EUROPEAN ARREST WARRANT IN FOCUS

The European Arrest Warrant (EAW) was brought about by an EU decision made shortly after 9/11. It was introduced as a measure to help bring suspects of terrorism and other serious crimes to justice across Europe’s borders in a uniform way. However, in some cases the way in which the EAW has been used in practice since its introduction has been quite different to what was initially envisaged.

The EAW is in the news because of the decision of Mr Justice Peart in the High Court last month in the case of Ian Bailey. Mr Bailey was a suspect in the murder of Sophie Toscon du Plantier but was never charged with or convicted of any offence in this jurisdiction and a decision has been taken by the authorities here not to charge Mr Bailey with any offence. However, the French authorities took a different view and sought to re-open the case. They issued an EAW for Mr Bailey’s extradition to France. They were able to do so because French law permits prosecution of a crime that occurred in another country, where the victim of that crime was a French national. Mr Bailey’s objection to his extradition is based in part on the contention that that the purpose for which the French authorities are seeking him is investigation rather than prosecution and also that he should not be extradited in circumstances where the authorities here have made a decision not to prosecute him. While the French criminal justice system is very different to ours, the High Court here has decided that the process commenced by the French authorities justifies his extradition on foot of an EAW.

However, Mr Bailey has now been granted leave to appeal that decision on the basis that the case involves an issue of such exceptional public importance that it should be determined by the Supreme Court, i.e. whether extradition is prohibited by Section 44 of the European Arrest Warrant Act 2003 where the offence for which the extradition is sought is committed here and where the victim is a national of the state requesting extradition which is seeking to prosecute the offence under its own laws when the DPP here has decided not to prosecute the person. He has indicated that he may also appeal to the European Court of Human Rights, if unsuccessful in this jurisdiction.

The other high profile case that has EAWs in the news lately is that of Julian Assange, founder of Wikileaks. He is fighting extradition from the UK to Sweden on charges that he had sex with a woman without her consent. He also lost his initial battle in the UK where the application to extradite him was successful and he is now appealing that decision there.

The attribute of the EAW that makes it useful, i.e. that it operates according to a consistent formula across all of the EU’s different legal systems is also its biggest weakness, in that its standard-form nature makes it inflexible. Once certain boxes are ticked judges considering applications for extradition pursuant to an EAW have no discretion in the attitude they may take to the application.

Allegations of murder or rape are precisely the types of serious crimes for which the EAW was originally introduced. However, while attention has been drawn to the EAW procedure by these high profile cases, there are less sensational examples of how the EAW operates in practice across Europe which ask questions of the procedure.

Jacek Jaskolski is a 58-year-old science teacher. He is in poor health and has suffered from a number of strokes. He and his wife moved from Poland to the UK in 2004. In June 2010 he was arrested in the UK on foot of an EAW from Poland.

While living in Poland in 2000 he obtained an overdraft limit on his bank account of 50,000 zloty (around €12,500). He withdrew money and ended up exceeding the overdraft by 11,684 zloty (around €3,000). He maintains he did this unintentionally. He then lost his job due to a serious medical condition, making it impossible for him to repay the amount due in one go. He tried to repay the debt in installments and failed. The bank repossessed his house, which it sold to repay the debt. In 2004 a Polish civil court certified that the debt was repaid in full and in July 2004 the Jaskolski family emigrated to the UK.

However, exceeding your overdraft in Poland is a criminal offence. What’s more, the prosecuting authorities in Poland appear to have no discretion when an offence has been committed and must prosecute the offence no matter how minor. Therefore, when Mr Jaskolski’s case came to their attention, it was an offence in Poland, they were obliged to prosecute it and, as Mr Jaskolski now lived in the UK, they felt obliged to seek his extradition from the UK to answer for his heinous crime.

From 2004 to 2010 Mr Jaskolski received no communication regarding any criminal case in Poland and indeed in 2007 he travelled to and from Poland for his daughter’s wedding without difficulty.

If extradited to Poland he is likely to spend months in jail awaiting trial regardless of the outcome of the prosecution there. His case came before the courts in December 2010 in the UK and is currently pending. It remains to be seen whether he will be extradited to Poland for something that would never be capable to amounting to a criminal offence in the UK.

If exceeding your overdraft were to be a criminal offence in this country, we might have to consider declaring the country an open prison to deal with the number of potential offenders. Indeed, if that were the case we might have to look at sending some of those that ran our banks to the International Court of Justice in The Hague!

The European Arrest Warrant was introduced in the wake of widespread concern about international terrorism to harmonize extradition procedures across Europe. It is a useful and necessary tool in the prosecution of serious crime in a Europe which depends for its success on freedom of movement across its boundaries. However, its use has thrown up a variety of issues in relation to differences between the legal jurisdictions in Europe in how they investigate and prosecute crime and, indeed, in what they describe as crime in the first place.