The European arrest warrant and in absentia judgments: The cause of much trouble
| Author | André Klip,Vincent Glerum,Kei Hannah Brodersen |
| Published date | 01 March 2022 |
| DOI | 10.1177/20322844221082488 |
| Date | 01 March 2022 |
| Subject Matter | Articles |
Article
New Journal of European Criminal Law
2022, Vol. 13(1) 7–27
© The Author(s) 2022
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DOI: 10.1177/20322844221082488
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The European arrest warrant
and in absentia judgments: The
cause of much trouble
Kei Hannah Brodersen
Maastricht University, Maastricht, Limburg, Netherlands
Vincent Glerum
District Court of Amsterdam and University of Groningen, Amsterdam, Noord-Holland, Netherlands
Andr´
e Klip
Maastricht University, Maastricht, Limburg, Netherlands
Abstract
The ground for optionalrefusal of Article 4a FD 2002/584/JHA wasintended to strengthen the rights
of defendants and make the execution of European Arrest Warrants after in absentia convictions
easier. In practice, however, problems at the level of the EU legislator, at the level of national
legislators and at the level of judicial authorities seem to stand in the way of achieving those goals. A
common thread of the problems with applying Article4a is a lack of awareness of the case-law of the
European Courtof Justice. Based on case studiesfrom six EU Member States, this articlemakes an in-
depth analysis of these problems and suggests concrete measures on how to overcome them.
Keywords
In absentia proceedings, European arrest warrant, mutual recognition, mutual trust, AFSJ
European arrest warrants and in absentia judgments
Since 28 March2009, Framework Decision 2002/584/JHAon the European arrest warrant
1
(FD 2002/
584/JHA) containsa ground for refusal relating to the execution of decisions renderedin absentia.On
that day, Framework Decision 2009/299/JHA on in absentia decisions
2
(FD 2009/299/JHA) entered
Corresponding author:
Kei Hannah Brodersen, Universit´
e de Neuchˆ
atel, Neuchˆ
atel, Switzerland.
Email: hannah.brodersen@unine.ch
1. Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender
procedures between Member States [2002], OJ L 190, p 1.
2. Council Framework Decision 2009/299/JHA of 26 February 2009 amending Framework Decisions 2002/584/JHA, 2005/
214/JHA, 2006/783/JHA, 2008/909/JHA and 2008/947/JHA, thereby enhancing the procedural rights of persons and
fostering the application of the principle of mutual recognition to decisions rendered in the absence of the person
concerned at the trial [2009], OJ L 81, p 24.
into force whichdeleted Article 5(1) FD 2002/584/JHA.This provision allowed making the execution
of a European arrest warrant (EAW) dependent on a guarantee by the issuing judicial authority
concerning the opportunity of applying for a retrial if that EAW was issued for the purposes of
enforcing an in absentia conviction. In its stead, Article 4a was introduced. This provision contains
a ground for optionalrefusal by the executing judicialauthority if the requested person ‘did notappear
in personat the trial resulting in the decision’andnone of the exceptions listedin the provision applies.
It was deemed necessary to replace the regime of formerArticle 5(1), b ecause it left the determination
of the adequacy of the guarantee provided by the issuing judicial authority up to the executing judicial
authority, for whom it was often ‘difficultto know exactly when execution may be refused’.
3
The use of
the ambiguous term ‘in absentia’–anon-defined technical term whose meaning varies from Member
State to Member State
4
–and differences among the Member States in the protection of fundamental
rights
5
(see Incorrect Transposition of the Exceptions) contributed to that difficulty.
However, Article 4a brought its own challenges, as a statistical analysis of the cases dealt with by
the District Court of Amsterdam, the Dutch executing judicial authority, illustrates. In 2017, for
example, this court rendered a decision, namely, 179 execution-EAWs. Article 4a(1) was applicable
to 121 execution-EAWs (67.5% of the execution-EAWs). In 92 of those 121 cases (76%), sup-
plementary information was requested pursuant to Article 15(2) FD 2002/584/JHA.
6
In 81.5% of
those 92 cases the time limit of 60 days
7
was exceeded and in roughly 15% the time limit of 90 days
8
was exceeded. In 41 of the total of 121 cases in which Article 4a was applicable, the District Court of
Amsterdam refused or partially refused to execute the EAW on the basis of that provision (roughly
34%). Regarding the other 50 execution-EAWs, where Article 4a(1) was not applicable, the District
Court of Amsterdam (partially) refused to execute only 7 EAWs (roughly 12%).
This high incidence of requests for supplementary information, of non-compliance with time
limits, and of (partial) refusals was caused by problems such as:
- not filling in section (d) of the EAWat all or not completely, clearly and correctly. Section (d) of the
EAW-form is the ‘instrument’intended to convey the information needed to determine whether
Article 4a applies, and, if so, whether surrender may be refused on the basis of that provision;
3. Recital (3) of the preamble to FD 2009/299/JHA.
4. For the meaning of that term in Belgium, Hungary, Ireland, the Netherlands, Poland and Romania see Kei Hannah
Brodersen, Vincent Glerum & Andr´
e Klip, The European Arrest Warrant and In Absentia Judgments (Eleven
International Publishing 2020), p 73–81.
5. ECJ, judgment of 26 February 2013, Melloni, C-399/11, ECLI:EU:C:2013:107, para 62. See further Alex Tinsley, ‘Note
6. An executing judicial authority is obliged to ask for supplementary information if it does not have sufficient information
in order to validly decide on the execution of anEAW, but if, after having acquitted itself of that obligation,it still does not
have the necessary information it may refuse to execute that EAW: ECJ, judgment of 10 August 2017, Zdziaszek, C-271/
17 PPU, ECLI:EU:C:2017:629, paras 103–105.
7. In cases where the requested person does not consent to his surrender, the final decision on the execution of the EAW
should be taken within a period of 60 days after his arrest (Article 17(3) FD 2002/584/JHA).
8. In specific cases in which the EAW cannot be executed within the period of 60 days (see Article 17(3) FD 2002/584/JHA),
that time limit may be extended with a further period of 30 days (Article 17(4) FD 2002/584/JHA).
8New Journal of European Criminal Law 13(1)
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