The European arrest warrant and the rights of the suspect and of the defendant in EU member states

Abstract

Secondary mutual assistance1 in criminal matters and especially extradition is an extremely important tool in the fight against trans-border crime and in bringing perpetrators to Justice. The FDEAW, seen by many practitioners as a solution ahead of its time is the most significant development since the European Extradition Convention of 1957 and its protocols of 1975 and 1978 of which the FDEA W retains some concepts. The FDEA W considers some reservations, which EU States made to the aforementioned Convention. It brings in new rules and restricts the application of traditional principles. It specifically entitles the requested person to bail provided surrender is not prejudiced. Politics have receded from extradition. A judicial authority is generally at the centre of the system. Rule of law advances in this area too. The FDEA W does not impose a fair trial in extradition proceedings. The right to legal assistance depends on the Member States. The requested person is thus left in a position similar to that under the formal extradition procedure as regards his rights. The entry in force of the Treaty on A Constitution for Europe can change this position. The entrenched CFREU would require that article 6 ECHR safeguards and standards be provided in EU law derived proceedings. The laws implementing the FDEA W differ significantly both in detail and in safeguards. The UK Extradition Act 2003 is a comprehensive set of rules, which covers most areas connected to the execution of an EA W. On the other hand, the Maltese 2004 Order is silent on some important aspects without referring to the general rules under the Criminal Code or the COCP. The Order provides that other laws are inapplicable unless it provides otherwise. Therefore, the Maltese judicial authority may still be faced with procedural problems that would have to be determined prior to a decision on surrender. This could prejudice the expeditious nature of EA W proceedings.