurisdiction of 
Polish courts, has been committed outside the 
Polish 
(art.  607a  of  Criminal 
territory 
Proceedings Code (CPC)); 
-  possibility  to  issue  the  EAW  ex  officio  by 
the circuit court or by the circuit court on the 
request  of  the  district  court  in  relation  to  the 
judicial  and  executive  stage  of  proceedings 
(art. 607a of CPC); 
- possibility to transfer the EAW to the Police 
unit cooperating with Interpol with the request 
to  institute  an  international  searching  of  the 
requested person in the case there is suspicion 
that  he  or  she  is  staying  in  the  territory  of 
another Member State of the EU (art. 607d § 
1 of CPC); 
-  possibility  to  issue  requests  also  as  regards 
evidences  (art.  607h  §  1  of  CPC)  and 
introducing mechanism to execute this kind of 
requests in PL (new art. 607wa of CPC); 
-  possibility  to  apply  provisional  arrest  up  to 
100  days  (by  the  circuit  court  on  the  request 
of  the  prosecutor)  based  on  the  information 
that in the issuing State there is the final and 
valid  custodial  sentence  or  a  detention  order 
(art. 607k § 3 of CPC); 
- possibility to apply provisional arrest up to 7 
days before receiving the EAW, if the issuing 
authority requests so and ensures that there is 
the  final  and  valid  custodial  sentence  or  the 
detention order (art. 607k § 3a of CPC); 
-  clearing  the  doubts  concerning  the  60-days 
period  for  issuing  surrender  decision,  or  10 
days,  if  the  requested  person  agrees  on  the 
surrender (art. 607m § 1 i 1a of CPC); 
-  possibility  of  the  temporarily  surrender  of 
the  requested  person  based  on  the  agreement 
between issuing and executing authorities (art. 
607o § 2 of CPC). 

1  –  To  consider  solutions,  which  may  for  example  All  prosecutorial  units  which  deal  with  the 

EN 

133 

   EN 

 
 
include 
the  setting  up  of  a  national  platform 
involving  all  national  authorities  involved  in  EAW 
procedures, to increase standardisation of procedures 
and  the  search  for  common  good  practices  (see 
7.1.4.). 

EAW  requests  receive  regularly  instructions 
from  the  supreme  prosecutor’s  office  (since 
31  March  2010  –  Prosecutor’s  General 
Office).  

2  -  To  update  the  guidelines  of  the  National 
Prosecutor  of  2005,  based  on  the  experience  gained 
during the last two years, and to ensure that they are 
well  disseminated,  including  among  Judges  (see 
7.1.4.). 

In  2009  the  National  Prosecutor’s  Office 
published  a  joint  publication  entitled  “Rules 
on  mutual 
in  criminal 
legal  cooperation 
matters  during  the  preparatory  proceedings”, 
concerning  among  others  the  specific  issues 
of the EAW procedure. 

3 - During training sessions, to put specific emphasis 
on the use of the EAW form and on the use of the SIS 
(see 7.1.5.). 

Issues  concerning  the  use  of  the  SIS  are 
regularly  discussed  with  prosecutors  during 
the training sessions. 

4  -  To  take  appropriate  measures  to  be  able  to 
provide  detailed  statistics  on  EAW  procedures  (see. 
7.3.1.5.). 

PL has provided statistics for 2007, 2008 and 
2009. 

5  -  To  amend  the  Constitution  and  the  legislation 
regarding the surrender of Polish nationals in order to 
implement the partial abolition of double criminality 
check and to make it optional for the Courts to refuse 
the execution of the EAW on the basis of territoriality 
(see 7.2.1.) 

6  -  To  amend  the  Constitution  and  the  legislation  in 
order  to  abolish,  in  EAW  procedures,  the  exception 
for political offences (see 7.2.2.). 

to 

the  possibility  for 

7  –  To  finalise  as  soon  as  possible  the  legislative 
launched  (draft  bill  already 
procedure  already 
proposed in Parliament) and to adopt particularly the 
amendments  relating 
the 
competent  Court  to  issue  an  EAW  on  its  own 
initiative  in  trial  and  post-trial  cases  (see  7.3.1.1.);- 
the deletion of the requirement of indications that the 
person  is  on  the  territory  of  an  EU  State  (see 
7.3.1.3.);- the extension of the possibility to issue an 
EAW  in  cases  where  the  Court  has  jurisdiction  over 
the case even though the offence was not committed 
in Poland (see 7.3.1.4.). 

New legislation in force since 8 June 2010. 

- 7.3.1.1. – see: art. 607a of CPC; 

- 7.3.1.3. – see: art. 607a of CPC; 

- 7.3.1.4. – see: art. 607a of CPC; 

8  -  To  reflect  at  national  level  on  the  way  to  ensure 
that  EAWs  are  issued  only  when  the  seriousness  of 
the offence justifies the co-operation measures which 
the execution of the EAW will require (see 7.3.1.2.). 

The  recommendation  was  discussed  at  length 
with 
the  Prosecutor’s  General  Office. 
However  in  the  view  of  absence  of  such 
obligation in the FD on EAW and the legality 
principle  established  in  Polish  CPC,  any 
legislative  action  seems  to  lack  sufficient 
legal base. 

9  –  To  consider  solutions  to  ensure,  before  the 
issuing  of  the  EAW,  a  systematic  verification  of  the 

verification 

Such 
by 
is 
prosecutorial  units  (on  a  basis  of  instructions 

carried 

out 

EN 

134 

   EN 

 
 
 
existence  of  other  EAWs  or  criminal  proceeding 
against the same person (see 7.3.1.5.). 

from the supreme prosecutor’s office). 

10 – To reflect upon the possibilities to create direct 
links  between  the  two  EAW  registers  kept  by  the 
Ministry  of  Justice  and  by  the  National  Prosecutor's 
Office or to merge these registers (see 7.3.1.5.). 

Due  to  the  establishment  of  the  General 
Prosecutor’s Office outside of the structure of 
the  Ministry  of  Justice,  currently  there  is  no 
possibility to merge these registers. 

11 – To consider using the assistance of the College 
of  Eurojust  in  cases  where  repeated  difficulties  are 
experienced with a specific Member State and where 
the  practice  in  that  Member  State  seems  to  be  in 
contradiction  with  the  Framework  Decision  on  the 
EAW  (see  7.3.2.2).  8.1.4.  As  executing  Member 
State 

Appeal  and  circuit  prosecutors,  if  consider  it 
necessary,  are  entitled  to  undertake  direct 
contacts with Eurojust on a basis of § 316 of 
the 
the  procedure  of 
rules  of 
prosecutor’s offices (OJ 2010.49.296). 

internal 

12  -  To  rectify  the  EJN  Atlas  with  regard  to  the 
designation of the authorities competent to receive an 
EAW (see 7.4.1.1.). 

Due  to  the  institutional  changes,  up-to-date 
information  to  the  EJN  Atlas  is  currently  in 
preparation. 

13 - To initiate work in order to allow the reception 
of original EAWs in electronic format (see 7.4.1.2.). 

14  -  To  ensure  that  the  National  Prosecutor's  Office 
and,  at  circuit  level,  prosecutors  with  adequate 
experience in EAW procedures are available 7 days a 
week (see 7.4.1.3.) 

At circuit prosecutor’s offices prosecutors are 
available 7 days a week. 

15  –  To  accelerate  the  preparations  and  internal 
discussions  related  to  the  use  of  the  SIS,  especially 
regarding  the  judicial  control  on  flagging  (see 
7.4.1.4.). 

See point 3 

16  –  To  consider  amending  the  legislation  to  ensure 
that,  in  all  cases,  the  person  arrested  on  the  basis  of 
an EAW has the right to see a defence counsel during 
the period of provisional arrest (see 7.4.1.5.). 

The person arrested on the basis of the EAW 
has  the  right  to  legal  aid  and  legal  cousel  on 
general  rules  (see:  “General 
information, 
General Council recommendations 2009”). 

17  –  To  amend  the  legislation  in  order  to  provide 
explicitly  that  the  original  EAW  and  its  official 
translation  are  not  necessary  for  the  decision  of  the 
Court  on  temporary  detention  and  to  set  longer  time 
limits  for  the  production  of  such  material  for  the 
decision on the execution of the EAW (see 7.4.1.6.). 

However  at  this  point  it  has  to  be  underlined 
that 
the 
the  prosecutor  may  not  refuse 
presence of a legal counsel during the hearing 
of the arrested person (no grounds for such an 
action in CPC). 

New  legislation  in  force  since  8  June  2010.. 
Possibility  to  apply  provisional  arrest  up  to 
100  days  (by  the  circuit  court  on  the  request 
of  the  prosecutor)  based  on  the  information 
that in the issuing State there is the final and 
valid  custodial  sentence  or  a  detention  order 
(art. 607k § 3 of CPC); 

Possibility to apply provisional arrest up to 7 
days before receiving the EAW, if the issuing 
authority requests so and ensures that there is 

EN 

135 

   EN 

 
 
18 - To consider amending the legislation in order to 
accept  EAWs 
than  Polish, 
including, if possible, English (see 7.4.1.6.). 

languages  other 

in 

the final and valid custodial sentence 

19  –  To  consider  amending  the  legislation  and 
increasing the awareness among judges regarding the 
partial 
criminality 
abolition 
requirement (see 7.4.1.8.). 

double 

the 

of 

20 - To consider amending the legislation in order to 
make  it  (at  least)  possible  to  execute  the  EAW  with 
regard to accessory offences (see 7.4.1.9.). 

21 - To amend the legislation regarding the time limit 
for the whole procedure leading to the decision on the 
execution  of  the  EAW  and,  in  the  meantime,  to 
interpret  the  current  legislation  as  providing  that  the 
60  days  time  limit  covers  both  the  first  instance 
procedure and the appeal procedure (see 7.4.1.10.). 

No basis for such amendment in FD on EAW 

New legislation in force since 8 June 2010. 

- see: art. 607m § 1 and § 1a of CPC; 

Notification  of  the  breaches  of  time  limits  is 
in  the  competence  of  Prosecutor’s  General 
Office (see: § 308 of the internal rules of the 
procedure  of  prosecutor’s  offices;  OJ 
2010.49.296). 

Issues discussed during the training sessions 

22  -  To  ensure  that  all  breaches  of  time  limits  are 
notified  to  Eurojust  and  to  clarify,  for  example 
through 
tasks 
regarding this notification to Eurojust (see 7.4.1.11.). 

the  division  of 

training  efforts, 

23  -  To  ensure  that  the  information  provided  to  the 
executing  State  at  the  time  of  the  physical  surrender 
of the person includes information on the duration of 
the detention (see 7.4.1.12.). 

General information  

General Council recommendations 2009 

Language flexibility 

No 

Time limit for translated EAW 

7 days (see: art. 607k § 3a of CPC); 

Provisional arrest  

Up to 7 days before receiving the EAW (see: 
art. 607k § 3a of CPC); 

-  up  to  100  days  for  the  purpose  of  the 
surrender  of  the  requested  person  (see;  art. 
607k § 3 of CPC); 

EN 

136 

   EN 

 
 
 
 
 
 
 
 
 
 
Proportionality test  

No, legality principle 

Is  it  possible  for  a  sought  person  to  get  (state  paid) 
legal  assistance  provided  by  X  in  the  following 
situations: 

(1)  in  X  for  the  underlying  X  criminal  proceedings 
when  he  is  arrested  in  another  Member  State  on  the 
basis of a X EAW and 

(2)  in  another  Member  State,  for  the  underlying 
criminal proceedings when he is arrested in X on the 
basis of an EAW of the other state? 

(X = state in the head of the relevant column) 

As  regards  the  legal  aid  for  the  persons  in 
detention  no  additional  provisions  are  fore-
seen  as  the  general  framework  will  apply. 
This  is:  legal  representation  as  right,  if  the 
person  cannot  afford  provided  by  the  state; 
legal representation always provided if minor, 
deaf,  mute,  blind  or  if  there  is  a  doubt  con-
cerning his/her cautiousness and whenever the 
court  considers  if  necessary  for  a  reason 
making the defence difficult; the costs of legal 
aid  are  counted  according  the  general  rules 
and  if  cannot  be  borne  by  the  defendant  will 
be covered by the state treasury. 

Accessory surrender 

No 

Flagging 

PL entered Schengen on 21-12-2007 

Competent authority for Art 111 Schengen requests 

Seizure and handover of property 

Flagging  is  in  the  competence  of  the  circuit 
courts  (see:  §  328a  of  the  rules  of  the 
procedure of common courts; OJ 07.38.249) 

The  Inspector  General  for  the  protection  of 
personal data 

New legislation in force since 8 June 2010. 
- see: art. 607 & 607wa of CPC; 

Principle of direct contacts 

Yes, MoJ appointed as central authority 

Integration of Recital 12 in implementation law 

Dual criminality abolished for attempt and complicity  No 

4 months requirement  

Regime for transfer back 

that.  If 

it  relates 

Cf  FD.  It’s  not  clear  what  requirement  is 
meant  by 
the 
requirement  mentioned  in  art  2.1  of  the 
FD, then it was implemented in art. 607b 
CPC,  which  excludes  issuing  of  EAW  in 
cases of sentences shorter than 4 months 

to 

Persons  surrendered  under  the  EAW,  on 
condition  of  being  returned  after  the  final 
judgement  has  been  passed  against  them,  are 
returned automatically to the executing state 

24/7 rota? 

Yes 

EN 

137 

   EN 

 
 
 
 
 
In case of refusal of surrender for the execution of a 
sentence on the ground that the sought person has the 
nationality, or is a resident of the executing State, is 
execution  of  that  sentence  possible  in  the  executing 
state when there is no dual criminality? 

No  

Age of criminal liability  

Statistics  

Website 

Generally 17 yrs, yet there are exceptions. 15 
yrs - in a case of committing a listed, serious 
offences (f.ex. homicide, serious bodily harm, 
rape if the victim is a child under 15 yrs old). 

Yes: 2007, 2008:and 2009 

www.ms.gov.pl (available in Polish) 

Jurisdiction ECJ  

No 

Case law/preliminary questions: -  

COM Implementation Report of 2007 

In PL, Article 607 (w) of the domestic law states 
that  the  fact  that  an  act  is  not  a  criminal  offence 
according  to  the  PL  law  does  not  prevent  the 
EAW  from  being  executed  as  far  as  the  EAW 
concerns a foreigner. A contrario, this could mean 
that  there  is  no  possibility  to  execute  a  EAW 
without checking the dual criminality even for the 
list  of  32  offences  contained  in  Article  2  of  the 
Framework  Decision  when  it  concerns  nationals 
and  therefore  render  the  domestic  provision 
contrary to the Framework Decision. 

In  PL,  amendments  to  the  Criminal  Procedure 
Code have extended the list of obligatory grounds 
for  refusal.  According  to  those  amendments,  the 
execution  of  a  EAW  is  not  possible  if  its 
execution  would  breach  the  freedoms  and  rights 
of  a  person,  when  EAW  concerns  (i)  an  offence 
committed without violence for political reasons, 
(ii)  and  offence  committed  by  a  national  on  the 
territory  of  Poland  or  on  board  of  Polish  aircraft 
or  ship,  and  (iii)  an  act  committed  by  a  national 
abroad,  which  does  not  constitute  an  offence 
according to Polish law. Such grounds for refusal 
are  not  provided  for  in  the  Framework  Decision 
and thus are contrary to it. 

Art  4(3)  part  3  FD:  PL’s  legislation  is  not 
sufficiently  clear  in  this  matter  and  could  allow 

EN 

138 

   EN 

 
 
 
 
 
 
for  refusal  where  a  final  judgment  has  been 
passed in any other State, including third states. 

Article  4(6)  has  been  transposed  as  a  mandatory 
ground  for  nationals,  residents  and  people  in 
asylum, which may be contrary to the Framework 
Decision 

Article  607(t)  of  the  Polish  law  states  that 
surrender can be granted under the condition that 
the requested person will be sent back to PL when 
the  final  judgment  is  rendered.  This  would 
amount to the guarantee under Article 5(3) being 
made  automatic  as  the  judge  would  have  no 
discretion in deciding whether or not he could ask 
for the guarantee. Although this has not yet been 
confirmed by PL, it appears that the provision of 
the  domestic  law  may  not  be  in  line  with  the 
Framework Decision. 

Under Article 611(k) of the Polish law, additional 
information  can  be  asked  to  the  Court  by  the 
Ministry  of  Justice.  The  intervention  of  the 
Ministry of Justice at this stage of the proceedings 
does  not  seem  to  be  in  line  with  the  Framework 
Decision. 

Article  12  FD,  keeping  the  person  in  detention: 
all Member States have implemented this article, 
although PL legislation does not specifically refer 
to measures to prevent absconding. 

PL  has  not  transposed  Article  22  (notification  of 
the decision) 

In the event of residents this ground of refusal is 
optional (see: art. 607s § 2 of CPC). 

In our opinion art. 5(3) of FD on EAW allows for 
such  an  interpretation  that  Member  State  can 
choose  to  use  such  possibility  in  every  case 
concerning its nationals or residents. 

Art.  611k  refers  to  the  cooperation  with  the  ICC 
and  is  irrelevant  for  the  EAW  proceedings  as 
such. 

In  the  event  of  the  revoking  of  the  provisional 
arrest,  general  provisions  concerning  provisional 
measures would apply (the competent authorities 
are  to  choose  between  a  bail,  police  supervision, 
prohibition  of  leaving  the  State;  they  are  also 
allowed not to apply any provisional measures, if 
there is no need for them). 

EN 

139 

   EN 

 
 
 
21. PORTUGAL  

Recommendations EAW report 26-04-2007 

Follow up report 03-08-2009 and 02 -08-2010 

(7593/2/07 REV 2 CRIMORG 59) 

New developments 

Penal code amended in September 2007; Article 
5 now comprises a reference to the applicability 
of  PT  law  on  acts  committed  outside  national 
territory  for  PT  nationals  and  customarily 
residents relating to certain crimes 

Handbook updated and published on website 

Area dedicated to the EAW created at the site of 
the Documentation and Comparative law Office 
(http://www.gddc.pt)  

law 

Case 
http://195.23.47.101/mandado/pesquisa/pesquis
apalavrafora.htm 

published 

on 

1 - To take steps to ensure greater compliance with 
the  requirements  set  out  in  the  Attorney-General's 
references to provide copies of all EAWs issued by 
Portugal  to  the  CA  and  to  the  national  member  of 
Eurojust. (See 7.2.1.1.). 

2  -  To  formulate  a  written  request  to  the  General 
Secretariat  of  the  Council  of  the  EU  seeking 
rectification of the Official Journal in respect of the 
linguistic error contained within the Portuguese text 
of Article 5 paragraph 1 of the FD. (See 7.2.1.2.). 

3 - To undertake such residual measures as may be 
necessary  to  complete  the  process  of  providing 
Public  Prosecutors  with  appropriate  and  direct 
access to the SIS (See 7.2.1.6.). 

4  -  To  put  guidance  in  place  to  ensure  that  the 
Portuguese  SIRENE  bureau  notifies  all  of 
Portugal's  relevant  issuing  JAs  in  cases  where 
additional  EAWs  arise  in  respect  of  the  same 
requested person. (See 7.2.1.7.). 

5 – To ensure that the EAW handbook is published 
electronically  on  the  HABILUS  case  management 
system  utilised  by  Portugal’s  Court  Clerks.  (See 
7.2.2.1.). 

Handbook  has  been  revised  in  July  2007  and 
published  on  the  website  (English  version: 
http://195.23.47.101/mandado/manual/Manual_
MDE_INGLES_REVISTO.pdf)  

6  -  That  a  review  of  Portugal's  implementing 
legislation  be  undertaken  so  that  those  Articles 
which  have  been  implemented  contrary  to  the  FD, 
or  which  are  lacking  in  legal  certainty,  may  be 
(See 
reconsidered  and 

redrafted  accordingly. 

No amendments to the EAW law. 

EN 

140 

   EN 

 
 
 
 
 
 
 
7.3.1.1.). 

i.a. refusal grounds 

- 11(d) death penalty 

- 11(e) political grounds 

- 12 (1) (c) jurisdictional locus omitted 

- 12 (1) f confused wording 

7 - That consideration be given to creating a rota of 
Public  Prosecutors  to  enable  greater  provision  of 
appropriate on-site legal advice within the SIRENE 
bureau. (7.3.1.3.). 

8  –  That  an  invitation  be  issued  to  Portugal’s 
executing  JA  requesting  that  it  contribute,  in  a 
manner  deemed  appropriate,  to  the  permanent 
informal working party on the EAW. 

(See 7.3.2.3.). 

General information  

General Council recommendations 2009 

The  position  in  August  2010,  is  that  the 
Conselho  Superior  da  Magistratura  (Supreme 
Judicial  Council)  has  designated  Judge  (Juiz 
Desembargador) 
to 
Fernando  Ventura 
participate in the referred working group. 

Language flexibility 

Yes, relating to Spanish 

Time limit for translated EAW 

Provisional arrest  

Proportionality test  

Yes 48 h 

Yes.  The  PT  handbook  contains  a  generic 
advise  that  'the  EAW  should  be  used  in  an 
efficient,  effective,  proportional  manner, 
taking  account  of  the  legitimate  goals  of  co-
operation, as a tool for the prevention and re-
pression  of  crime.  There  is  also  a  need  to 
adjust  this  instrument,  which  is  based  upon 
the  deprivation  of  personal  freedom,  to  the 
prosecution  of  more  serious  or  more  dama-
ging crime that may substantially justify it.'  

It recommends also considering alternatives to 
the EAW. 

Case  law  of  the  Supreme  Court  prohibits 
disproportionate use of EAWs 

Is  it  possible  for  a  sought  person  to  get  (state  paid) 
legal  assistance  provided  by  X  in  the  following 

(1) 

EN 

141 

   EN 

 
 
 
 
 
situations: 

(2) 

(1)  in  X  for  the  underlying  X  criminal  proceedings 
when  he  is  arrested  in  another  Member  State  on  the 
basis of a X EAW and 

(2)  in  another  Member  State,  for  the  underlying 
criminal proceedings when he is arrested in X on the 
basis of an EAW of the other state? 

(X = state in the head of the relevant column) 

Not 
in 
explicitly  mentioned,  possible 
conformity with the domestic legislation, state 
financial 
paid  assistance, 
resources  are  demonstrated  for  Portugese 
nationals, EU citizens, third country nationals 
and  stateless  persons  holding  a  residence 
permit valid in the EU  

insufficient 

if 

Accessory surrender 

Not explicitly in the legislation. 

Issuing: possible on case by case basis 

Executing: possible 

Flagging 

Competent authority for Art 111 Schengen requests 

Seizure and handover of property  

Principle of direct contacts 

Yes  

Integration of recital 12 in implementation law 

No. recital 13 has been integrated 

Dual criminality abolished for attempt and complicity  Yes  

4 months requirement 

Cf FD 

Regime for transfer back 

83 CoE convention  

24/7 rota? 

In case of refusal of surrender for the execution of a 
sentence on the ground that the sought person has the 
nationality, or is a resident of the executing State, is 
execution  of  that  sentence  possible  in  the  executing 
state when there is no dual criminality? 

Age of criminal liability  

Statistics  

Website  

No  

16 

Yes, 2007 and 2008  

Yes, partly in English 

Jurisdiction ECJ 

Yes  

Case law/preliminary questions 

http://195.23.47.101/mandado/pesquisa/pesquisapalavrafora.htm 

EN 

142 

   EN 

 
 
 
 
 
 
COM Implementation Report of 2007 

No deadline for Constitutional Court 

In  relation  to  Article  5(1)  FD  PT  law  does  not 
provide for a possibility to retrial in cases where 
the  requested  person  has  not  taken  part  in  the 
proceedings  which  may  in  practice  be  a  serious 
issue.  

EN 

143 

   EN 

 
 
 
 
 
22. ROMANIA 

Recommendations EAW report 27-4-2009 

Follow up report 3-8-09 and 30-07-2010 

(8267/09 CRIMORG 53) 

New developments 

New  legislation  was  adopted  in  Romania  with 
effect  from  10  November  2008  (Law  no. 
222/2008).  This  legislation  amends  Title  III  of 
Law No. 302 of 28 June 2004 on the international 
judicial  cooperation  in  criminal  matters  Law 
322/2004,  which  implemented  the  FD  on  the 
EAW in Romania. The 2008 amending legislation 
(which  also  implemented  three  other  FDs)  was 
introduced in respect of the EAW to adjust some 
procedural  aspects  or 
some 
procedural  loopholes  and  did  not  amend  the 
substance of the original implementing law on the 
EAW 

to  eliminate 

Preparation 
recommendations has started. 

of 

implementation 

of 

the 

1.-  Encourage  direct  contacts  of  the  competent 
judicial authorities with their foreign counterparts 
and  devise  measures  necessary  to  establish  such 
contacts 
appropriate 
telecommunications equipment) (see 7.1.3). 

(including 

2.-  Promote  specialisation  of  judicial  authorities 
in EAW cases (see 7.1.4). 

This  recommendation  on  specialisation  was  very 
much  embraced  by  the  Ministry  of  Justice  and 
Citizens  Liberties  and  by  practitioners,  who 
considered  that  it  will  assure  uniformity  and 
efficiency  of  the  procedures.  Decisions  are  to  be 
taken,  especially  at  the  level  of  the  Superior 
Council of Magsitracy. 

complete, 

to 
3.-  Create  appropriate  mechanisms,  able 
easily 
provide 
accessible 
and 
processing  data  on  all  incoming  and  outgoing 
EAWs (see 7.1.5). 

for  gathering 

information, 

up-to-date 

and 

5.- Continue efforts to provide systematic training 
programme on EAW matters as well as language 
training for practitioners (judges, prosecutors and 
court staff) (see 7.1.6)  

Guidelines  for  judges  and  prosecutors  have  been 
published  on  the  website  of  the  Ministry  of 
Justice  and  Citizens  Liberties  and  a  series  of 
newsletters  have  been  sent 
to  courts  and 
prosecutor's  offices  to  facilitate  the  issue  and 
transmission of the EAW  

Within  the  PHARE  Project  RO  05/1B/JH/03 
“Strengthening of the institutional and legal frame 
of international judicial cooperation in Romania” 
between 
(institutional 

partnership 

project 

EN 

144 

   EN 

 
 
  
Romania  and  Austria),  finalized  in  May  2008, 
The Manual on Judicial Cooperation in Criminal 
Matters  for  Judges  and  Prosecutors  and  The 
Manual  on  Judicial  Cooperation  in  Criminal 
Matters for  Court Clerks  were drafted, including 
the  Framework  Decision 
dispositions  on 
2002/584/JHA.  

the 

completion 

Within  the  same  program,  as  well  as  in 
others,  several  seminars  were  organized  to 
discuss,  among  other  topics,  the  aspects 
regarding 
and 
issue, 
transmission of the European Arrest Warrant. 
The  manuals  have  been  sent,  in  printed  and 
electronic  formats,  to  all  the  participants  in 
the  training  seminars  organized  within  the 
(about  1000  participants).  The 
program 
manuals  were  posted  on  the  websites  of  the 
Ministry of Justice and Citizens Liberties, the 
Superior  Council  of  Magistracy  and  of  the 
Prosecutor’s  Office  of  the  High  Court  of 
Cassation and Justice. 

A  national  handbook  on  the  EAW  is  being 
drafted  by 
the  Ministry  and  will  be 
disseminated electroncially. 

The  Ministry  organises  working  meetings  and 
seminars  for  practitioners  through  the  National 
Magistrates School and the National Court Clerk's 
School 

An  electronic  guide  on  International  Judicial 
Cooperation  in  Criminal  Matters  is  available  on 
www.just.ro.  Magistrates  and  Clerks  have  access 
to an Intranet Portal on International cooperation 
on  Criminal  matters  and 
to  a  Romanian 
translation of the EAW handbook  

judicial 
The  Romanian  Judicial  network  on 
cooperation  in  criminal  matters  meets  twice  a 
year  and  has  the  EAW  on  its  agenda  at  each 
meeting 

5.-  Take  measures,  as  considered  appropriate,  to 
promote training of lawyers on EAW matters (see 
7.1.6). 

See response to 4 above 

6.-  Develop  a  uniform  practice  to  verify  if  a 
wanted  person  is  located  on  Romanian  territory 
prior to issuing an EAW (see 7.2.1). 

7.-  Create  mechanisms 

to  enable 

judicial 

EN 

145 

   EN 

 
 
 
authorities  to  check  the  existence  of  pending 
cases against given individuals prior to issuing an 
EAW (see 7.2.2). 

8.-  Promote  the  uniform  understanding  of  the 
effects  of  the  prosecutorial  closure  of  the  case 
under  Article  881(5)  of  the  implementing  law, 
e.g.  by  issuing  guidelines  for  prosecutors  (see 
7.3.1.1). 

9.-  Develop  uniform  practice  concerning  the 
application  of  Article  883  of  the  implementing 
law  on  apprehension  and  arrest  of  the  requested 
person based on an Interpol alert (see 7.3.1.2). 

10.- Take the necessary steps to promote the use 
of preventive measures alternative to detention in 
EAW  cases  where  appropriate,  including–  if 
necessary  –  amending  Article  90  of 
the 
implementing law (see 7.3.1.3). 

General information  

General Council recommendations 2009 

Language flexibility 

Yes French and English 

Time limit for translated EAW 

As soon as possible  

Provisional arrest  

Proportionality test  

48 h after the arrest of the sought person 

48 hours in exceptional circumstances 

Yes  4  yrs  maximum  penalty  threshold  for 
prosecuting  cases.  (art  148  of  the  Romanian 
Criminal Procedural Code) 

Is  it  possible  for  a  sought  person  to  get  (state  paid) 
legal  assistance  provided  by  X  in  the  following 
situations: 

1) no – only consular assistance 

2) no – only consular assistance 

(1)  in  X  for  the  underlying  X  criminal  proceedings 
when  he  is  arrested  in  another  Member  State  on  the 
basis of a X EAW and 

(2)  in  another  Member  State,  for  the  underlying 
criminal proceedings when he is arrested in X on the 
basis of an EAW of the other state? 

(X = state in the head of the relevant column) 

Accessory surrender 

EN 

146 

in 

Not 
executing EAWs 

legislation,  however  possible 

in 

   EN 

 
 
 
 
 
 
Flagging 

-Not yet a Schengen member 

Competent authority for Art. 111 Schengen requests  Not yet a Schengen member 

Seizure and handover of property 

Yes  

Principle of direct contacts 

The  Romanian  Courts  are  encouraged  to 
contact  directly 
foreign 
the 
authorities. Any difficulty will be solved with 
the  assistance  of  the  Romanian  MJo.  (art.83 
paragraph (3) of the Law no. 302/2004 

executing 

Integration of recital 12 in implementation law 

No  (the  transposition  of  the  recital  is  not 
mandatory  but 
to 
understand and give a correct interpretation to 
the provisions of the FD) 

it  can  help 

in  order 

Dual criminality abolished for attempt and complicity  When the offence underlying the EAW is one 
of the 32 offences listed in art. 2 paragraph 2 
of  the  FD,  the  dual  criminality  check  is  not 
the  degree  of 
irrespective  of 
performed, 
participation of the offender 

4 months requirement 

Regime for transfer back 

Art 85 paragraph 2 of the implementation law 
states  that  for  the  other  offences,  surrender 
shall  be  granted  on  condition  that  the  deeds 
underlying the issuing of the EAW constitute 
offences according to Romanian Law 

Transposed  in  article  81  paragraph  (1)  of  the 
Law no. 302/2004 

The  transposition  law  provides  that  "  a 
Romanian  citizen  shall  be  surrendered  based 
on  a  European  arrest  Warrant  issued  in  view 
of  criminal  prosecution  or  trial  on  condition 
that, should a penalty depriving of freedom be 
handed  down,  the  person  surrendered  will  be 
transferred  to  Romania  to  serve  the  penalty." 
The  transfer  procedure  procedure  will  take 
place  under  the  provisions  of  the  European 
Convention  on  the  transfer  of  sentenced 
persons, Strasbourg, 1983 

24/7 rota 

In case of refusal of surrender for the execution of a 
sentence on the ground that the sought person has the 
nationality, or is a resident of the executing State, is 
execution  of  that  sentence  possible  in  the  executing 
state when there is no dual criminality? 

Yes 

No 

Age of criminal liability  

14 years 

EN 

147 

   EN 

 
Statistics  

Website 

Jurisdiction ECJ 

Yes: 2007, 2008 and 2009 

Yes 

Yes 

Case law/preliminary questions  

Decision of the High Court of Cassation and Justice no. 581 of 18 February 2008  

"An analysis of the above legal provisions, and of the other provisions of the special law that 
regulate the execution of European arrest warrants, shows that the role of the Romanian court, 
in  this  procedure,  is  limited  to  checking  whether  the  formal  conditions  of  the  warrant  have 
been met - aspects relating to the existence of the imputed criminal acts, and whether or not 
the  measure  of  provisional  detention  is  justified,  exceed  the  limits  imposed  by  Law  No. 
302/2004-  and  to  dealing  with  any  objections  regarding  identity  raised  by  the  requested 
person and with the grounds for refusal of surrender that the requested person may invoke." 

Preliminary question addressed to the ECJ on 28-07-2010 (C-264/09) 

COM Implementation Report of 2007 

The  2008  amendment  brings  the  RO  law  in  line 
with the FD.  

in  article  2  of 

list  provided  for 

the 
The 
Framework  Decision  has  been  transposed  with 
some  adaptation  made  for  linguistic  reasons  in 
order  to  comply  with  domestic  law.  Those 
adaptations  render  the  scope  of  the  offences  for 
which  dual  criminality  is  abolished  wider  than 
what is provided for in the Framework Decision. 
There is no reference to kidnapping or to hostage 
taking,  rather  a  general  statement  on  illegal 
depravation of freedom, illegal arrest and abusive 
investigation 

Article  5(2)  has  not  been  properly  implemented 
as  the  domestic  law  states  that  a  EAW  will  be 
executed  if  the  legal  system  of  the  issuing 
Member  State  provides  for  the  possibility  of 
reviewing  the  sentence  after  a  service  of  at  least 
20 years. As a result, this provision appears to be 
contrary to the Framework Decision. 

Art  87  of  the  implementation  law  provides  that 
the  execution  of  an  EAW  may  be  subject  to  the 
condition  that,  should  the  offence  be  punished 
with  life  imprisonment,  the  legal  system  of  the 
issuing  Member  State  provides  either  for  the 
possibility of conditional release after a service of 
20 years, or for clemency measures 

No mention in the law of the obligation to notify 
Eurojust in case of breach of time limits. 

to 

According 
the  provisions  of  article  95 
paragraph  5  of  the  transposition  law  "When,  for 
exceptional reasons, the time limits in this Article 
cannot  be  observed,  the  executing  Romanian 
judicial  authority  shall 
the  Eurojust, 
specifying the reasons for the delay" 

inform 

Regime for transfer back 

The  amendment  to  the  law  of  2008  limits  the 
application  of  the  ground  for  refusal  of  article 
4(6)  to  those  cases  in  which  the  judge  grants  (in 

EN 

148 

   EN 

 
 
 
the  same  court  procedure)  the  execution  of  the 
foreign penalty. 

EN 

149 

   EN 

 
 
23. SLOVAK REPUBLIC 

Recommendations EAW report 31-3-2009 

Follow up report 31-7-2009 

(7060/1/09 CRIMORG 33) 

New developments  

The  Slovak  Republic  has  adopted  Act 
No 154/2010  on  the  European  arrest  warrant 
force  on 
to  enter 
(‘EAW’),  due 
the 
1 September  2010.  This  Act  repeals 
original 
Act 
No 403/2004 on the EAW, as amended.  

transposing 

legislation, 

into 

1.-  Consider  rewording  the  implementing  law  to 
ensure greater clarity (see 7.1.1). 

The  new  Act  takes  into  account  the  request 
for greater accuracy and clarity of legislation 

2.- Consider drafting an easy-to-use ('user- friendly'), 
comprehensive  manual,  including  best  practices,  for 
judges and prosecutors (see 7.1.5). 

Judges  and  prosecutors  have  access  to  the 
Slovak version of the European handbook for 
issuing  the  EAW  and  to  the  EJN  Judicial 
Atlas  on  the  website  of  the  Ministry  of 
the 
Justice.  Practical 
functioning  of  the  EAW  are  dealt  with  on  an 
ongoing  basis  as  part  of 
Justice 
Academy’s training activities.  

regarding 

issues 

the 

The  provisions  of  Section  41  of  the  new  Act 
govern assistance from the Ministry of Justice 
to judicial authorities, where this is necessary, 
as follows: 

Section 41- Assistance  

The Ministry of Justice shall provide all necessary 
assistance to the judicial authorities of the State of 
origin  and  the  executing  judicial  authorities  in 
connection  to  any  actions  undertaken  pursuant  to 
this Act.’ 

Because  the  new  Act  on  the  European  arrest 
warrant was under preparation, and because of 
changes  in  the  court  system  in  Slovakia,  the 
information  on  Slovakia  in  the  EAW  Atlas 
has  not  yet  been  finalised.  It  is  intended  that 
the  information  will  be  added  to  the  EJN 
website by the end of 2010. 

A  direct  reference  to  the  EJN  website  has 
been  published  on  the  Ministry  of  Justice’s 
website,  in  the  section  on  information  for 
judicial  bodies.  The  EJN  and  its  use  by 
practitioners 
training 
forms  part  of 
activities  of  the  Ministry  and  the  Justice 
Academy. 

the 

3.-  Take  measures  to  ensure  that  information  on  the 
Slovak  Republic  is  available  in  the  EAW-Atlas  (see 
7.1.6). 

4.- Further promote the use of the European Judicial 
Network  in  EAW  cases  by  facilitating  access  of 
practitioners to the information provided on the EJN 
website (see 7.1.6). 

5.-  Further  promote  among  practitioners  the  use  of  The  issue  of  the  possible  use  of  Eurojust  in 

EN 

150 

   EN 

 
 
Eurojust  as  a  means  to  facilitate  exchange  of 
information  and  provide  assistance  in  resolving 
difficulties,  both  when  issuing  and  executing  EAWs 
(see 7.1.7). 

EAW  procedures  forms  part  of  the  training 
activities  of  the  Ministry  and  the  Justice 
Academy for judges and prosecutors. 

for 
providing  more 
6.-  Consider 
practitioners  to  improve  their  language  skills  (see 
7.1.8). 

facilities 

7.- Consider simplifying the procedure for issuing an 
EAW in pre-trial proceedings (see 7.2.1.1). 

8.-  Consider  introducing  a  specific  provision  on  the 
issue  of  proportionality  or  drawing  up  a  list  of 
indications that can be used by practitioners as a basis 
for  a  proportionality  test  when  issuing  an  EAW 
(7.2.1.3). 

9.-  Bring  Sections  4(5)  of  the  implementing  law  in 
line with the Framework Decision (see 7.3.1.1) 

training  of 

judges,  prosecutors  and 
The 
judicial  officials  in  Slovakia  is  provided  by 
the Justice Academy, which is an organisation 
funded  from  the  budget  of  the  Ministry  of 
Justice  Academy  provides 
Justice.  The 
continuous  training  for  candidate  prosecutors 
and  senior  court  officials,  and 
lifelong 
learning activities for prosecutors and judges, 
including language training.  

The  new  wording  of  Section 5(3)  addresses 
the  issue  of  examining  proportionality  in  the 
issuance of EAWs as follows: 

‘(3)  A  court  shall  not  issue  a  European  arrest 
warrant if it is clear before such issuance that the 
requesting  of  the  person  from  a  foreign  country 
would cause a degree of harm disproportionate to 
the  significance  of  the  criminal  proceedings  or  to 
the consequences of the criminal act.’ 

This  issue  has  been  resolved  in  the  new  Act, 
which  has  been  brought 
line  with 
Article 2  of  the  Framework  Decision.  The 
new  wording  of  Section 4(2)  provides  as 
follows:  

into 

‘(2) A European arrest warrant may be executed:
(a)  if  it  was  issued  in  relation  to  criminal 
proceedings regarding an act which is classed as a 
criminal  act  under  Slovak  law  and  under  the  law 
of  the  State  of  origin,  and  if  it  is  possible,  under 
the law of the State of origin, to impose a custodial 
sentence  with  an  upper  tariff  limit  of  at  least 
twelve  months,  and  if  there  are  no  grounds  to 
refuse  execution  of  the  European  arrest  warrant; 
(b) if it was issued for the purposes of executing a 
custodial  sentence  already  imposed  for  an  act 
which  is  classed  as  a  crime  under  the  law  of  the 
Slovak  Republic  and  the  State  of  origin,  if  the 
sentence  or  its  remaining  period  is  at  least  four 
months  and  if  there  are  no  grounds  to  refuse 
execution of the European arrest warrant. Neither 
any other sentences nor the remaining portions of 
these  other  sentences  are 
this 
calculation.’ 

included 

in 

EN 

151 

   EN 

 
 
 
10.- Consider setting up clear provisions on the time 
limits for the receipt of (language-compliant) EAWs 
(see 7.3.1.2). 

This issue has been resolved in the new Act as 
follows:  

The  time  limit  for  issuing  the  original  of  the 
EAW  and  its  translation  into  the  official 
language of the State is fixed as 40 days from 
the  arrest  of  the  person.  If  this  40-day 
deadline is not met, the court must release the 
detained  person  from  preliminary  custody.  A 
period  of  18  days  has  been  fixed  for  the 
issuance  of  the  EAW,  or  of  a  document 
confirming  its  existence  (without  translation 
the  State 
into 
concerned),  if  the  person  was  detained  and 
taken into preliminary custody on the basis of 
an  SIS  alert.  If  this  deadline  is  not  met,  the 
court has the power to decide, upon a proposal 
from  the  prosecutor,  whether  to  release  the 
person from pre-sentence custody.  

language  of 

the  official 

the 
11.-  Consider  amending  Section  17  of 
implementing 
the  necessity  of 
law  as  regards 
mandatory  detention  in  the  case  of  listed  offences 
(see 7.3.1.3). 

This  issue  has  been  resolved  in  the  new  Act 
by  removing  mandatory  detention  in  these 
cases. 

12.-  Remove  the  reference  to  "important  interests  of 
the  Slovak  Republic"  from  Article  15(1)  of  the 
implementing law (see 7.3.1.4). 

The  reference  to  ‘important  interests  of  the 
Slovak Republic’ has been left in place in the 
new Act, in Section 12, which determines the 
procedure  for  the  flagging  of  an  SIS  alert  by 
the Public Prosecutor’s Office. This provision 
extends  the  principle  of  maintaining  public 
order 
into  proceedings 
regarding the EAW. 

(ordre  public) 

13.- Consider converting the ground for refusal based 
on  territoriality  into  an  optional  ground  for  refusal 
(see 7.3.1.5). 

This issue has been resolved in Section 23(2) 
of  the  new  Act,  which  governs  the  optional 
grounds for refusal to execute an EAW:  

‘(2)  Execution  of  a  European  arrest  warrant  may 
be refused if: 

(...) 

(d)  the  European  arrest  warrant  concerns  acts 
which,  under  Slovak  law,  are  considered  to  have 
been  committed  either  partially  or  entirely  on 
Slovak  territory,  on  a  vessel  sailing  under  the 
Slovak  flag  or  on  an  aircraft  registered  in  the 
register  of  Slovak  aircraft;  execution  of  the 
European  arrest  warrant  may  also  be  refused  in 
this case if the act is not considered a criminal act 
under Slovak law, or 

(...)’ 

14.- Include specific provisions on additional consent  This issue has been resolved in the new Act in 

EN 

152 

   EN 

 
to  subsequent  surrender 

and  consent 
the 
implementing law so as to conform to the Framework 
Decision (see 7.3.1.7). 

in 

the  separate  Section 35,  which  reads  as 
follows: 

‘Section 35 - Additional consent and consent 
to subsequent surrender 

was 

person 

(1) The provisions of the first, third and fifth part 
shall  also  be  applied,  as  appropriate, 
to 
proceedings regarding a request from the Member 
State  to  which  the  person  has  been  surrendered 
from  the  Slovak  Republic  for  consent  for  the 
following:  
(a) to prosecute the person for a crime committed 
before the surrender and different from the one for 
which the person was surrendered on the basis of 
a  European  arrest  warrant,  or  to  execute  a 
different custodial sentence than the one for which 
the 
surrendered, 
(b) to surrender to a different Member State on the 
basis  of  a  European  arrest  warrant  for  criminal 
prosecution  or  to  execute  a  custodial  sentence.
The  competent  executing  judicial  authority  for 
proceedings under paragraph (1) is the one which 
took the decision on the execution of the European 
arrest warrant to which the request for additional 
consent  or  consent  for  subsequent  surrender 
relates. The executing judicial authority shall take 
a decision on the request in paragraph 1 within 30 
days.  If  the  decision  on  the  execution  of  the 
European arrest warrant under Section 21(2) was 
taken  by  the  prosecutor  and  the  conditions  for  a 
decision  on  consent  are  not  met,  the  prosecutor 
shall submit a request for a decision to be taken by 
the  court  which  would  be  competent  to  take  a 
decision under Section 22. 

it 

the 

that 

finds 

(3)  The  executing  judicial  authority  shall  return 
the  request,  without  taking  a  decision,  to  the 
authority  of  the  State  of  origin  which  made  the 
request  for  additional  consent,  if,  during  the 
person: 
proceedings, 
(a)  consented  to  surrender  to  this  Member  State 
and renounces their entitlement to the application 
of  the  speciality  principle  under  Section 31(1), 
(b)  agreed,  after  surrender  to  this  Member  State, 
that  he  or  she  would  explicitly  renounce 
entitlement to apply the speciality principle under 
Section 31(1)  in  relation  to  the  criminal  acts 
covered by the request for additional consent and 
which were committed before the surrender. 

(4)  The  procedure  in  the  general  regulation  on 
criminal  procedure  applies  to  proceedings  on 
requests  from  a  different  Member  State  and  to 
which the person was surrendered on the basis of 
a  European  arrest  warrant, 
to 
surrender the surrendered person to a third State 

for  consent 

15.-  Consider  including  in  the  implementing  law  a 
specific provision on temporary surrender in line with 

This  issue  has  been  resolved  in  the  new  Act 
with  the  separate  Section 30,  which  reads  as 

EN 

153 

   EN 

 
the Framework Decision (see 7.3.1.8). 

follows:  

‘Section 30 -  Temporary surrender of a  requested 
person 

(1)  At  the  request  of  a  judicial  authority  of  the 
State of origin the court may allow the temporary 
surrender  of  a  person  to  the  State  of  origin  if, 
following  a  decision  on  the  execution  of  a 
European arrest warrant, a decision was taken to 
postpone  surrender  under  Section 29(1).  If  a 
prosecutor  took  a  decision  on  a  European  arrest 
warrant  in  accordance  with  Section 21(2),  the 
decision  on  the  temporary  surrender  of  a  person 
shall  be  taken  by  a  court,  on  a  proposal  by  the 
prosecutor. The terms of the temporary surrender 
of  a  person  shall  be  agreed  in  writing  directly 
between the court and the judicial authority of the 
State of origin. The court may allow the temporary 
surrender of a person only when it has no effect on 
their  ability 
the 
proceedings on their surrender. 

to  make  a  statement 

in 

(2) If the court allows the temporary surrender of 
a  person,  it  shall  also  require  that  during  the 
temporary  surrender  the  person  must  be  held  in 
custody.  If,  in  its  request  for  the  temporary 
surrender of a person, the judicial authority of the 
State of origin does not stipulate the period of time 
for  which  it  is  requesting  surrender, nor  state  the 
procedures  which  it  wishes  to  execute  in  relation 
to  the  person,  the  court  shall  ask  it  to  send  an 
updated  request  containing  this  information.  In 
this  case  it  may  impose  an  appropriate  deadline 
for the submission of an updated request.’ 

General information  

General Council recommendations 2009 

Language flexibility 

Slovak language required.  

Time limit for translated EAW 

Provisional arrest  

Proportionality test  

Special language regimes have been arranged 
on  the  basis  of  bilateral  agreements  with  AT 
(German),CZ (Czech) and PL (Polish). 

40 days 

40 days 

Proportionality is governed by the Act for the 
issuance  of  the  European  arrest  warrant  in 
Section 5(3)  of  the  new  Act,  which  reads  as 
follows:  

‘(3)  A  court  shall  not  issue  a  European  arrest 

EN 

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Is  it  possible  for  a  sought  person  to  get  (state  paid) 
legal  assistance  provided  by  X  in  the  following 
situations: 

(1)  in  X  for  the  underlying  X  criminal  proceedings 
when  he  is  arrested  in  another  Member  State  on  the 
basis of a X EAW and 

(2)  in  another  Member  State,  for  the  underlying 
criminal proceedings when he is arrested in X on the 
basis of an EAW of the other state? 

(X = state in the head of the relevant column) 

Accessory surrender 

Flagging 

warrant if it is clear before such issuance that the 
requesting  of  the  person  from  a  foreign  country 
would cause a degree of harm disproportionate to 
the  significance  of  the  criminal  proceedings  or  to 
the consequences of the criminal act.’ 

surrender 

Accessory 
is  possible  under 
Section 4(6)  of  the  new  Act,  which  provides 
that: 

‘(6) If a person’s surrender is requested in relation 
to  several  criminal  acts,  of  which  at  least  one 
meets  the  conditions  in  paragraphs  1  to  5,  a 
European arrest warrant may also be executed or 
issued in order to prosecute for other criminal acts 
or 
to  execute  other  sentences  which  would 
otherwise  be  inadmissible  on  the  grounds  of  the 
magnitude of the sentence or the remainder of the 
sentence.’ 

Flagging  of  the  alert  shall  be  done  by  the 
prosecutor  in  accordance  with  Section 12  of 
the new Act, which reads as follows:  

‘Section 12.- Preliminary examination of the 
alert 
If the Public Prosecutor’s Office of the Slovak 
Republic (hereinafter “the Public 
Prosecutor”) finds that the alert in 
Section 3(l) does not comply with the law, 
with international commitments or with the 
essential interests of the Slovak Republic, or if 
conditions set out in separate legislation have 
been met8), it shall order SIRENE to flag the 
alert; this body shall flag the alert 
immediately. The flagging of an alert prevents 
the detention of a person; an alert flagged in 
this way may only be used to seek a person in 
order to determine their place of residence. 

Competent authority for Art 111 Schengen requests 

EN 

155 

   EN 

 
 
 
Seizure and handover of property 

Possible, SK authorities prefer MLA  

Principle of direct contacts 

Slovakia  has  not  designated  a  central 
authority  pursuant 
the 
Framework  Decision.  Section 36  of  the  new 
Act  governs  in  general  terms  direct  contact 
between judicial authorities. 

to  Article 7(2)  of 

Integration of Recital 12 in implementation law 

Dual criminality abolished for attempt and complicity  Yes  

4 months requirement  

Regime for transfer back 

Domestic law/1983 CoE convention  

24/7 rota 

In case of refusal of surrender for the execution of a 
sentence on the ground that the sought person has the 
nationality, or is a resident of the executing State, is 
execution  of  that  sentence  possible  in  the  executing 
state when there is no dual criminality? 

The general rule established by Section 23(4) 
applies:  

‘(4) The fact that the requested person is a citizen 
of the Slovak Republic does not constitute grounds 
to refuse execution of a European arrest warrant.’ 

The  question  of  introducing  optional grounds 
to  refuse  execution  of  a  European  arrest 
warrant  pursuant  to  Article 4(6)  is  being 
examined at national level.. 

Age of criminal liability  

14 years 

Statistics  

Website 

Yes, 2007, 2008 and 2009 

Jurisdiction ECJ 

Yes (2009) 

Case law/preliminary questions: - 

COM Implementation Report of 2007 

No  deadline  for  deciding  the  highest  appeal 
(Supreme Court) 

SK law does not provide for temporary surrender 
pursuant  to  article  24(2).  SK  has  informed  the 
Commission that the provisions contained within 
Article  24  of  the  Framework  Decision  may  be 
implemented  by  a  new  amending  legislation 
which should be adopted in June 2007 

This issue has been resolved in the new Act with 
the  separate  Sections 29  and  30,  which  read  as 
follows:  

‘Section 29 - Postponement of surrender 

(1) A court or prosecutor which took a decision on the 
execution of a European arrest warrant may decide, by 

EN 

156 

   EN 

 
 
 
 
 
 
 
 
issuing a resolution, to postpone its implementation, if 
criminal  proceedings  against  the  person  are  ongoing 
in the Slovak Republic or if the person is serving or is 
due  to  serve  a  custodial  sentence  for  a  different 
criminal  act  than  the  one  for  which  the  European 
arrest  warrant  was  introduced.  No  complaints  are 
admissible  against 
the  decision  of  a  court  or 
prosecutor to postpone surrender.  

(2) If the reasons underlying the decision to postpone 
surrender  have  changed  substantially,  the  executing 
judicial  authority  which  took  a  decision  pursuant  to 
paragraph 1 may revoke its decision. Appeals against 
this decision are inadmissible.  

Section  30  -  Temporary  surrender  of  a  requested 
person 

(1) At the request of a judicial authority of the State of 
origin the court may allow the temporary surrender of 
a person to the State of origin if, following a decision 
on  the  execution  of  a  European  arrest  warrant,  a 
decision  was  taken  to  postpone  surrender  under 
Section 29(1).  If  a  prosecutor  made  a  decision  on  a 
European  arrest  warrant 
in  accordance  with 
Section 21(2), the decision on temporary surrender of 
a  person  shall  be  taken  by  a  court,  on  a  proposal  by 
the prosecutor. The terms of temporary surrender of a 
person shall be agreed in writing directly between the 
court and the judicial authority of the State of origin. 
The  court  may  allow  the  temporary  surrender  of  a 
person  only  when  it  has  no  effect  on  their  ability  to 
make  a  statement 
their 
surrender. 

the  proceedings  on 

in 

(2)  If  the  court  allows  the  temporary  surrender  of  a 
person, it shall also require that during the temporary 
surrender the person must be held in custody. If, in its 
request  for  the  temporary  surrender  of  a  person,  the 
judicial  authority  of  the  State  of  origin  does  not 
stipulate  the  period  of  time  for  which  it  is  requesting 
surrender, nor state the procedures which it wishes to 
execute in relation to the person, the court shall ask it 
to 
this 
information. In this case it may impose an appropriate 
deadline for the submission of an updated request 

request  containing 

send  an  updated 

Article  25(5)  SK  has  made  no  provision  for 
transit from a third state  

28(3) has not been transposed by SK 

This issue has been resolved in the new Act with 
the separate Section 35, which reads as follows:  

Section  35  -  Additional  consent  and  consent  to 
subsequent surrender 

(1) The provisions of the first, third and fifth part shall 
also  be  applied,  as  appropriate,  to  proceedings 
regarding  a  request  from  the  Member  State  to  which 

EN 

157 

   EN 

 
 
for 

for 

the 

consent 

the  person  has  been  surrendered  from  the  Slovak 
following: 
Republic 
(a)  to  prosecute  the  person  for  a  crime  committed 
before  the  surrender  and  different  from  the  one  for 
which  the  person  was  surrendered  on  the  basis  of  a 
European  arrest  warrant,  or  to  execute  a  different 
custodial  sentence  than  the  one  for  which  the  person 
was 
surrendered, 
(b)  to  surrender  to  a  different  Member  State  on  the 
basis  of  a  European  arrest  warrant  for  criminal 
to  execute  a  custodial  sentence.
prosecution  or 
The  competent  executing 
for 
proceedings under paragraph (1) is the one which took 
the  decision  on  the  execution  of  the  European  arrest 
warrant to which the request for additional consent or 
consent 
for  subsequent  surrender  relates.  The 
executing  judicial  authority  shall  take  a  decision  on 
the  request  under  paragraph  1  within  30  days.  If  the 
decision  on  the  execution  of  the  European  arrest 
the 
warrant  under  Section 21(2)  was 
prosecutor  and  the  conditions  for  a  decision  on 
consent  are  not  met,  the  prosecutor  shall  submit  a 
request  for  a  decision  to  be  taken  by  the  court  which 
take  a  decision  under 
would  be  competent 
Section 22. 

judicial  authority 

taken  by 

to 

the 

(3)  The  executing  judicial  authority  shall  return  the 
request,  without  taking  a  decision,  to  the  authority  of 
the  State  of  origin  which  made  the  request  for 
additional consent, if, during the proceedings, it finds 
that 
person: 
(a)  consented  to  surrender  to  this  Member  State  and 
renounces  their  entitlement  to  the  application  of  the 
speciality 
Section 31(1), 
(b) agreed, after surrender to this Member State, that 
he  or  she  would  explicitly  renounce  entitlement  to 
apply  the  speciality  principle  under  Section 31(1)  in 
relation to the criminal acts covered by the request for 
additional  consent  and  which  were  committed  before 
surrender. 

principle 

under 

SK  has  not  transposed  Article  28  at  all  in  the 
transmitted legislation 

This issue has been resolved by the provisions of 
Section 33 to 35 (see above) 

(...)’ 

EN 

158 

   EN 

 
 
24. SLOVENIA 

Recommendations EAW report 22-9-2008 

Follow up report 30-04-2009 and 03-08-2010 

(7301/2/08 REV 2 CRIMORG 44) 

New developments 

regards  proposed 

The  recommendations  correspond  to  the  situation 
existing  in  Slovenia  at  the  time  of  the  evaluation 
legal  amendments, 
visit.  As 
reference  is  made  where,  according  to  the  draft  the 
expert team was provided with, action is taken in the 
Act  on  cooperation  in  criminal  matters  with  the 
European Union Member States. 

tools  aimed  at 
1  –  To  consider  establishing 
facilitating  the  practical  application  of  the  EAW  by 
practitioners,  such  as  guidelines  to  assist  judicial 
authorities  to  fill  in  the  EAW  and  other  means 
deemed  appropriate  to  provide  expertise  to  those 
involved in EAW procedures and to further circulate 
the  information  available  on  the  application  of  the 
EAW in practice (see 7.1.9). 

In  February  2008  a  new  single  act  has  come 
into  force  comprising  all 
instruments  of 
cooperation in the field of criminal law within 

the EU - Act on International Co-operation in 
Criminal Matters between the Member States 
of  the  European  Union  of  25  October  2007, 
which entered into force on 24 February 2008 
(hereinafter  referred  to  as:  ZSKDČEU).  The 
latter  has  among  others  substituted  also  the 
provisions  of  the  Act  on  the  European  arrest 
warrant and surrender procedures (hereinafter 
referred 
the 
initially 
Slovenia 
Republic 
Framework 
the  Council 
implemented 
Decision of 13 June 2002 on the EAW and the 
surrender  procedures.  The  indicated  Act  also 
supplemented, upgraded and eliminated some 
the 
deficiencies  with 
Republic of Slovenia was criticized during the 
implementation - evaluation phase 

to  as:  ZENPP),  by  which 

to  which 

regard 

had 

of 

The  Republic  of  Slovenia  didn't  adopt  any 
special  national  manuals  in  connection  with 
the  implementation  of  the  EAW,  since  we 
believe that the European handbook on how to 
issue a European Arrest Warrant is sufficient. 
Namely, it contains all necessary information 
in connection with the order and transmission 
of the warrant; in addition, the institute of the 
European arrest warrant was comprehensively 
and  from  various  aspects  also  presented  in 
various  educational  seminars  for  criminal 
judges  and  state  prosecutors.  However,  we 
would like to add that all practicians who are 
responsible 
and 
implementation  of  European  arrest  and 
surrender warrants have access to the national 
the 
case-law 
implementation of the warrant in the Republic 
of  Slovenia  as  well  as  to  all  other  internet 
sites,  which 
and 
contains 
comprehensive  information  on  the  EAW. 
They  are  also  in  due  time  notified  by  the 
Ministry  as  well  as  the  EJN  contact  points 
about  new  developments,  modifications  and 
recommendation  adopted  or  agreed  upon 
among various institutes.  

connection 

sufficient 

issuing 

with 

the 

for 

in 

EN 

159 

   EN 

 
 
2  -  To  adopt  measures  to  ensure  that  appropriate 
training  programmes  are  put  in  place,  so  that 
extensive and regular training on EAW is provided to 
judges,  state  prosecutors  and  defence  lawyers  (see 
7.1.10). 

3 - To re-examine the transposition of the Framework 
Decision  into  national  law  as  regards  the  speciality 
rule, so that the taking of the surrendered person into 
custody  is  expressly  included  in  the  scope  of  the 
domestic legislation (see 7.2.3). 

4  -  To  consider  establishing  a  mechanism  allowing 
the  Slovenian  judicial  authorities,  when  proceeding 
against a person surrendered pursuant to an EAW, to 
check the conditions of the surrender, with a view to 
respecting the speciality rule (see 7.2.3). 

lawyers,  moreover 

The  institute  of  the  European  arrest  warrant 
was  comprehensively  and 
from  various 
aspects  also  presented  in  various  educational 
seminars for criminal judges, state prosecutors 
several 
as  well  as 
publications  regarding  the  implementation  as 
well  as  the  application  of  the  EAW  are 
available to all practicians, so we believe that 
enough 
parties 
all 
information on the EAW. Several seminars on 
the  application  of  the  EAW  in  practice  were 
also  organized  by  the  Ministry  over  the  last 
two years 

interesting 

have 

As we already explained during the evaluation 
phase, it is not possible to impose a detention 
against  the  person  to  which  the  principle  of 
speciality  applies,  however  the  requesting 
person  may  be  put  in  the  police  "custody" 
before 
the 
latter 
the 
investigative judge 

is  brought  before 

As  pointed  out  before,  only  the  court  may 
issue  a  decision  on  detention  in  criminal 
proceedings,  that  is,  in  a  judicial  procedure. 
Indeed, the court does not verify ex officio in 
the  process  of  surrender  whether  the  person 
sought  has  already  been  convicted  or  other 
criminal  proceedings  against  him  or  her  are 
underway.  It  is,  however,  a  fact  that  Act  on 
criminal procedure makes provision in Article 
227 that the person charged has to be asked at 
the first hearing whether he or she has already 
been  convicted  and  whether  the  conviction 
has  been  erased,  when  and  why  and  whether 
and  when  he  or  she  has  served  the  sentence, 
for  another 
whether  another  procedure 
criminal  offence  against  him  or  her 
is 
underway,  meaning  effectively  that  the  court 
also  indirectly  verifies  the  provision  of  the 
principle of speciality. It is also the role of the 
District state prosecutor that on the "surrender 
hearing" brings up all circumstances, relevant 
to  a  decision  on  surrender,  among  which  is 
also  the  circumstance  about  the  ongoing 
investigations  -  criminal  proceedings  against 
the  requested  person  before  the  competent 
Slovenian authorities.  

5 - To re-examine the transposition of the Framework 
Decision into national law as regards the subsequent 
surrender, so that the surrendered person may be re-
surrendered  solely  with  his  consent  to  a  Member 
State  other  than  the  executing  State  without  the 

The provision of article 28/2 (b) of the FD is 
implemented  in  the  article  44  in  relation  to 
article  45  of  the  ZSKZDČEU,  which  among 
the  principle  of 
that 
others  determines 
the  person 
speciality  shall  not  apply 

if 

EN 

160 

   EN 

 
consent of the latter (see 7.2.4). 

6  -  To  amend  the  implementing  law  so  that  it 
conforms  to  the  Framework  Decision  as  regards  the 
list  of  offences  not  covered  by  double  criminality 
(see 7.3.1.1)  

expressly  renounced  his  entitlement  to  the 
speciality  rule  before  or  after  the  surrender. 
The  person  surrendered  to  the  Republic  of 
Slovenia may renounce his entitlement to the 
principle  of  speciality  for  criminal  offences 
committed  prior  to  his  surrender  before  the 
national  court  where  the  criminal  procedure 
for  the  criminal  offence  committed  prior  to 
the surrender is being conducted or before the 
investigating judge of the court competent for 
the  execution  of  the  sentence  or  surrender 
procedure.  The  person  must  be  instructed  on 
the meaning of the principle of speciality, the 
consequences  of  renunciation  of  entitlement 
to  the  principle  of  speciality  and  on  the  fact 
that renunciation is voluntary and may not be 
revoked.  The  surrendered  person  without  a 
counsel  must  also  be  instructed  that  he  is 
entitled  to  engage  a  counsel  of  his  own 
choice, etc…" 

ZSKZDČEU  implements  an  entire  list  of 
criminal  offences  referred  to  in  Article  2  of 
the  Framework  Decision.  Consequently,  the 
criminal  offence  of  »swindling«,  as  well  as 
the  "illicit  trafficking  in  prohibited  drugs"  is 
included in the list and the criminal offence of 
extortion  is  no  longer  limited  only  to  the 
qualified form. The list is as follows :  

- participation in a criminal organization; 

- terrorism;  

- trafficking in human beings; 

-  sexual  exploitation  of  children  and  child 
pornography; 

- illicit trafficking in prohibited drugs; 

-  illicit  trafficking  in  arms,  ammunition  and 
explosives; 

- corruption; 

interests 

-  fraud,  including  fraud  that  threatens  the 
European 
financial 
Communities  within 
the 
Convention on the Protection of the Financial 
Interests  of  the  European  Union  of  26  July 
1995; 

of 
the 
the  context  of 

- money laundering; 

EN 

161 

   EN 

 
- forgery of money;  

- computer-related crime; 

-  criminal  acts  against  environment  and 
natural  goods,  including  unlawful  trade  in 
threatened  animal  species  and  plant  species 
and varieties; 

- facilitation of unlawful crossing of the state 
border and residence within the state; 

- murder and grievous bodily injury;  

- illicit trade in human organs and tissue; 

-  kidnapping,  unlawful  deprivation  of  liberty 
and hostage taking; 

- racism and xenophobia; 

- group robbery or armed robbery; 

- illicit trafficking in cultural goods, including 
antiquities and works of art;  

- swindling; 

- racketeering and extortion; 

-  forgery  of  industrial  products  and  sale  of 
such products; 

- forgery of official documents and trading in 
them;  

- forgery of payment instruments; 

- illicit trafficking in hormonal substances and 
other growth promoters; 

-  illicit  trafficking  in  nuclear  and  radioactive 
substances; 

- trafficking in stolen vehicles; 

- rape; 

- arson, 

-  criminal  acts  within  the  jurisdiction  of  the 
International  Criminal  Court,  established  by 
the Rome Statute, 

- hijacking of an aircraft or ship; 

EN 

162 

   EN 

 
7 - To re-examine the transposition into national law 
with  regard  to  the  penalty  threshold  referred  to  in 
the  Framework  Decision  (see 
Article  2(2)  of 
7.3.1.1)2. 

8  -  To  take  steps  to  correct  the  current  judicial 
practice  of  checking  the  factual  description  of  the 
EAW against their own Penal Code in respect of the 
offences  listed  in  the  Framework  Decision  (see 
7.3.1.2). 

9  -  To  take  steps  to  correct  the  practice  and  the 
underlying  legal  criteria  applicable  to  detention  in 
EAW proceedings, in particular as regards Slovenian 
nationals and residents (see 7.3.1.3). 

- sabotage. 

in 

As  we  already  pointed  out  the  Slovenian 
judicial  authorities  understand  this  provision 
the  Framework  Decision, 
as  set  out 
meaning  that  they  do  not  verify  double 
criminality  in  relation  to  offences  for  which 
they  should  not  verify  it  in  compliance  with 
the  Framework  Decision.  However  to  clarify 
this  provision,  the  wording  regarding  the 
threshold  for  sentences  has  been  corrected  in 
Article 8 of ZSKZDČEU in order to be more 
understandable. 

determines 

The  new  provision  of  the  article  8  of  the 
ZSKZDČEU 
that 
"…notwithstanding  the  double  criminality, 
surrender shall be admissible if the warrant is 
issued  for  the  criminal  offence  sanctioned  by 
the  law  of  the  issuing  Member  State  by 
imprisonment  of  not  less  than  three  years  as 
the  maximum  sentence  of  deprivation  of 
liberty and if such offence is classified under 
the  law  of  this  Member  State  as  one  of  the 
following  types  of  criminal  offences…"  - 
consequently  the  threshold  is  the  same  as  in 
the Article 2(2) of the Framework Decision 

that 

this  conclusion  of 

We  believe 
the 
evaluation team was to general and unfounded 
and did not reflect the whole judicial practice. 
If this was indeed the case, significantly more 
orders would be rejected, which is not true, as 
confirmed by statistical data. 

The  institute  of  detention  or  other  alternative 
measures  is  regulated  in  the  Article  23  of 
ZSKZDČEU,  which  provides  for  a  measure 
proportionate  to  a  concrete  situation,  since  in 
compliance  with  Article  192  of  ZKP,  to 
ensure  the  presence  of  the  person  charged 
(and,  consequently,  to  successfully  complete 
the  procedure  of  the  surrender  of  the  person 
sought)  instead  of  detention,  the  following 
measures  may  be  ordered:  writ  of  summons, 
compulsory  appearance,  promise  of 
the 
charged  person  not  to  leave  his  or  her 
residence,  restraining  orders,  reporting  to  a 
police  station,  bail,  and  house  arrest.  When 
deciding on which measure to apply, the court 
has  to  comply  with  the  conditions  laid  down 
for  individual  measures.  When  deciding  on 

EN 

163 

   EN 

 
 
the  measure,  the  court  may  not  use  measures 
more stringent than those required to achieve 
the  court’s  purpose,  since  the  Constitutional 
Court of the Republic of Slovenia has decided 
that  automatic  detention  is  not  in  compliance 
with  the  Constitution.  Therefore,  for  each 
individual case, it has to be assessed whether 
to  issue  a  detention  against  the  person  or  a 
whether  more 
is  more 
appropriate (bail, house arrest etc). Moreover, 
for a detention order to be issued,  more facts 
need to be considered, such as flight risk.  

lenient  measure 

However  we  should  pointed  out  that  indeed 
there were some changes in the ZSKZDČEU. 
According  to  article  17  of  the  ZSKZDČEU, 
the  investigative  judge,  after  the  verification 
that  EAW  contains  all  the  data  required  for 
taking  a  decision  on  its  execution  and  if  it 
complies with the terms as stated in Article 8 
issues  an  order  on  forced  production  of  the 
requested person. If an arrest warrant has been 
issued,  police  officers  may  arrest 
the 
requested person also without a prior order on 
forced  production  as  referred 
the 
preceding  paragraph  if  there  is  a  risk  that  he 
will  abscond  or  go  into  hiding.  Consequently 
the  provision  that  investigative  judge  must 
first  summon  the  individual  to  a  hearing  has 
been abolished. 

to 

in 

10 - To take the necessary steps to ensure that in the 
course  of  an  EAW  procedure  the  existence  of 
ongoing  investigations  or  proceedings  against  the 
requested  person,  or  prior  convictions,  is  checked 
(e.g.  through  appropriate  databases  or  other  means) 
(see 7.3.1.5). 

The  uniform  electronic  evidence  which 
enables  the  systematic  verification  of  current 
investigations  or  proceedings  against 
the 
person sought is already applicable in practice 
(separate evidence for courts as well as for the 
prosecutor's offices). 

11  -  To  take  the  necessary  measures  to  ensure  that 
Slovenia  will  enforce  sentences  passed  against  its 
own  nationals  and  residents  in  the  issuing  Member 
State  for  offences  not  punishable  under  Slovenian 
law (see 7.3.1.6). 

The institute of the execution of sentences 
passed  against  Slovenian  nationals  and 
residents  imposed  in  the  issuing  state  is 
also  regulated  by  the  new  implementing 
law  -  article  72,  which  determines  that  if 
the  national  court  receives  an  order 
against  a  national  of  the  Republic  of 
Slovenia  or  of  another  Member  State 
residing in the territory of the Republic of 
Slovenia, or an alien who is in possession 
of  a  permanent  residence  permit  in  the 
Republic  of  Slovenia,  with  the  aim  of 
executing 
sentence, 
precautionary  or  other  sanction  that  is 

custodial 

a 

EN 

164 

   EN 

 
 
in 

to 

itself 

enforce 

to  serve 

the  sentence 

carried  out  by  detention  order,  and  all 
other conditions are met for the surrender 
of  such  a  person,  and  the  person  has 
agreed 
the 
Republic  of  Slovenia  and  the  national 
court  binds 
the 
judgement,  the  order  shall  be  treated  as  a 
request  for  the  execution  of  a  custodial 
sentence,  precautionary  or  other  sanction 
that  is  carried  out  by  detention  order.  In 
such  a  case, 
judgement 
imposed  in  the  issuing  State,  shall  be 
enforced in the Republic of Slovenia also 
if the offence in the order is not a criminal 
offence  under  the  law  of  the  Republic  of 
Slovenia. 

the  criminal 

If  the  order  allowed  for  the  surrender  of  a 
national  of  the  Republic  of  Slovenia,  or  a 
national  of  a  Member  State,  residing  in  the 
territory  of  the  Republic  of  Slovenia,  or  an 
alien  who  is  in  possession  of  a  permanent 
residence permit in the Republic of Slovenia, 
conditioned  by  returning  the  person  to  the 
Republic  of  Slovenia  after  the  proceeding  is 
concluded, the criminal judgment imposed by 
the  court  of  the  ordering  State  shall  be 
enforced  in  the  Republic of  Slovenia, even  if 
the  offence  in  the  order  is  not  a  criminal 
offence  under  the  law  of  the  Republic  of 
Slovenia as well as without the consent of the 
person. 

The ZSKZDČEU eliminated the provision, by 
which  the  Republic  of  Slovenia  implemented 
the  Council  Framework 
Article  32  of 
Decision on the European arrest and surrender 
limited 
consequently 
warrant, 
the 
and 
application  of 
to  criminal 
institute 
this 
offences committed after 7 August 2002 

that 

the  provision  of 

With  regard  to  this  recommendation  it  has  to 
be  mentioned 
the 
Framework  Decision  that  governs  the seizure 
of items is partly implemented in Article 24 of 
ZSKZDČEU,  and  partly  also  in  the  existing 
national  regulations  –  Criminal  code.  In 
accordance  with  the  Slovenian  legislation, 
items from a criminal offence must be seized 
–  this  includes  items  that  were  used  or 
intended for use while  committing a  criminal 
offence,  or  were  produced  with  a  criminal 
offence,  as  well  as  unlawful  pecuniary 

12  -  To  abrogate  Article  36(3)  of  the  implementing 
law (see 7.3.1.7). 

the 

13  -  To  consider  amending 
implementing 
legislation  with  a  view  to  establishing  clear  rules 
enabling courts executing EAWs to proceed to seize 
property  in  the  possession  of  the  requested  person 
that  may  be  used  as  evidence,  or  that  has  been 
acquired by him as a result of the offence, without a 
prior request from the issuing authority (see 7.3.1.8). 

EN 

165 

   EN 

 
advantage  and  items  that  could  be  used  as 
evidence in a criminal proceeding. 

a 

authority  orders 

Article 24 of the ZSKZDČEU also determines 
that  if  the  issuing  judicial  authority  so orders 
in  a  warrant  or  when  so  determined  by  the 
national criminal code, the investigating judge 
shall seize and hand over the items that might 
serve  as  evidence  in  criminal  proceedings  to 
the  issuing  judicial  authority.  If  the  issuing 
judicial 
temporary 
protection  of  the  request  for  the  seizure  of 
financial  profit,  the  investigating  judge  shall 
order  temporary  protection  of  the  property  in 
the  Republic  of  Slovenia.  The  court  shall 
decide on the seizure in a decision whereby it 
decides  on  the  surrender..  Items,  financial 
benefit  or  property  as  referred  to  in  the 
preceding  paragraphs  shall  be  seized  and 
handed  over  also  in  the  case  when  the 
surrender  cannot  be  carried  out  because  the 
requested person has died or absconded. If the 
domestic  court  seized  items  or  financial 
benefit  or  property  in  criminal  proceedings 
that  is  underway,  it  shall  retain  the  items  or 
hand  them  over  temporarily  to  the  issuing 
Member  State,  on  condition  that  they  are 
returned.  The  issuing  state  shall  return  items 
from  the  first  and  second  paragraphs  of  this 
Article  if  the  administering  state  or  a  third 
person is entitled to them 

The provision in the ZSKZDČEU is the same 
as it was in the ZENPP. 

The  situation  regulated  in  paragraph  5  of  the 
article  5  of  the  FD  is  implemented  in  the 
second  paragraph  of  the  article  37  of  the 
ZSKZDČEU, which determines that if transit 
across the territory of another Member State is 
the 
necessary 
extradition of a person from the third country, 
the  court  shall  send  to  the  ministry  the 
relevant  documents,  so  that  the  ministry  can 
request the permission for transit 

implement 

in  order 

to 

14  -  To  re-examine  the  transposition  of  the  Frame-
work Decision into national law as regards transit of 
non-Slovenians 
that  a 
statement  by  the  requested  person  that  he  wishes  to 
serve the sentence in the issuing Member State is not 
required (see 7.3.1.9). 

in  conviction  cases,  so 

15  -  To  re-examine  the  transposition  of  the  Frame-
work Decision into national law, so that transit cases 
from  third  States  to  another  Member  State  are 
expressly addressed by the implementing legislation, 
and  so  that  conditions  similar  to  those  of  transit 
within the European Union apply (see 7.3.1.9). 

General information  

EN 

166 

   EN 

 
 
 
General Council recommendations 2009 

Language flexibility 

Time limit for translated EAW 

Provisional arrest  

Proportionality test  

Yes,  English,  Slovene,  (article  15  of  the 
ZSKZDČEU)  -  additional  flexibility  arises 
also  from  the  before  mentioned  provision, 
which  gives 
the 
possibility  to  order  that  the  warrant  is  ex 
officio 
the  Slovenian  or 
into 
English  languages,  when  the  detention  has 
been imposed against the requested person.  

investigative 

translated 

judge 

the 

10 days (Decision is within the competence of 
the  judicial  authority  which  determines  an 
appropriate  time  limit  not  exceeding  ten 
days.) 

48 hours 

to 

rEgard 

the  question  of 

With 
the 
proportionality test, we assess that there is no 
need  to  include  the  explicit  provision  in  the 
implementing  law,  since  the  principle  is 
actually being tested in practice as proceeding 
from  the  Constitution  of  the  Republic  of 
Slovenia.  

to  be  ascertained 

The  condition  to  issue  a  European  arrest 
warrant  is  that  in  the  Republic  of  Slovenia  a 
decree  on  a  detention  order  has  been  issued, 
typically  due  to  the  reason  of  flight  risk, 
which  is  indicated  under  Point  1  of  the  first 
paragraph  of  Article  201  of  the  Criminal 
Procedure  Act  of  the  Republic  of  Slovenia. 
When  issuing  a  detention  order,  one  of  the 
circumstances 
the 
proportionality  of  the  measure  vis-avis  the 
violation  of  the  constitutionally  protected 
right to personal liberty. If a concrete criminal 
offence,  of  which  an  individual  is  suspected 
on  good  grounds,  is  either  by  its  content  or 
due  to  the  anticipated  sentence  of  small 
weight  (that  is,  regardless  of  the  statutory 
sentence),  a  detention  order  is  not  issued  for 
this  individual.  In  such  a  case,  a  European 
arrest  warrant  cannot  be  issued,  since  the 
supposition  for  issuing  such  a  arrest  warrant 
has not been substantiated. 

is 

in 

accordance  with 

However,  even  if  a  final  detention  order  is 
issued 
domestic 
legislation,  this  does  yet  not  mean  that  an 
European  arrest  warrant  will  be  issued,  since 
the  proportionality  of  such  a  measure  has  to 
be considered each time. 

EN 

167 

   EN 

 
Is  it  possible  for  a  sought  person  to  get  (state  paid) 
legal  assistance  provided  by  X  in  the  following 
situations: 

(1)  in  X  for  the  underlying  X  criminal  proceedings 
when  he  is  arrested  in  another  Member  State  on  the 
basis of a X EAW and 

(2)  in  another  Member  State,  for  the  underlying 
criminal proceedings when he is arrested in X on the 
basis of an EAW of the other state? 

(X = state in the head of the relevant column) 

in 

The  verification  of  proportionality  is  indeed 
not  written  expressly 
the  secondary 
legislation;  however,  it  proceeds  from  the 
Constitution  of  the  Republic  of  Slovenia  and 
is  part  of  the  criminal  proceedings  of  the 
Republic  of  Slovenia,  since  it  is  mandatory 
for  the  court  always  to  verify  proportionality 
between  the  weight  of  the  criminal  offence, 
the  validity  of  suspicion  and  the  reasons  for 
detention or arrest. In practice, this means that 
the  proportionality  verification  has  been 
performed  while 
the  decree  on 
issuing 
detention,  and  without  a  decree  on  detention, 
it  is  not  possible  to  issue  a  European  arrest 
warrant.  Verification  of 
the  principle  of 
proportionality when deciding on the issue of 
detention  orders  (and  on  their  subsequent 
prolongation)  and  other  measures  related  to 
the  violation  of  personal  liberty  is  generally 
accepted in case-law, also due to the decisions 
of the Constitutional Court of the Republic of 
Slovenia. 

a 

is 

defense  with 

1)Mandatory 
legal 
representative is stipulated in Article 70 of the 
Criminal Procedure Act; namely, if it involves 
cases  when  the  accused  person  is  mute,  deaf 
or  otherwise  incapable  to  defend  himself, 
initiated 
when  a  criminal  proceeding 
against  him/her  for  a  criminal  offence,  for 
which  a  prison  sentence  of  thirty  years  is 
prescribed  under  law,  or  if  he/she  is  brought 
to  an  investigating  judge  or  if  detention  is 
ordered  against  him/her.  In  these  cases  the 
president  of  the  court  shall  impose  a  legal 
representative  by  official  duty,  if  the  accused 
person  doesn't  take  one  on  his/her  own. 
Otherwise,  in  accordance  with  Article  71  of 
the  Criminal  Procedure  Act,  the  accused 
financial 
person,  who  by  his/her  own 
legal 
a 
cannot 
conditions 
representative, shall be at his/her own request 
or if in the interest of justice imposed a legal 
representative  by  official  duty.  The  costs  of 
the  legal  representative  shall  be  considered 
under  costs  of  a  criminal  proceeding.  In 
accordance  with  Article  95  of  the  Criminal 
Procedure Act, if the accused person has been 
found  guilty,  the  court  shall  order  that  the 
accused person must reimburse all costs of the 
criminal  proceeding;  however,  it  may  also 
exempt 
the 
reimbursement  of  all  costs  or  labour  costs,  if 
due  to  his/her  payment  the  support  of  the 

the  accused  person 

from 

pay 

for 

EN 

168 

   EN 

 
is  obliged 

accused  person  or  persons  that  the  accused 
to  support  would  be 
person 
endangered.  If  the  criminal  proceeding  is 
suspended  or  a  judgment  is  issued,  by  which 
the  accused  person  is  acquitted  from  the 
allegation, or if the allegation is rejected or a 
decision  is  issued,  by  which  the  allegation  is 
rejected, the court shall order that the costs are 
charged to the budget. 

2)According to article 16 of the ZSKZDČEU 
the  requested  person  must  have  a  counsel 
during the entire surrender procedure from the 
bringing to the investigating judge or from the 
first  hearing 
the 
surrender until the execution of the surrender. 
If  the  requested  person  does  not  take  a 
defence  counsel,  the  president  of  the  court 
shall appoint him ex officio 

involving  decision  on 

Accessory surrender 

No  

Flagging 

Judicial authorities 

Competent authority for Art 111 Schengen requests 

Competent  courts  as  well  as  the  Ministry  of 
the  Interior  -  Police-  International  Police  Co-
operation Division 

Seizure and handover of property 

in 

items 

the  seizure  of 

With regard to this it has to be mentioned that 
the provision of the Framework Decision that 
governs 
is  partly 
implemented  in  Article  24  of  ZSKZDČEU, 
and  partly  also 
the  existing  national 
regulations  –  Criminal  code.  In  accordance 
with  the  Slovenian  legislation,  items  from  a 
criminal  offence  must  be  seized  – 
this 
includes items that were used or intended for 
use  while  committing  a  criminal  offence,  or 
were  produced  with  a  criminal  offence,  as 
well  as  unlawful  pecuniary  advantage  and 
items  that  could  be  used  as  evidence  in  a 
criminal proceeding. 

Principle of direct contacts 

Yes, according to the first paragraph of the 14 
of  the  implementing  law  (  ZSKZDČEU)  the 
issuing and executing judicial authorities must 
communicate directly as a rule.  

Integration of recital 12 in implementation law 

Yes  

Dual criminality abolished for attempt and complicity  Yes  

4 months requirement  

EN 

169 

   EN 

 
 
Regime for transfer back 

The  person  would  be  automatically  returned, 
without any further formalities or consultations, 
however  Slovenia  has  not  had  any  practical 
case  yet  -  article  72  of  ZSKZDČEU  (if  the 
order  allowed  for  the  surrender  of  a  national 
of the Republic of Slovenia, or a national of a 
Member  State,  residing  in  the  territory of  the 
Republic  of  Slovenia,  or  an  alien  who  is  in 
possession of a permanent residence permit in 
the  Republic  of  Slovenia,  conditioned  by 
returning  the  person  to  the  Republic  of 
Slovenia  after  the  proceeding  is  concluded 
(point 3 of Article 11), the criminal judgment 
imposed  by  the  court  of  the  ordering  State 
shall be enforced in the Republic of Slovenia, 
even  if  the  offence  in  the  order  is  not  a 
the 
criminal  offence  under 
Republic  of  Slovenia  as  well  as  without  the 
consent of the person) 

law  of 

the 

24/7 rota? 

Yes 

In case of refusal of surrender for the execution of a 
sentence on the ground that the sought person has the 
nationality, or is a resident of the executing State, is 
execution  of  that  sentence  possible  in  the  executing 
state when there is no dual criminality? 

Yes,  if  the  national  court  receives  an  order 
against a national of the Republic of Slovenia 
or  of  another  Member  State  residing  in  the 
territory  of  the  Republic  of  Slovenia,  or  an 
alien  who  is  in  possession  of  a  permanent 
residence permit in the Republic of Slovenia, 
the  aim  of  executing  a  custodial 
with 
sentence, precautionary or other sanction that 
is carried out by detention order, and all other 
conditions are met for the surrender of such a 
person and the person has agreed to serve the 
sentence  in  the  Republic  of  Slovenia  and  the 
national  court  binds  itself  to  enforce  the 
judgement,  the  order  shall  be  treated  as  a 
request  for  the  execution  of  a  custodial 
sentence, precautionary or other sanction that 
is  carried  out  by  detention  order.  In  such  a 
case,  the  criminal  judgment  imposed  in  the 
issuing  State of  the order, would  be  enforced 
in the Republic of Slovenia also if the offence 
in the order is not a criminal offence under the 
law of the Republic of Slovenia 

Age of criminal liability  

14 years 

Statistics 

Website 

Yes, 2007, 2008: and 2009 

Jurisdiction ECJ 

Yes  

EN 

170 

   EN 

 
 
 
Case law/preliminary questions  

COM Implementation Report of 2007 

SI has not specifically transposed Article 26 FD 

The  provision  of  the  article  26  of  the  FD  is 
transposed  in  different  legal  instruments  -  new 
implementing law - 2 paragraph of the article 33 
of the ZSKZDČEU as well as in the provision of 
the Criminal Code:  

that  upon 

the  surrender  of 

2 paragraph of the article 33 of the ZSKZDČEU- 
determines 
the 
requested  person,  all  information  connected  with 
the duration and type of measures taken in order 
to  provide  the  presence  as  referred  to  in  Article 
23  of  this  Act  shall  be  submitted  to  the  issuing 
judicial authority 

Article  15  of  the  Criminal  Code  determines  that 
any  period  of  detention  and  confinement  during 
the  extradition  procedure,  or 
sentence  of 
imprisonment  served  under  the  judgment  of  a 
foreign court, if it becomes known at a later time, 
shall  be  credited  towards  the  sentence  imposed 
for  the  same  criminal  offence  by  the  domestic 
court.  If  sentences  are  of  different  types,  the 
domestic  court  shall  decide  on  the  appropriate 
method of deduction of the period served abroad. 
If  the  convicted  person  server  together  more 
sentences  than  they  were  imposed  on  him  in  the 
judgment  before  the  domestic  court,  the  surplus 
shall deem him wrongfully convicted 

Article 45 of the Criminal code - determines that 
time spent on remand shall be counted as a part of 
the sentence of imprisonment or shall be credited 
towards a fine. 

it is contrary to the Framework Decision 

requests 

that 
for  offences 
received  by  SI 
committed prior to 7 August 2002 will be treated 
under  previous  extradition  arrangements  (art  32 
FD) 

Article  32  of  the  FD  was  not  transposed  in  the 
new  law,  consequently  Slovenia  does  not  have 
any 
the 
commission of the criminal offence. 

limitation 

regarding 

time  of 

the 

EN 

171 

   EN 

 
 
 
25. SPAIN  

Recommendations EAW report 30-3-2007 

Follow up report 27-11-09 

(5085/2/07 REV 2 CRIMORG 5) 

New developments 

1 – That measures are put in place to ensure uniform 
compliance, by Spain’s issuing JAs, of their statutory 
duty  to  provide  the  CA  with  copies  of  all  EAWs 
issued and transmitted. (See 7.2.1.1). 

2  –  That  consideration  be  given  by  the  Spanish 
authorities to the preparation of a form of words/brief 
explanatory  memorandum  to  expressly  confirm,  for 
the  benefit  of  executing  MSs  (in  particular  common 
law  countries)  that  prosecution  decisions  have  de 
facto been reached in respect of all EAW prosecution 
requests, but that before such a decision can formally 
be  taken,  the  Spanish  Procedural  Code  requires  the 
hearing of the person. (See 7.2.1.3). 

Issuing  JAs  generally  do  send  copies  of 
EAWs issued and transmitted now. 

No  such  memorandum  has  been  done,  but 
permanent  contact  is  established  with  the 
executing MS to clarify this on a case by case 
basis. 

3  –  That  the  Spanish  authorities  reappraise  the 
current practice of causing all requested persons to be 
transported  to  Madrid  rather  than  directly  to  the 
locality of the issuing JA itself. (See 7.2.1.6). 

No  legislative  change  has  been  introduced  in 
this  regard  up  to  now.  Nevertheless,  Spain 
considers  this  issue  as  one  of  the  possible 
future changes of the implementing law. 

4 – To ensure that measures are put in place to ensure 
that  only  judicial  scrutiny  results  in  flagging  or  a 
request for further information being raised in respect 
of  EAWs  received  via  the  International  Police 
Cooperation Unit. (See 7.3.1.1). 

The  IPCU  requests  judicial  scrutiny  when 
flagging or further information is needed. 

5  –  To  examine  the  quality  of  linguistic  provision 
available to requested persons and their legal advisors 
before  the  executing  JA  and  to  take  such  remedial 
action as may be required. (See 7.3.1.2). 

Examining the quality of linguistic assistance 
is  difficult  because  the  other  language  is  not 
known  by  JAs-  however,  this  is  a  matter  of 
concern for all authorities involved. 

6  –  To  update  the  Fiche  Française,  ensuring  that 
the 
greater  clarity 
procedures  which  may  be  adopted  in  the  case  of 
EAWs concerning minors. (See 7.3.1.3) 

in  respect  of 

is  expressed 

The FF has not been updated. The practice in 
Spain so far is to surrender minors ageing 14-
18 to the issuing MS. 

General information  

General Council recommendations 2009 

Language flexibility 

EAWs via SIS will be translated by ES 

Time limit for translated EAW 

EN 

172 

   EN 

 
 
 
 
 
Provisional arrest  

Proportionality test  

Yes 72 hours  

Yes 

There is no provision for these sort of cases.  

Is  it  possible  for  a  sought  person  to  get  (state  paid) 
legal  assistance  provided  by  X  in  the  following 
situations: 

(1)  in  X  for  the  underlying  X  criminal  proceedings 
when  he  is  arrested  in  another  Member  State  on  the 
basis of a X EAW and 

(2)  in  another  Member  State,  for  the  underlying 
criminal proceedings when he is arrested in X on the 
basis of an EAW of the other state? 

(X = state in the head of the relevant column) 

Accessory surrender 

Yes  

Flagging 

Judicial authority 

Competent authority for Art 111 Schengen requests   National Agency for Data Protection. 

Courts of the Administrative Jurisdiction 

Seizure and handover of property 

Yes  

Principle of direct contacts 

MoJ central authority 

Integration of recital 12 in implementation law 

Dual criminality abolished for attempt and complicity  Yes  

4 months requirement 

Cf FD 

Regime for transfer back 

24/7 rota? 

In case of refusal of surrender for the execution of a 
sentence on the ground that the sought person has the 
nationality, or is a resident of the executing State, is 
execution  of  that  sentence  possible  in  the  executing 
state when there is no dual criminality? 

Age of criminal liability  

Statistics  

Website  

The  Art  5(3)  FD  guarantee  is  sufficient  basis 
for surrender and return of own nationals. 

No such case has arisen so far.  

18  yrs,  derogations  possible  in  serious  cases 
for 14-18 yr old  

Yes, 2007 and 2008 

www.prontuario.org  detailed  and  regularly 
international 
updated  practical  guide  on 

EN 

173 

   EN 

 
 
 
judicial assistance  

www.mjusticia.es  contains  a  chapter  on  the 
functioning of EAW 

Jurisdiction ECJ 

Yes 

Case law/preliminary questions: - 

COM Implementation Report of 2007: no remarks stem from the 2007 COM report.  

EN 

174 

   EN 

 
 
26. SWEDEN  

Recommendations EAW report 21-8-2008 

Follow up report 23-7-09 and 29-07-2010 

(9927/2/08 REV 2 CRIMORG 79) 

In  Sweden  no  new  national 
legislative 
measures  have  been  adopted  since  1  April 
2007 regarding the EAW.  

Therefore Sweden has no new information to 
provide in this regard. 

SE  has  provided  statistics  for  the  year  2007, 
2008 and 2009 

1  -  Institute  the  necessary  mechanisms  to  provide 
complete  and  reliable  statistics  on  European  Arrest 
Warrants issued, executed or rejected by the Swedish 
authorities (see 7.1.7 and see footnote 2 in page 28). 

2  -  Adopt  measures  to  ensure  that  appropriate 
training  programmes  are  put  in  place,  so  that 
extensive  and  regular  training  on  EAW  is  provided, 
mainly to judges and defence lawyers (see 7.1.8). 

3  -  Consider  taking  appropriate  measures  to  ensure 
that EAWs in conviction cases are issued either by a 
judicial  authority  or  under  the  supervision  of  a 
judicial  authority,  in  line  with  the  provisions  of  the 
Framework Decision (see 7.2.1.1). 

4  -  Produce  written  guidelines  to  assist  those  bodies 
and  institutions  entitled  to  request  the  issue  of  an 
EAW in conviction cases (see 7.2.1.2). 

5 - Consider amending the legislation so that there is 
no need to summon the person concerned to appear in 
court  when  the  detention  order  is  requested  with  a 
view to further issuing an EAW (see 7.2.1.3). 

6 - Amend the legislation so that the provisions of the 
Framework  Decision  on  temporary  surrender  are 
the 
made  effectively  applicable,  by  enabling 
competent  authorities  to  provide  guarantees  that  the 
requested  person  will  be  sent  back  to  the  executing 
State (see 7.2.1.4). 

7  -  Amend  the  implementing  legislation  in  order  to 
ensure  that  renunciation  of  the  entitlement  to  the 
speciality rule will be valid only if it is given before a 
judicial  authority  and  after  consultation  with  a  legal 
counsel (see 7.2.1.5). 

8  -  Take  the  necessary  steps  to  ensure  that  existing 
SIS  alerts  based  on  International  arrest  warrants  are 
replaced  with  SIS  alerts  based  on  EAWs  (see 

EN 

175 

   EN 

 
 
 
 
 
 
 
 
 
7.2.1.6). 

9  -  Reconsider  the  current  practice  of  adding 
restrictive  validity  flags  to  SIS-alerts  without  prior 
consultation of a judicial authority (see 7.3.1.1). 

the 

information  on 

10  -  Update 
the  national 
authorities competent to receive an EAW provided in 
the EAW Atlas and the Fiches Françaises, as well as 
in  the  notifications  to  the  General  Secretariat  of  the 
Council (see 7.3.1.2). 

Sweden  has  updated  the  Fiches  Françaises 
and the notifications to the General Secretariat 

11 - Amend the implementing legislation in order to 
ensure  that  consent  to  surrender  and  renunciation  of 
the  entitlement  to  the  speciality  rule  will  be  valid 
only  if  it  is  given  by  the  requested  person  before  a 
judicial  authority  and  after  consultation  with  a  legal 
counsel,  in  line  with  Article  13  of  the  Framework 
Decision (see 7.3.1.3). 

12  -  Clarify  the  deadline  for  the  prosecutor  to  refer 
the  case  to  the  court  for  a  decision  on  surrender,  in 
order  to  enable  the  latter  to  meet  the  required  time 
limits 
the 
Framework Decision (see 7.3.1.4). 

in  accordance  with  Article  17  of 

13 - Consider amending the implementing law so that 
the  statutory  time  limits  for  appeal  do  not  lead  to  a 
breach  of  the  time-limits  stipulated  in  Article  17  of 
the Framework Decision (see 7.3.1.6). 

14  -  Take  the  measures  considered  necessary  (e.g. 
through  an  addition  to  the  Prosecutors'  Manual)  to 
ensure that the provisions of the implementing law on 
competing  EAWs  are  fully  complied  with  (see 
7.3.1.8). 

General information  

General Council recommendations 2009 

Language flexibility 

English/Danish/Norwegian 

Time limit for translated EAW 

Provisional arrest  

Proportionality test  

Yes, max 72 hrs 

An  arrest  warrant  may  only  be  issued  if  it 
appears justified to do so in view of the nature 
and  seriousness  of  the  crime  and  the  circum-
stances  in  general,  and  when  the  harm  to  the 

EN 

176 

   EN 

 
 
 
 
 
 
 
 
 
 
individual and the delay and costs that can be 
expected  in  the  case  are  taken  into  account. 
Prosecutor's  manual 
comprises  detailed 
guidance  on  proportionality;  no  specific 
guidelines for EAWs in conviction cases. 

(1)  Yes  in  accordance  with  the  condition  in 
the Swedish Code on Judicial Procedure. As a 
main rule a state paid public defence counsel 
is  appointed  for  the  underlying  Swedish 
procedure  

(2) No  

Is  it  possible  for  a  sought  person  to  get  (state  paid) 
legal  assistance  provided  by  X  in  the  following 
situations: 

(1)  in  X  for  the  underlying  X  criminal  proceedings 
when  he  is  arrested  in  another  Member  State  on  the 
basis of a X EAW and 

(2)  in  another  Member  State,  for  the  underlying 
criminal proceedings when he is arrested in X on the 
basis of an EAW of the other state? 

(X = state in the head of the relevant column) 

Accessory surrender 

Yes (if dual criminality) 

Flagging 

International police cooperation unit 

Competent authority for Art 111 Schengen requests 

The Swedish National Police Board  

Seizure and handover of property 

Partly transposed 

Principle of direct contacts 

Yes, MoJ Central authority 

Integration of recital 12 in implementation law 

No  

Dual criminality abolished for attempt and complicity  Yes  

4 months requirement  

Cf FD 

Regime for transfer back 

Domestic provision 

24/7 rota? 

In case of refusal of surrender for the execution of a 
sentence on the ground that the sought person has the 
nationality, or is a resident of the executing State, is 
execution  of  that  sentence  possible  in  the  executing 
state when there is no dual criminality? 

Yes 

Age of criminal liability  

- 15 yrs 

- issuing a EAW for a person under the age of 
18  yrs  is  possible  if  it  concerns  serious 
criminality  or  if  the  person  has  a  strong 
connection  with  Sweden  or  if  there  is  a 
special reason 

Statistics 

Yes - 2007, 2008 AND 2009 

EN 

177 

   EN 

 
 
Website 

Jurisdiction ECJ 

Yes 

Case law/preliminary questions  

COM Implementation Report of 2007 

With reference to the implementation of Art 4(1) 
FD, SE has stated they will follow the Framework 
Decision in practice, however such statements do 
not  amount 
the 
Framework Decision. 

transposition  of 

to  correct 

EN 

178 

   EN 

 
 
 
 
 
 
27. UNITED KINGDOM  

Recommendations EAW report 7-12-2007 

Follow up report 13 October 2009 

(9974/2/07 REV 2 EXT 1 CRIMORG 96) 

New developments 

The  UK  has  not  implemented  any  legislative 
changes  into  its  domestic  legislation  since  1 
April  2007.  The  last  amendments  came  into 
effect on 15 January 2007. 

1 – That the statutory issues particularised in section 
7.3.1.2  of  this  report  (refusal  on  the  basis  of  ECHR 
issues and on grounds incompatible with the FD (Art 
4.4,  and  4.7.b)  be  addressed  in  the  light  of  ECJ 
interpretational 
the 
Pupino case) so that the UK position may be brought 
more closely into line with the FD. 

(in  particular 

jurisprudence 

2  -  That  the  authorities  of  the  UK  re-examine  the 
avenues of appeal available to requested persons and 
consider  how  best  domestic  processes  may  be 
streamlined to give effect to the surrender time limits 
set out in the FD (see 7.3.1.3). 

3  –  That  the  UK  prioritises  its  efforts  to  identify  an 
appropriate  test  case  in  which  the  necessity  of  the 
non-statutory  certification  process  may  be  examined 
(see 7.3.1.1). 

relied  upon 

4  -  That  the  UK  prioritises  its  efforts  to  identify 
appropriate  test  cases  in  which  guidance  can  be 
sought concerning the extent to which supplementary 
information  may  be 
remedy 
deficiencies  in  EAWs  received  by  the  UK  as  an 
executing  Member  State 
or, 
alternatively,  if  a  Warrant  does  not  contain  the 
statement  referred  to  in  Section  2  (2)  legislative 
changes  are  considered  to  remedy  the  situation 
regarding 
supplementary 
information. 

provision 

7.3.1.1) 

(see 

the 

of 

to 

5  -  That,  in  light  of  the  outcome  of  the  test  case(s) 
taken pursuant to recommendations 3 and 4, the UK 
authorities  consider  whether  there  is  a  need  to 
introduce  further  legislation  to  close  any  remaining 
lacunae (see 7.3.1.1). 

6  -  That  the  UK  examine  its  system  of  handling 
incoming  requests  via  the  Interpol  channels  for 
surrender  where  there  is  no  EAW  copy  and  no  UK 
link.  The  criteria  for  giving  a  follow  up  to  such  a 
request  should  not  be  based  on  a  UK  perception  of 
the  seriousness  of  the  offence  (see  7.3.1.5  and 

EN 

179 

   EN 

 
 
 
 
 
 
 
7.3.1.1). 

7  -  That  consideration  be  given  to  the  creation  of  a 
suitable  forum  whereby  the  various  JAs  of  the  UK 
can  undertake  an  exchange  of  views  and  best 
practices (see 7.3.1.1. and 7.3.2.1). 

8  –  That  immediate  measures  be  put  in  place  to 
facilitate  the  timely  and  adequate  provision  of  legal 
aid  to  persons  subject  to EAW  surrender  requests  in 
England and Wales (see 7.3.1.6). 

General information  

General Council recommendations 2009 

Language flexibility 

Time limit for translated EAW 

Provisional arrest  

Proportionality test  

No  

Yes  

Yes 

Is  it  possible  for  a  sought  person  to  get  (state  paid) 
legal  assistance  provided  by  X  in  the  following 
situations: 

(1)  in  X  for  the  underlying  X  criminal  proceedings 
when  he  is  arrested  in  another  Member  State  on  the 
basis of a X EAW and 

(2)  in  another  Member  State,  for  the  underlying 
criminal proceedings when he is arrested in X on the 
basis of an EAW of the other state? 

(X = state in the head of the relevant column) 

Accessory surrender 

Flagging 

Not applicable  

Competent authority for Art. 111 Schengen requests  Not applicable  

Seizure and handover of property 

Separate mla request 

Principle of direct contacts 

Via central bodies  

Integration of recital 12 in implementation law 

Dual criminality abolished for attempt and complicity  Yes  

4 months requirement  

Cf FD 

EN 

180 

   EN 

 
 
 
 
 
 
 
 
 
Regime for transfer back 

Domestic legislation based on EAW FD 

24/7 rota? 

In case of refusal of surrender for the execution of a 
sentence on the ground that the sought person has the 
nationality, or is a resident of the executing State, is 
execution  of  that  sentence  possible  in  the  executing 
state when there is no dual criminality? 

Age of criminal liability  

10  (England,  Wales  and  Northern  Ireland),  8 
(Scotland) 

Statistics  

Website 

2007: yes 

Monthly  updated 
prosecutors 

intranet  guidebook  for 

Jurisdiction ECJ 

No 

Case law/preliminary questions:- 

COM Implementation Report of 2007 

In  relation  to  Article  1(1),  however,  it  is  noted 
that  the  UK  refuses  to  surrender  the  requested 
person unless the investigations have been closed. 
Moreover  the  UK  will  rarely  use  provisional 
arrest  in  the  process  of  executing  an  EAW,  and 
therefore will not arrest the requested person until 
the certification has been granted. This appears to 
the Commission as contrary to the definition and 
the  scope  of  the  EAW  as  defined  in  Article  1(1) 
of the Framework Decision, and in practice leads 
to serious difficulties. 

In the UK the transposing legislation applies only 
to  the  Member  States  which  have  been  listed  by 
Decree  or  Order.  The  Commission  has  not  fully 
been informed of these lists, although it should be 
notified  of  any  relevant  transposing  measure 
including secondary national legislation 

For reasons of national security, the Secretary of 
State in the UK may overrule the decision of the 
judge  or  direct  the  judge  if  he  believes  that  the 
requested person was acting in the interests of the 
UK by carrying out actions conferred or imposed 
by  or  under  an  enactment,  or  is  not  liable  as  a 
result  of  an  authorisation  given  by  the  Secretary 
of  State  for  his  action.  This  is  contrary  to  the 
this  ground  for 
Framework  Decision,  since 

EN 

181 

   EN 

 
 
 
 
 
 
 
 
refusal is not envisaged and moreover it transfers 
the  decision  making  power  from  the  executing 
judicial authority to the Executive. 

UK has introduced additional grounds for refusal 
based  on  the  passage  of  time  and  extraneous 
considerations,  which  may  go  beyond 
the 
Framework  Decision.  Such  grounds  for  refusal 
may be established on a relatively low standard of 
proof  and  once  raised,  compel  the  judge  to  look 
into the substance of the underlying case and the 
conduct of the issuing Member State. 

UK has introduced additional grounds for refusal 
arising  from 
the  application  of  Treaties  or 
Conventions which have not been set aside by the 
Framework Decision.  

The  UK  has  also  specified  that  surrender  to  a 
Member State is barred by special hostage taking 
considerations  in  specific  situations  where  the 
International  Convention  against  the  Taking  of 
Hostages  of  18  December  1979  applies.  This  is 
contrary  to  the  Framework  Decision  as  this 
instrument  regulates  relations  between  Member 
States  in  surrender  procedures  and  as  such  the 
Framework  Decision  has  replaced  a  number  of 
other  instruments  which  cannot  be  used  in  order 
to  add  grounds  for  refusal  in  dealing  with 
instruments 
Member  States.  However, 
remain unaffected when Member States deal with 
third countries. 

those 

in 

Article 5(1) guarantee. Of these only UK imposes 
additional  conditions,  not  envisaged 
the 
Framework Decision, in relation to the conduct of 
the hearing, such as the right to defend oneself in 
person  or  through  legal  assistance  of  one’s  own 
choosing  or  where  appropriate  to  be  given  free 
legal  assistance  and  to obtain  the  examination of 
witnesses  on  one’s  behalf  under 
the  same 
conditions as witnesses against oneself. 

Article  8  –  Content  and  form  of  the  European 
arrest warrant 

The UK has not included in its legislation all the 
information in Article 8(1) nor indicated whether 
it uses the correct form. It has done so because a 
non  EU  Member  State  may  be  designated  under 
Part  One  of  the  Act  provided  that  it  does  not 
operate the death penalty and is a Schengen State. 
The UK has, nevertheless, stated that in practice it 
uses  the  form  in  the  annex  to  the  Framework 
the 
Decision.  This  again  does  not  satisfy 

EN 

182 

   EN 

 
 
 
 
 
requirement  of  legal  certainty.  UK’s  legislation 
may  give  rise  to  difficulties,  as  it  appears  to  be 
somewhat confusing.  

Also problematic, the UK form must indicate that 
in  his 
the  requested  person  was  convicted 
presence  or  give  evidence  that  the  individual 
“deliberately  absented  himself  from  his  trial” 
whereas  the  form  annexed  to  the  Framework 
decision  simply  states  that  the  requested  person 
shall be present unless indicated otherwise. 

UK  has  added  a  stage  for  the  execution  of  a 
EAW,  which  is  not  required  by  the  Framework 
Decision  and  according  to  how  it  is  dealt  with 
may be contrary to the Framework Decision. UK 
has  imposed  a  certification  or  pre-endorsement 
stage for a EAW to be valid. This supplementary 
formality  is  to  be  complied  with  by  the  central 
authority,  which,  in  practice  often  acts  as  an 
executive authority. 

The judgment of the House of Lords in Dabas v. 
HCJ  Madrid  (2007)  UKHL  06,  has  however 
reduced  the  importance  of  the  certification  stage 
in  the  UK,  finding  that  the  EAW  in  itself  could 
constitute a certificate. 

UK seem to send back an incomplete form and to 
require almost systematically that a new EAW is 
issued which cause great difficulties to some MS 
which  cannot  reissue  EAW  and  cause  delays  in 
any event. 

UK  does  not  allow  a  EAW  to  be  transmitted 
directly where the location of the person is known 

In UK, requests for further information before the 
surrender  decision  comprise  details  concerning 
the  statutory  requirement  that  the  requested 
person  in  any  conviction  case  is  declared  to  be 
"unlawfully  at  large"  i.e.  the  person  has  been 
convicted  and  is  liable  to  immediate  arrest  and 
detention.  However  the  Commission  has  been 
informed  that  such  a  requirement  should  be 
abolished  pursuant  to  the  adoption  of  the  Police 
and  Justice  Act,  which  entered  into  force  on  1st 
January 2007. 

UK  no  deadline  is  provided  for  making  the 
decision  following  the  highest  appeal  (House  of 
Lords).  Thus  both  the  60  and  90  day  deadlines 
could  in  principle  be  exceeded.  Times  limits  are 
far  from  being  respected  by  the  UK,  as  they  are 
not  transposed  in  the  Extradition  Act  2003  and 

EN 

183 

   EN 

 
 
 
 
 
 
are  often  delayed  by  appeal  procedures.  No  60 
day  time  limit  is  imposed  for  surrender  after  the 
arrest of the requested person. The only time limit 
which is mentioned in the Extradition Act 2003 is 
the 10 day limit after the final decision of Article 
17(2).  A  first  instance  appeal  must  be  lodged 
within  7  days  of  the  surrender  decision  with  the 
hearing  taking  place  within  40  days  of  the  arrest 
of  the  requested  person.  A  second  appeal  to  the 
House  of  Lords  or  to  the  Privy  Council  is  then 
possible,  provided  the  requested  person  obtains 
leave  to  do  so.  The  leave  application  may  be 
made to the Appeal Court within 14 days after the 
1st  decision  or  if  it  is  refused  directly  to  the 
House of Lords within 28 days of that refusal. If 
the leave is granted (and there is no statutory limit 
set  for  the  granting  of  leave),  the  appeal  shall 
commence within 28 days of the grant for leave. 
No  statutory  limit  is  set  neither  for  the  hearing 
nor for the decision. As a result of this procedure, 
the  UK's  average  time  for  a  surrender  procedure 
to  be  completed  is  28  days  when  the  requested 
person  has  agreed  to  the  surrender  and  65  days 
when the requested person does not consent to the 
surrender and appears to be exceeding the delays 
set by the Framework Decision. 

UK  has  in  transposing  Article  23(4)  allowed  for 
discharge  of  the  person  as  an  alternative  to 
postponement. The grounds for discharge (where 
it would be "unjust or oppressive" to extradite the 
person) are vague to contrast with the Framework 
Decision.  The  postponement  of  the  surrender  for 
humanitarian  reasons  is  not  specifically  foreseen 
as  it  is  for  the  hearing  according  to  their 
legislation. 

EN 

184 

   EN 

 
 
 
PART IX - STATISTICAL CHARTS IN RELATION TO THE EUROPEAN ARREST 
WARRANT 

EN 

185 

   EN 

 
BE

CZ

500

400

300

200

100

0

issued

executed

2005

2007

2009

2005 2006 2007 2008 2009

DK

DE

2005 2006 2007 2008 2009

EE

issued

executed

issued

executed

2500

2000

1500

1000

500

0

120

100

80

60

40

20

0

2005 2006 2007 2008 2009

EL

2005 2006 2007 2008 2009

2005 2006 2007 2008 2009

ES

FR

issued

executed

2000

1500

1000

500

0

2005 2006 2007 2008 2009

2005 2006 2007 2008 2009

600
500
400
300
200
100
0

100

80

60

40

20

0

50

40

30

20

10

0

700
600
500
400
300
200
100
0

issued

executed

issued

executed

issued

executed

issued

executed

EN 

186 

   EN 

 
IE

IT

2005 2006 2007 2008 2009

CY

50

40

30

20

10

0

50

40

30

20

10

0

issued

executed

issued

executed

140
120
100
80
60
40
20
0

200

150

100

50

0

2005 2006 2007 2008 2009

LV

2005 2006 2007 2008 2009

2005 2006 2007 2008 2009

LT

LU

600

500

400

300

200

100

0

1200

1000

800

600

400

200

0

issued

executed

50

40

30

20

10

0

2005 2006 2007 2008 2009

2005 2006 2007 2008 2009

HU

MT

issued

executed

7
6
5
4
3
2
1
0

2005 2006 2007 2008 2009

2005 2006 2007 2008 2009

issued

executed

issued

executed

issued

executed

issued

executed

EN 

187 

   EN 

 
NL

AT

issued

executed

1000

800

600

400

200

0

2005 2006 2007 2008 2009

2005 2006 2007 2008 2009

PL

PT

2005 2006 2007 2008 2009

RO

issued

executed

issued

executed

200

150

100

50

0

100

80

60

40

20

0

2005 2006 2007 2008 2009

SI

2005 2006 2007 2008 2009

2005 2006 2007 2008 2009

600

500

400

300

200

100

0

5000

4000

3000

2000

1000

0

2000

1500

1000

500

0

issued

executed

issued

executed

issued

executed

EN 

188 

   EN 

 
SK

FI

2005 2006 2007 2008 2009

SE

500

400

300

200

100

0

300

250

200

150

100

50

0

issued

executed

issued

executed

140
120
100
80
60
40
20
0

250

200

150

100

50

0

2005 2006 2007 2008 2009

UK

issued

executed

issued

executed

2005 2006 2007 2008 2009

2005 2006 2007 2008 2009

EN 

189 

   EN