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In 2005, Osman Hussain, who tried to blow up the London Underground on 21st July that year, was extradited from Italy using the European Arrest Warrant.

This is held up as an example of the utility of the EAW. But is it true that a terrorist like Osman could not be extradited from Italy to the UK without the EAW, particularly in light of the existence of Interpol?

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    This question could have a good home at law.stackexchange.com – 8protons Oct 31 '18 at 20:09
  • Big picture: it's part of the gradual process of transforming Europe from democracy to aristocracy. – Graham Laight Nov 1 '18 at 13:32
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It could, but you would need to initiate an extradition process. Extradition processes depend on bilateral treaties (if you don't have one with the country the criminal is in, you can't get him/her extradited) and generally are a long, twisted, problematic burocratic nightmare.

The EAW was created to ease that processes. Essentially it assumes that all the judiciary systems among EU members are fair, and thus detainees are going to have a fair trial anywhere so, for some types of crimes which exist in all of the countries, such arson, rape, murder, kidnapping or trafficking, no dual-criminality checks or other judicial burdens are made on the detainees, greatly speeding their surrendering to the requiring state.

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    Have discrepancies between judicial systems proven problematic in practice? – Ben Oct 31 '18 at 13:24
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    Yes. Even with the EAW there have been problems. Spain tried to have Catalan president Carles Puigdemont extradited from Germany. The crimes levelled against him, however, are not (all) in the EAW list, so the german judge took several weeks to investigate the case, then denied the extradition for "rebellion". Which, in practice means that 8 catalan politicians are going to stand trial this next spring while 9 are free from prosecution. Switzerland tried to get Falciani extradited from Spain, who refused. At best, extradition is longer and messier than EAW. At worst, it may be refused. – Rekesoft Oct 31 '18 at 13:55
  • So a EAW member state may exercise discretion (per the German/Spain example) as to whether to permit the extradition? For example, if an action is not viewed as a crime in the accused’s location (eg. Blasphemy), can that person be extracted forcefully over and above local laws? – Ben Oct 31 '18 at 14:00
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    Nope. I'll edit my answer to clarify. – Rekesoft Oct 31 '18 at 15:12
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    @Ben the member state has less discretion than before. The EAW is basically a presumption of equivalence of the level of individual rights protection under different national judicial systems. With the EAW, non-extradition becomes the exception that needs to be justified by pointing to non-equivalence. – henning Nov 1 '18 at 8:53
13

The common process of extradition, even between allied states, is lengthy and costly. The European Commission regularly makes factsheets for this and other subjects (PDF):

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The European Justice portal also has a lot of information about this subject including statistics about its use:

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The previous average of extradition time of 1 year dropped to 48 days:

How much faster are extradition proceedings now?

Before the EAW was introduced extradition used to take an average of one year, but now that has been cut to an average of 48 days, the European Commission says. A suspect must be handed over within a maximum of 90 days after arrest. In cases where a suspect agrees to surrender the average extradition time is 16 days.

Streamlining the process made extradition easier with fewer costs. In fact some controversy has risen due to the misuse of the EAW. Some examples are:

It results from the evaluation visits that EAWs have been issued in cases such as the following:

  • detention of 0.45 grams of cannabis;
  • detention of 1.5 grams of marijuana;
  • detention of 0.15 grams of heroin;
  • detention of 3 ecstasy tablets;
  • theft of two car tyres;
  • driving a car under the influence of alcohol, where the limit was not significantly exceeded (0.81 mg/l)
  • theft of a piglet

Calling an EAW for trivial cases is something actively being discouraged by the European Commission.

  • Thank you. I have heard that the EAW somehow imperils habeas corpus, Is that because it enables extradition into jurisdictions where imprisonment for extended periods while awaiting trial is possible? – Ben Oct 31 '18 at 14:08
  • @Ben I'm not aware of any impediment to Habeas Corpus, including for non-EU citizens. As far as I know you are always entitled to legal representation (in the surrendering country) and the EAW itself must follow ECHR (yet another connection to one of your questions). – armatita Oct 31 '18 at 14:15
  • Thank you. Can the extraditee state request evidence for the crime being accused to ensure the arrest meets local laws (for example for the crime of blasphemy)? And can the extraditee state exercise discretion when responding to a request? ie choose to reject it – Ben Oct 31 '18 at 15:00
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    @roy those are not rules but actual examples of the misuse of the EAW. They are listed separately because those are two different prosecutions. – armatita Oct 31 '18 at 17:56
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    Theft of a piglet? – Strawberry Nov 1 '18 at 12:01
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From the UK point of view, it mostly helps in deporting foreign criminals. From the House of Commons Library briefing paper on the EAW:

ACPO told us that the UK also benefits from the EAW because it is an attractive destination for criminals. In London, 28 per cent of people arrested are foreign nationals of which half are from the EU. The vast majority of UK surrenders to other EU countries under the EAW are non-UK citizens — 95 per cent of over 4,000 extraditions in the four years to April 2013. In other words, most outward EAWs concern other Member States seeking their own citizens for crimes committed back home. This is not quite the case for extraditions to the UK, where just over half of the 507 people surrendered were British nationals.

In relation to brexit and EU-UK cooperation on preventing crime, the BBC wrote the following:

In response, the Department for Exiting the European Union said protecting the public was an "absolute priority".

"Any drop in the breadth and quality of co-operation would have a direct impact on public safety and on our collective ability to deliver justice across Europe," a spokesman said.

Earlier this year the chief constable of the Police Service of Northern Ireland said non-participation in the scheme was "probably the biggest practical vulnerability" facing law enforcement in Northern Ireland post-Brexit.

George Hamilton told a House of Lords committee there would be "very real operational consequences if there are no alternative arrangements in place around exchange of material and people by way of a European arrest warrant".

This shows that the EAW is seen as a vital tool in policing by the UK government and high-ranking police officers (mr. Hamilton is the Chief Constable of the Police Service of Northern Ireland).

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