The principle of proportionality and the EAW: uneasy bedfellows?
Although the European Arrest Warrant (“EAW”) between Member States should be employed as an ultima ratio, given the substantially coercive nature of the surrender procedure, the issuance of EAWs is increasingly commonplace in the European area. The plethora of EAWs issued by State authorities raises concern particularly in view of the necessity to respect the principle of proportionality.
The principle of proportionality in the context of the European Arrest Warrant can be examined from two different perspectives: on the one hand, the so-called “prospective proportionality” when the EAW is issued in a disproportionate way to the extent that the surrender procedure is activated to prosecute minor offences; and, on the other hand, “retrospective proportionality” when the penalties applied by the issuing State are perceived as disproportionate by the executing State (such terminology was first introduced by Haggenmuller, 2013). In this post, I will briefly deal with the former category of proportionality, the current issues, and the future perspectives. In the second part of the post, the Italian practice regarding the notion of “prospective proportionality” will be analysed, by referring to domestic legislation and recent case law.
Prospective proportionality: between envisaged legislative proposals and hope for changes
The notion of “prospective proportionality” is employed to identify cases in which the EAW is used by State authorities to prosecute minor offences, regardless of the human and financial costs associated to the surrender procedure. It has been argued that the EAW is a victim of its own success (Weis, 2011). According to the statistics published on the European e-Justice Portal, in 2019 more than 20,000 EAWs were issued by EU States. Indeed, whilst it was originally designed as a tool to repress serious transnational criminality, Member States have increasingly relied on EAWs to prosecute all kind of offences, including harmless and petty offences (e.g. even for the theft of a chicken!).
In this regard, a major problem continues to be the lack of any provision on proportionality in the Framework Decision on the European Arrest Warrant (“FD EAW” or “Framework Decision”): indeed, the EAW is not formally restricted to the most serious criminality. As a matter of fact, Article 2(1) of the Framework Decision – according to which “a European arrest warrant may be issued for acts punishable by the law of the issuing Member State by a custodial sentence or a detention order for a maximum period of at least 12 months or, where a sentence has been passed or a detention order has been made, for sentences of at least four months” – provides a relatively low threshold, which allow States to use the EAW also for minor crimes.
Pursuant to the principle of mutual recognition, executing States are compelled to execute a warrant. Indeed, domestic authorities may refuse to execute an EAW only in very few cases, listed in an exhaustive catalogue contained in Articles 3 and 4 of the FD EAW. Additionally, according to the case law of the CJEU, States may also refuse to execute a warrant in “exceptional circumstances” when fundamental rights are at risk (see C‑404/15 and C‑659/15 PPU Aranyosi and Căldăraru, para. 82, and C‑216/18 PPU Minister for Justice and Equality (Deficiencies in the System of Justice), para. 43).
From 2005 onwards, the topic of disproportionate warrants has regularly appeared in the documents of various EU institutions. In 2009, the Council flagged the issue of prospective proportionality as a matter of priority to be discussed in its future agenda. In its 2014 resolution, the European Parliament proposed to add a prior “proportionality check” with a view to avoiding the systematic issuing of EAWs for “trivial” offences. Notably, the EP pointed out how the disproportionate recourse to EAWs between Member States had caused unwarranted arrests and unjustified or excessive time spent in pre-trial detention, a situation at odds with the fundamental rights of suspects and accused persons. Furthermore, it underlined that the surrender procedure was a burden on the Member States’ resources, providing a conservative estimate of the average costs of enforcing an EAW at €20,000 per case.
Nonetheless, the Commission, in its follow-up to the EP’s resolution SP (2014) 447, showed reluctance to re-open the discussion on the core EAW legislation, ruling out the possibility of introducing a “proportionality test”. In its 2016 resolution, the Parliament – once again, unsuccessfully – reiterated its recommendations to the Commission for the introduction of a proportionality mechanism in the EAW.
After almost eight years since the envisaged legislative proposal by the EU Parliament, the situation has not changed much. However, over time, the Commission has been more and more responsive to the problem of “prospective proportionality”. For instance, in the latest version of the Handbook on how to issue and execute a European arrest warrant – a practitioners’ guide containing non-binding guidelines by the Commission – the issue of “proportionality” is addressed in several sections of the document. In particular, the handbook advises judicial authorities to consider whether issuing an EAW would be proportionate in light of the circumstances of the case and whether any less coercive Union measure could be used to achieve an adequate result. It further identifies the factors that the issuing State should take into consideration, such as:
(a) the seriousness of the offence;
(b) the likely penalty imposed if the person is found guilty of the alleged offence;
(c) the likelihood of detention of the person in the issuing Member State after surrender;
(d) the interests of the victims of the offence.
At the same time, it clarifies that the assessment of proportionality should be made only by the issuing authorities, in line with the fundamental principle of mutual recognition. The executing States are exceptionally allowed to enter into direct communication with the issuing authorities, but only when “serious concerns” on proportionality arise.
More recently, the issue of proportionality has also been mentioned by the Commission in its report to the EU Parliament and the Council on the implementation of the FD EAW. However, the Commission simply drew attention to the fact that some States have decided to provide for a narrower scope to address the proportionality of EAW that can be issued by their judicial authorities (e.g., imposing higher thresholds; requiring that a term of four months should still remain to be served, or requiring that the EAW must be in the interest of justice).
As matters currently stand, there still seems to be little hope for a “proportionality check” to be included in the EU legislation. Clearly, a viable solution to the disproportionate use of the EAW is to be found elsewhere. For example, resorting to less intrusive tools of mutual legal assistance (“MLA”) could constitute a good compromise (Haggenmuller, 2013; Ostropolski, 2014). Indeed, there are several alternative measures of cooperation on which the Member state States could rely – see, for instance, the European investigation order (“EIO”), the Framework Decision on Transfer of Prisoners or the Framework Decision on Probation and Alternative Sanctions (PAS). However, in practice, national courts seem to be unwilling to use alternative cooperation measures in place of the simpler and faster procedure of the EAW (Wouter van Ballegooij, 2020).
In a nutshell, we must conclude that – at least for the time being – the assessment on proportionality is left in the hands of Member States and practitioners. For now, the (dis)proportionate use of EAWs depends on both the sensitivity of domestic authorities and their willingness to resort to alternatives instruments of MLA.
Prospective proportionality: the “homemade” solution by Italy
As far as Italy is concerned, the Italian legislator has paid some attention to the issue of “prospective proportionality” by introducing a different threshold for the issuing of the EAW into domestic legislation.
Notably, Article 28(1)(b) of Law No. 69/2005 – which transposes the Framework Decision into domestic law – requires the Italian authorities to issue an EAW for the enforcement of a final conviction only if the sentence is no less than one year and that the execution was not suspended (instead of the four-month threshold set out in the FD EAW). This means that domestic authorities are precluded from issuing of a warrant: (a) when the judge has sentenced the person to a less than one-year term of imprisonment; or (b) when the judge has suspended the execution of the sentence according to Articles 163-168 of the Italian code of criminal procedure law.(1)
In addition, the Minister of Justice in its Vademecum for issuing the European Arrest Warrant – a non-binding document containing guidelines and recommendations on the EAW – has invited the judicial authorities to consider properly the principle of proportionality when issuing a warrant, in order to reach a “reasonable” and balanced decision. It states that, even if the EU Framework theoretically allows for the prosecution of petty offences (mentioning, for example, the case of other Member States that have issued an EAW for theft of a car or for the possession of very small quantities of narcotics), Italian national judges should avoid issuing an EAW in such disproportionate circumstances.
However, although domestic legislation provides for a higher threshold and the Minister of Justice has pushed towards a more considerate use of the EAW, it remains unclear what would happen if national authorities did not comply with the one-year threshold set out in Italian law (since, most likely, the executing States will just consider the four-month threshold provided by the FD EAW).
Finally, it is worth mentioning that in recent times, by judgment No. 14937 of 14 April 2022, the Italian Court of Cassation has paved the way for a “proportionality check” to be carried out by executing authorities. In particular, in the case at hand, the Court refused to execute an EAW issued by the Polish authorities for the only purpose of conducting an investigation.
According to the Italian judges, the very definition of the EAW as provided in Article 1(1) of the Framework Decision – according to which, the EAW is “a judicial decision issued by a Member State with a view to the arrest and surrender by another Member State of a requested person, for the purposes of conducting a criminal prosecution or executing a custodial sentence or detention order” – does not contemplate the possibility of using such a tool for investigation. This is especially true if one considers that EU legislation does offer an instrument for investigative measures as the EIO. In this regard, the Court of Cassation pointed out that, under recital 26 of Directive 2014/41/EU regarding the European Investigation Order, “with a view to the proportionate use of an EAW, the issuing authority should consider whether an EIO would be an effective and proportionate means of pursuing criminal proceedings”.
For these reasons, the Court of Cassation decided, although provisionally, not to allow the execution of the EAW issued by Poland. Accordingly, the Court has asked the Polish authorities to share more information with the Italian counterparts concerning the purposes underpinning the relevant warrant so that they can evaluate more accurately the proportionality of the EAW.
Given the above considerations, it appears clear that the issue of proportionality in the context of the EAW is far from being solved. The “soft” approach taken by the Commission – adopting non-binding guidelines and simply inviting national authorities to take account of balancing factors for a proportionate use of the EAW – has opened the way for different solutions at the domestic level, as the case of Italy demonstrates.
In conclusion, while EU institutions are on the fence about how to incorporate proportionality – still considering whether implementing a “proportionality test” to be carried out by executing authorities or whether providing for a refusal ground in case of disproportionate EAWs – Member States are providing their own national patches, trying to strike a balance between interests of justice and fundamental rights of the requested persons.
Undoubtedly, the assessment of proportionality at the domestic level should be praised, as it allows judicial authorities to take account of the individual circumstances at stake and consider whether the surrender procedure is the most appropriate tool. However, such “homemade” solutions might lead to uneven practice between EU Member States with regard to the various factors to be assessed for a “proportionality test”, and to a substantial fragmentation of the notion of proportionality within the European legal space.
(1) For the sake of clarity, in very general terms, the suspension of the execution of the sentences is granted by Italian courts when the final sentence does not exceed two years of imprisonment; in this scenario, the sentence is suspended for five years and if the convicted person does not commit other offences in such period, the crime is considered as extinguished.