Luxemburg, 13/09/2006 (Agence Europe) - In his conclusions on the Advocaten voor de Wereld case, Advocate General Ruiz-Jarabo takes the view that the European arrest warrant does not breach the fundamental rights of equality before the law and legality in criminal proceedings. “The European arrest warrant and extradition belong to different value systems,” he says in a press release.
The case was referred to the European Court of Justice by the Belgian Cour d'arbitrage/Arbitragehof, after a Belgian association , Advocaten voor de Wereld, brought an action before it contesting the Belgian law transposing the 2002 Framework Decision on the European arrest warrant and the surrender procedures between Member States into national law. The Belgian court asked the European Court to rule as to whether “the prohibition, in certain circumstances, on making the execution of the European arrest warrant subject to the condition that the facts on which it is based must also constitute an offence in the State of execution breaches the fundamental rights to equality before the law and to the legality of criminal proceedings”. The Belgian court also asked the European Court of Justice to give an opinion on the appropriateness of the legal instrument, that is to say a framework decision, used. In his press release, the Advocate General says that, given the differences between the European arrest warrant and extradition, “the only alternative to a framework decision would be an international convention”. However, he points out that the Treaty of Amsterdam made provision for the framework decision as a new legal instrument intended to circumvent the difficulties arising from the ratification of international treaties. In its proposal for a framework decision, the European Commission stated that this instrument was chosen for reasons of effectiveness in view of the limited success of the previous conventions, he emphasises.
Mr Ruiz-Jarabo concludes that the Member States and the Institutions have to achieve the objectives laid down by the Treaty of the European Union, which include the maintenance and development of an area of freedom, security and justice. To achieve these objectives, they must use the most appropriate measures to ensure the effectiveness of Community law. For this reason, the Council was not only entitled, but, indeed, obliged to establish a mechanism of the European arrest warrant in a framework decision. As for the principle of equality before the law, which, according to the Belgian lawyers, has been infringed, the Advocate General says that “the introduction of a different regime on the basis of the nature of the facts does not breach the principle, since it does not take account of a personal situation but of the nature of the offence”. Similarly, the differences which may arise from the execution of a European arrest warrant are objective, since they correspond to the nature of the offence and the penalty for it; reasonable and justified, because they are aimed at combating crime in an area of freedom, security and justice; and proportionate, since they ensure the surrender by a Member State of a person accused or convicted of a serious offence to the authorities of a judicial system which respects the principles of the rule of law and guarantees the fundamental rights of the individual concerned, including the rights which apply during the course of criminal proceedings.
In the view of the Advocate General, that the principle of equality in the application of the law is not breached when different courts hand down conflicting judgments. The framework decision itself provides for the accurate exchange of information and direct contact between the courts involved. The fear that conflicting decisions by different courts threatens the right to equality in the application of the law is, therefore, unfounded. Indeed, should any uncertainty remain, the procedure for referring a preliminary ruling facilitates a uniform interpretation within the territory of the Union. Observance of the principle of legality in criminal proceedings, Mr Ruiz-Jarabo points out, “must be required of the legislature of the State issuing the European arrest warrant and its courts for the purposes of commencing criminal proceedings and resolving them, where appropriate with a sentence. A European arrest warrant which is correctly issued must be based on acts which are defined as offences in the issuing State”. He concludes that “the arrest and surrender procedure entailed in the execution of a European arrest warrant is not punitive in nature. The court responsible for executing the warrant must establish that the conditions for handing over an individual who is in its jurisdiction to the issuing court have been satisfied, but the executing court is not required to hear the substance of the case, except for the purposes of the surrender proceedings, and must refrain from assessing the evidence and delivering a judgment as to guilt”.
The Advocate General's opinion is not binding on the Court, which will give its judgment at a later date.