The Principle of Proportionality under the European Arrest Warrant — With an Excursus on Poland
| Author | Tomasz Ostropolski |
| Published date | 01 June 2014 |
| Date | 01 June 2014 |
| DOI | http://doi.org/10.1177/203228441400500204 |
| Subject Matter | Article |
New Journal of Eu ropean Crimina l Law, Vol. 5, Issue 2, 2014 167
THE PRINCIPLE OF PROPORTIONALITY
UNDER THE EUROPEAN ARREST WARRANT
– WITH AN EXCURSUS ON POLAND*
T O**
ABSTRACT
is article discusses the principle of proportionality in the context of the European
Arrest Warrant (EAW). It has been asserted that the EAW became a victim of its own
success, and currently serves all too o en as a tool to prosecute minor crimes, rather
than repress serious transnational criminality. e author subjects these statements to
a critical analysis. e requirement of proportionality of EAW is hard to justify under
the current Treaty provisions, as well a s provisions of the Framework Decision 20 02/584.
e Court of Justice also does not come up with clear guidelines in this context. e
principle of mutual recognition , as well as the principle of legality, may also con ict with
the attempts to require a proportionality check, especially if it were to be made by the
executing state. Howeve r, the call to handle this problem through p ractical, rather than
legislative means has not been entirely successful so far. In e ect, some national courts
have taken the initiative to determine in practice a po ssible scope of refusal based on the
lack of proportionality. e example of Poland is discussed in more detail through
demonstrating a legal and social background, as well as practical and legislative
measures recently taken. e author notes that re-opening negotiations on the EAW is
still considered a “Pandora’s box” in the EU, although it is not unlikely that this le will
be put forward again in the future.
Keywords: European A rrest Warrant; mutual recognition; Poland; propor tionality
* is a rticle is an updated and ex tended version of a previous paper (in Polish) of the s ame author
published in Europejski Przegląd Sąd owy No 3/2013.
** Ph. D., Head of European Cri minal Law Unit at the Polish Mi nistry of Justice. e views expressed
in this ar ticle are solely those of t he author.
Tom asz Ost ro pol sk i
168 Intersentia
1. INTRODUCTION
e European A rrest Warrant (hereina er: EAW) is the rst instrument putting into
e ect t he principle of mutual recognition in cri minal matters in the EU. It was adopted
as one of the so-called “compensating measures” with the aim to remedy negative
consequences of the free movement of persons, since it wa s clear that it entailed a risk
of unfettered actions of cri minals, when state borders were no longer a barrier.
e need to replace lengthy extradition procedures by a modern instrument
facilitating t he process of surrender was becoming increa singly urgent. e immediate
reason to speed up work on the EAW was the attacks of 11 September 2001. e
Framework Decision on the European Arrest Warrant1 (FD EAW) was adopted in
2002 with the i mplementation deadline of 1January 2004 (for newly acceding Member
States – the day of accession). With every year t he EAW was becoming an ever more
frequently used tool of cooperation. Still, it appeared it was not necessarily used to
counter the most serious crim inality. e med ia would report cases of EAWs issued to
prosecute allegedly pet ty o ences wit h the high costs that thi s procedure involved and
the risks to procedural safeguards. e problems with the disproportionate use of
EAWs2 were one of the reasons for the UK to step back from the former ird Pillar
measures a er the expiry of the transitiona l period under the Treaty of Lisbon.3, 4
is situation gave rise to a debate underpinned by an image of the EAW as a
victim of its own success.5 A remedy was proposed: to apply the principle of
proportionality in order to justify the use of EAW. Its proponents have claimed t hat
the EAW should be subjected to the rigours of the proportionality test, which would
provide the competent issuing authorit ies with more latitude on whether to resort to
the EAW, depending on the facts of the case.
is article ta kes stock of related challenges, discusses arg uments pursued in the
debate and reviews some of the proposed solutions. Specia l attention is paid to Poland,
where the problem of proportionality of t he EAW revealed it self most strikingly, and
where the rst remedies of legislative and non-legislative nature have been put
forward.
1 Council Fra mework Decision of 13June 2002 on the Eu ropean arrest warrant a nd the surrender
procedure betwe en Member States, OJ 2002 L 190, p.1.
2 Statement of the UK Home Sec retary eresa May and a debate in t he House of Commons, see:
www.homeo ce.gov.uk/publications /about-us/corporate-publications/2014-decision . Still, the UK
late r ex pres sed its wis h to s tep b ack into FD E AW, albe it w ith cha nges in n atio nal impl emen tin g law .
3 Article 10(4) of the Protocol 36 on transitional provisions annexed to the Treaty of L isbon
(consolidated version OJ 2012 C 326, p.201).
4 J. Chalmers, “O pting-out of EU Police and Crim inal Justice Measure s: the United Kingdom’s 2014
Decision”, NJECL Volume 4, Issue 3, 2013.
5 See e.g. K. Weis, e Eu ropean Arrest Warrant – A Victim of Its Own Succ ess?, NJECL Volum e 2,
Issue 2, 2011, p.124.
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