In 2005, courts in three Member States of the European Union (Cyprus, Germany and Poland) declared void their respective national measures implementing the Council Framework Decision on the European Arrest Warrant. The Decision facilitating the extradition procedures proved to be controversial and provoked debate. Christina Eckes analyses extraditing practices in Europe and the Framework Decisions broader implications for European Union law.
Ms. Eckes writes: On 13 June 2002, the Council of the European Union (EU) adopted the Framework Decision 2002/584/JHA of 13 June 2002 on the European Arrest Warrant (EAW Decision) (OJ 2002, L 190/1). Having as an objective the facilitation of extradition procedures it introduces a considerable reduction of political discretion on the part of the Member States. However, the instrument does not create a new European arrest warrant as the basis for extradition. Extradition continues to take place on the basis of arrest warrants issued by the competent national authorities. The instrument was hailed by the Commission as one of the successes of the EU anti-terrorism policy, while academic voices were predominantly critical.
The national implementation of the EAW Decision was challenged in courts in Czech Republic, Cyprus, Germany and Poland. After the first injunction against surrendering a German national to Spain was granted, the German Constitutional Court declared the German European Arrest Warrant Act 2004 void on the grounds that it violated the principle of proportionality, and Article 2(1) in conjunction with Articles 20(3), 16(2), and 19(4) of the German Constitution (Grundgesetz). Essentially, the Court found fault with two points: (1) that the exercise of discretion leading to the approval (or disapproval) of extradition in the individual case was not subject to judicial review; and (2) that the extradition of German nationals was not subject to further conditions (such as the examination in each case of the link to the national legal order and the observance of the rule of law principles).
Similarly, the Polish Constitutional Tribunal and the Supreme Court of Cyprus ruled that the respective national instruments implementing the EAW Decision were unconstitutional for breaching the prohibition to extradite nationals. The Czech Constitutional Court, by contrast, confirmed the validity of the implementation of the EAW Decision in the Czech Republic. [footnotes omitted]