Onward Transfer under the European Arrest Warrant: Is the EU Moving towards the Free Movement of Prisoners?

Published date01 March 2013
AuthorSamuli Miettinen
DOI10.1177/203228441300400107
Date01 March 2013
Subject MatterArticle
New Journal of Eu ropean Crimina l Law, Vol.4, Issue 1–2, 2013 99
ONWARD TRANSFER UNDER THE
EUROPEANARREST WARRANT: IS THE
EUMOVINGTOWARDS THE FREE
MOVEMENTOF PRISONERS?
S M*
ABSTRACT
Neither the European Arrest Warrant Framework Decision (EAW FD) nor its
predecessors provide clear rules on which authorities retain control over the onward
transfer of surrendered su spects. In the West judgment, the Court of Justice resolved this
question by limiting the originating state’s powers of control in successive surrender
proceedings.  is article e xamines onward transfer rules in the EAW FD and preceding
European instruments. It considers the ruling in West and its implications for the EU
system of surrender. A new right not to be transferred appears to be emerging as a
general principle of EU law. If accepted as a general principle, the right not to be
transferred will provide ge nuine added value beyond existing human rights in struments
and defence rights legi slation.
Keywords: EAW; extradition; fundamenta l rights; judicial cooperation; surrender
1. INTRODUCTION
International cooperation in criminal matters is rarely unconditional. One typical
condition imposed by cooperating st ates is that the process must serve only those end s
that are described i n a request for cooperation.  is basic idea is found in international
instruments on extradition.  ese enable the transfer of fugitives but o en prohibit
* LL.D. candid ate, Faculty of Law, University of Helsin ki.  e surrender of We st was connec ted to
crimes agai nst the interests of t he University, to which the aut hor has no further c onnection beyond
this researc h.  anks to Dominik Brodowski and participants of seminars at Helsinki and LMU,
Munich, for their i nsightful comments on e arlier dra s.
Samuli Miettinen
100 Intersentia
requesting states from prosecuting o ences that are not speci ed in the request.
International instr uments also seek to restrict t he possibility that an ex tradited person
might be direct ly transferred onwards to a third state.  us, ex tradition takes place on
individualised terms agreed between the requesting and requested state. In the
European Union, similar limits apply to both intra-Union ‘surrender’ and relations
between third state s.  e European Arrest Warrant Fra mework Decision (EAW FD)1
governs these particular questions on the basis of provisions adapted from bilateral
conventions.  is practice raises unforeseen issues of interpretation in the multilateral
relations that typica lly arise withi n the EU. In principle, under the bilateral model the
requested state retains some control over subsequent prosecutions and onward
extradition. However, when EAW FD provisions refer to a single executing state, it is
unclear which executing state retains control in a chain of multiple, consecutive
transfers.  is highlights a recur ring issue in EU mutual recogn ition instruments:  e
Union has not avoided clear policy decisions when allocating control over criminal
matters. In the West judg ment,2 the Court of Justice opted for a dereg ulatory approach:
only the most recent states in a cha in of surrenders retain control over future t ransfers.
Although the judg ment resolves the question as regards control over onward surrender,
the Court’s reasoning i n West may also have implications on extradition between the
EU and third states.  e Court’s judgment may encourage Member States to raise
further concer ns similar to fundamental r ights and proportionality objections which
have thus far cast a shadow over the implementation and applicat ion of the EAW FD.
One solution seems imminent: rights not to be transferred onward may be emerging
as fundamenta l rights.
2. OVERVIEW OF SPECIALITY AND ONWARD
TRANSFER RULES
EAW FD rules limiting prosecution a nd onward surrender must be considered in their
broader context. Extradit ion treaties o en prov ide that s uspects m ay only be de tained
and prosecuted for those o ences which have been speci ed in the request for
extradition.3 A er proceedings for a speci c o ence, the person is ordinarily p ermitted
to leave the requesting Member State w ithout further prosecution.  e exac t scope of
what can be prosecuted ca n sometimes be debatable: new charges might be po ssible for
the same acts, or the same charges might be prosecuted but on the basis of acts
1 2002/584/JHA, Cou ncil Framework Decision of 13June 2 002 on the European ar rest warrant and
the surrender procedures between Member States – Statements made by cer tain Member States on
the adoption of the Fra mework Decision, OJ 2002 L190, p.1.
2 Case C-192/12 PPU Melvin West Judgment of 28June 2012, not yet publishe d (West).
3 Stanbrook and Stanbrook obs erve that the ru le is included in every e xtradition Treaty conc luded by
the UK. C. St anbrook and I. Stanbrook, Ext radition Law and Prac tice 2nd ed. (Oxford University
Press, Oxford , 2000) p.47.

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