Abuses of the European Arrest Warrant: a Source of Injustice

The European Arrest Warrant, or EAW, was a major breakthrough in the fight against cross-border crime in the EU.

It was designed to speed up the capture of the worst offenders such as terrorists or human traffickers by replacing the old slow extradition process with a direct court-to-court warrant issuing system.

The European Arrest Warrant, while very efficient in achieving its main objectives, has also attracted criticism over the detention of individuals for very minor and/or quite old crimes. This has given rise to concerns about human rights and the fairness of cross border justice.

Under the EAW a person can be quickly handed over to another Member State circumventing a traditional political review. This has opened up a discussion on the adequate legal safeguards that should be in place.

In this article, we will break down how the European Arrest Warrant in Poland works and other things related to it. Therefore, keep reading!

The European Arrest Warrant: A Quick Primer On The Legal Framework

Before diving into the abuses, it helps to understand the basics. The European Arrest Warrant was established under the Council Framework Decision of June 13, 2002, and it came into force on January 1, 2004.

It allows a court in one EU member state to issue a warrant requesting the arrest and surrender of a person located in another member state, either for criminal prosecution or to serve an existing prison sentence.

The system is built on a principle called mutual recognition. In simple terms, every EU country agrees to trust the judicial decisions of every other EU country.

When a Polish court issues an EAW, German or French courts generally honor it. And they surrender the requested person without re-examining the merits of the underlying case.

Political authorities have no say in the decision. It is a purely judicial process. There are threshold requirements.

For prosecution cases, the offense must carry a maximum sentence of at least twelve months of imprisonment. For enforcement of an existing sentence, the remaining prison term must be at least four months.

Additionally, for 32 categories of serious offenses – including terrorism, human trafficking, and drug trafficking – the requirement of dual criminality (meaning the act must be a crime in both countries) is waived entirely.

Additionally, time limits are strict: if the person consents to surrender, the executing state must decide within ten days; otherwise, the deadline is sixty days, with a possible extension of thirty more.

The Proportionality Problem: When Minor Crimes Lead To Major Arrests

The Framework Decision that created the European Arrest Warrant in Poland contains no explicit requirement that the issuing authority conduct a proportionality check before issuing a warrant.

The threshold requirements (twelve months maximum sentence, four months remaining sentence) are quite low.

This means that an EAW can technically be issued for a wide range of minor offenses, as long as they meet that minimum sentencing threshold.

The consequences have been striking. Over the years, EAWs have been issued for offenses that most reasonable people would consider trivial.

Real-World Examples Of Eaw Abuse

Documented cases include warrants for the theft of a piglet, possession of less than half a gram of cannabis, stealing two car tires, riding a bicycle while intoxicated, and receiving a stolen mobile phone without knowing it was stolen.

In one case from Romania, an EAW was issued for the theft of ten chickens. A report commissioned by the Council Presidency as far back as 2007 flagged these issues and called for an EU-level discussion on proportionate issuance.

Non-Binding Recommendations

The European Commission admitted the issue in its implementation report in 2011, pointing out that there was a large-scale use of EAWs for minor offenses.

The Commission advised that the authorities issuing the warrants take into account the gravity of the offense, the expected punishment upon surrender, and if other, less strict measures could produce the same outcome.

However, this is the main point: these are only mere suggestions and do not have any legal force.

The proportionality test is still something that the issuing authorities can choose whether or not to do it.

Additionally, the new EAW Handbook which was updated in November 2023 still uses advisory terms instead of imposing mandatory requirements.

European Arrest Warrant in Poland: Poland’s Impact On The EAW System

Now that you are aware of this, let us talk about exactly what significance does Poland has in this.

Data Insights: Poland As The Leading EAW Issuer

No discussion of European Arrest Warrant in Poland abuse is complete without addressing Poland. The country has been, by a considerable margin, the single largest issuer of European Arrest Warrants since the system began operating.

Research published in the Central and Eastern European Migration Review found that Polish-issued EAWs accounted for roughly one-third of all warrants issued across the entire EU between 2005 and 2013.

Polish court data tell a dramatic story.

In 2004, Polish courts issued 1,619 warrants. However, authorities successfully realized only 19 – reflecting a system that was still finding its footing.

As the mechanism matured, execution rates improved considerably. By 2008, the number of issued warrants peaked at 2,926, with 989 individuals surrendered. The numbers have since declined but remain significant.

In 2022, Polish courts issued 1,014 EAWs, with 775 individuals surrendered. Germany was consistently the top destination for Polish EAWs, followed by the United Kingdom (before Brexit), France, and Italy.

The reason behind these numbers lies partly in the structure of Polish criminal law. Under the principle of legality that governs Polish prosecution, the law has historically required authorities to pursue all criminal offenses.

Polish law has often been interpreted as requiring an European Arrest Warrant in Poland for almost any offense where the suspect’s location abroad is unknown. And that’s specifically Article 607a of the Code of Criminal Procedure.

This meant that prosecutors were issuing European Arrest Warrant in Poland requests for:

• Minor thefts.
• Small-scale fraud.
• Failure to pay maintenance.
• Offenses that had been committed years or even decades earlier.

The Human Cost Of Rigid Prosecution

Academic researchers have documented cases where authorities issued EAWs against individuals who had long since built stable, law-abiding lives in other EU countries.

The human cost is significant. When authorities execute an EAW, they arrest the person. Authorities often hold them in pre-trial detention, and eventually surrendered to the issuing country.

For someone whose offense was stealing a small amount of money years ago, the disruption to their family, employment, and social integration can be devastating – entirely out of proportion to the original offense.

Human Rights And Systemic Legal Challenges

Beyond minor offenses, the European Arrest Warrant (EAW) faces systemic threats from national laws that conflict with European human rights standards, often prioritizing operational speed over individual rights protections.

The “Real Risk” Test: Aranyosi And Căldăraru

The 2016 CJEU Aranyosi and Căldăraru ruling established a two-step test requiring executing states to halt surrender if a “real risk” of inhuman treatment, such as severe prison overcrowding, exists in the issuing country. This framework is currently critical regarding Polish legal reforms on life imprisonment.

The Conflict Of “Absolute Life” Sentences

The introduction of “absolute life sentences” (life without parole) poses a significant legal challenge to the European Arrest Warrant (EAW) framework.

Based on European Court of Human Rights (ECHR) rulings like Vinter v. UK, sentences must be “reducible,” requiring prospects of release and periodic review.

Since Article 3 of the ECHR prohibits irreversible sentences, nations such as Germany or Ireland may refuse to extradite individuals to jurisdictions like Poland, creating a legal paradox where strict penal policies inadvertently protect individuals from extradition.

Procedural Flaws And Fair Trial Rights

The speed of the European Arrest Warrant in Poland process can sometimes act as a barrier to a fair trial. 

Barriers To A Fair Defense

When authorities arrest a person on an EAW, they often process them in a language the person does not fully understand. Additionally, the issuing state provides very little access to the case file.

EU directives guarantee the right to interpretation and legal counsel. However, member states do not always implement it consistently.

Violations Of Legal Principles

The principle of specialty is another area prone to abuse. This principle dictates that a person who has been surrendered can only be prosecuted for the specific offenses named in the warrant.

However, once a person is physically back in the issuing country, monitoring compliance with this principle becomes extremely difficult.

Cases have occurred where authorities brought additional charges after surrender, effectively circumventing the protections that the executing state had relied upon when agreeing to the transfer.

Authorirties sometimes neglect the ne bis in idem principle – protection against double jeopardy – in cross-border cases as well.

Now, let’s say someone is going through prosecution or acquittal for the same acts in another jurisdiction. In that case, they must refuse the EAW.

Yet, due to gaps in communication between judicial databases across member states, authorities issue warrants. This leads to prolonged and costly legal battles to correct the error.

For those facing these situations, understanding how the law protects them is important! It is the first step toward mounting an effective defense.

The Rule Of Law Dimension 

EAW abuse is not only a proportionality problem – it also intersects with broader concerns about the rule of law in certain EU member states.

Judicial Independence And The “Celmer” Case

Judicial Independence and the “Celmer” Case When a government meddles in its judiciary, it damages the essential trust that the European Arrest Warrant in Poland system is based on.

In the famous 2018 case LM v. Minister for Justice (Celmer), the Court of Justice of the European Union (CJEU) stated that the authorities executing the arrest warrant must use a two-step verification process.

Apparently, this would help them to decide if the problems with the rule of law are so serious that they lead to a real risk of an unfair trial that can justify a refusal to execute the warrant.

Recent Rulings: Puig Gordi (2023)

The 2023 Puig Gordi decision explained that the refusal grounds in the European Arrest Warrant in Poland directive are exhaustive but that nevertheless a member state may still raise fundamental rights objections under the EU Charter.

The judges set a very strict condition when they decided that the executing authority will not reject the surrender procedure. And that too just because the issuing state lacked jurisdiction. However, there was one exception: the presence of systemic deficiencies which deprive the person of an effective remedy.

This approach preserves the principle of mutual trust that lies beneath the system of mutual recognition even when human rights violations are at issue.

Bottom Line

In practice, successfully challenging an European Arrest Warrant in Poland on human rights grounds remains a tough battle.

For the last twenty years, people have blamed the EAW for any abse they faced. And that’s not only for catching dangerous criminals. Rather, it was also for ordinary people who commit minor offenses.

The EAW has made families break down, people losing their jobs, and violation of basic human rights. And it has all happened because of a legal instrument. Something that no one was to use for pursuing small-time criminals across a continent.

The EAW’s main strength – its efficiency – is ironically the very thing that provides a window to misuse where the individual’s rights may sometimes be overlooked in favor of the pace of the procedure.