The surrender of prosecuted persons under the EAW procedure: Issues of transposition of EU criminal policy to the national level

Introduction

Clearly European Union (EU) criminal policy is tending towards the establishment of common and general standards, in creating a ‘European criminal justice area’. Such standards for the EU Member States, in accordance with the Lisbon Treaty, may concern substantive criminal law (art 83 of the Treaty on the Functioning of the European Union (TFEU)) and criminal procedural law (art 82 TFEU). Accordingly, EU criminal policy prescribes criminalisation and penalisation of specific acts, establishing criminal liability at the same or similar level, as well as enforcement of judicial decisions based on the principle of mutual recognition. It is said that the main goal of EU criminal policy is the fight against crime, while simultaneously strengthening European citizens’ belief that they live in the Area of Freedom, Security and Justice (AFSJ). This idea is directly expressed in art 3(2) of the Treaty on the European Union (TEU) which states:

The Union shall offer its citizens an area of freedom, security and justice without internal frontiers, in which the free movement of persons is ensured in conjunction with appropriate measures with respect to external border controls, asylum, immigration and the prevention and combating of crime.

It may be argued that EU criminal law is, in fact, a developing legal system, still in progress, of high importance, having regard to the transnational criminal proceedings to be conducted in accordance with the principle of European territoriality. Criminal law itself is said to be a sensitive area of common interest for EU Member States, especially where there are significant differences between national legal systems. Within the limits of the competences granted, the EU legislator recognising this kind of diversity may, however, fill the gaps and shortcomings whenever the action taken at the level of the EU shall bring added value. This directly follows from art 5 of the TEU (the principle of subsidiarity). Generally, EU criminal law has to prevent the hiding of offenders and exploitation of differences between national laws. To achieve this goal, it is important to strengthen mutual trust and confidence between national criminal justice systems. Furthermore, it appears necessary to ensure consistency and unity of EU legislation in criminal matters. Such an approach should lead to the more effective implementation of criminal policy throughout the EU. In fact, EU criminal law plays an important role in supplementing national criminal justice systems. ²

It is also worth stressing that criminal law, by its nature, reflects the basic values, customs and choices of society. The Treaty of Lisbon (2009) fully recognises this diversity, rooted in the legal tradition and culture of particular Member States. Nevertheless, ensuring a certain degree of coherence and uniformity of EU legislation in criminal matters is a sine qua non for its recognition in providing real ‘added value’. ³

An overview of the concept of punishment in legal theory and its implication for EU criminal policy

When assessing the role of punishment in today’s penology, one should start from its concept in legal theory and take especially into account the perspective of comparative criminology. Here, one may recall the views of George Fletcher, who argued that the concept of punishment enables us to understand criminal law per se. For Fletcher, punishment and guilt stand in an important conceptual relationship. Both are tied to the concept of wrongdoing, which in turn reflects human action. If we ask the questions ‘punishment for what?’ and ‘guilty of what?’ the answer to both questions is the same: wrongdoing, namely action in violation of the norms of criminal law. As Fletcher puts it, ‘the punishment enables us to understand the crime, and the crime enables us to understand the punishment’. ⁴ This may be seen as a continuation of Emile Durkheim’s suggestion that punishment by the State has the function of reinforcing the bond between the offender and the society that condemns his crime. As Fletcher points out, in Durkheim’s understanding crime is thus normal, inevitable and useful. ⁵

Another relevant approach to punishment may be found in the work of HLA Hart, who argued that there were five essential features of the ‘central case’ of punishment. ⁶ In his opinion, punishment must be:

(a) unpleasant: involve pain or other consequences normally considered unpleasant;

Such contemporary German writers as Claus Roxin and Günther Jakobs distinguish ‘negative general deterrence’ and ‘positive general deterrence’. The use of sanctions to scare or to intimidate people into compliance is an example of negative deterrence. Positive deterrence consists in reinforcing the norms against criminal behaviour. ⁷

In reference to the rationale of punishment, in the legal doctrine there are usually listed four goals: (1) general deterrence; (2) special deterrence; (3) rehabilitation; (4) isolation. ⁸ All four goals mentioned above may be grouped under the general consequentialist heading of ‘social protection’ as the purpose of punishment. The genesis of social protection as a rationale for punishment lies in the utilitarian theory developed by Cesare Beccaria and Jeremy Bentham.

In comparison, retributive theories are generally said to be linked to the search for justice in the criminal law process. More specifically, retribution recognises the criminal as a responsible human actor, someone who deserves punishment for his crime. For example, Immanuel Kant insisted that punishment is an imperative both for morality and of justice. ⁹

Despite the differences in legal cultures or traditions, a universal concept of punishment may be found in criminal law around the world. Punishment is argued to be a sanction imposed for a violation of legal norms designed by State authority to protect the security of the public. In these terms, punishment means justice enforced by the State. To compare, the old penology focused much attention on the offender, as an individual: his guilt, responsibility/liability and treatment, while the new penology assumes that crime is a normal phenomenon, and the question is how to manage it in the most efficient manner. Thus, in European legal and criminological literature, there is a strong argument that criminal sanctions should be regarded as an ultima ratio, a last resort, to be used only when other means fail. Additionally, welfare programmes operate in parallel with the criminal justice system, concerned with both offenders and the victims of crime, focusing on their procedural rights. As a result, if sanctions are to be applied, they need to take into account not only the interests of society as a whole, but also should be aimed at the social rehabilitation of the offender and his reintegration into society. One should not forget the emergence schemes of compensation and legal aid for victims of crime. It seems then that in searching for any new and more successful means in criminal justice, it is important to focus on the whole heritage of the past. All this should be informed by an evaluation of the existing legal norms and by research studies, especially in any attempt to set out a new anti-criminal order in Europe. ¹⁰

Finally, from a comparative point of view, one should recognise that generally the new trends in criminal policy are mediated through a human rights-based approach, which may involve the assistance for victims of crime, development of victimology studies and less punitive reactions to crime (alternative sanctions). Crime control as an output of EU criminal policy seems to be oriented not only towards the offender, but equally towards ‘social safety’, in the context of an AFSJ. This leads to a unifying influence in EU criminal law in relation to the national criminal justice systems of the Member States. This is important when one bears in mind that these States’ systems have divergent origins, in both common law and civil law systems, and that judicial practice shows that it is much easier to work out intensive, closer cooperation among the EU Member States which share the same or similar legal traditions, such as the Scandinavian countries. In summary, we may refer to the words of Fletcher: ‘Punishment in the modern age seeks to be either human or socially protective, and precisely to this degree it sheds its ritual quality of condemnation’. ¹¹

The European criminal justice area: From soft law to forms of binding EU law

In recent years, the scope of judicial cooperation in criminal matters among EU Member States has extended and intensified. Judicial cooperation in criminal matters has gradually moved from ‘soft forms’ to ‘hard forms’ of binding Union law. Actually, we may observe the formalisation of judicial cooperation in criminal matters among the Member States, as an emerging legal basis for creating a European criminal justice area. To recapitulate, the Treaty of Lisbon brought about fundamental changes in the functioning of EU criminal policy and justice. The pillar structure was abolished, and the former third pillar was covered by a unified legal regime (art 288 TFEU). The present Union legal instruments allow for the achievement of a uniform, and more coherent, supranational system of criminal justice. As was earlier mentioned, judicial cooperation in criminal matters among the EU Member States cannot properly function without at least minimum harmonising norms of substantive and procedural criminal law. In such harmonisation, a crucial role is played by the EU directives, in that the directives are binding legal instruments, which require Member States to implement its provisions into national legal orders. Also, an important role is designated to judicial dialogue between national courts and the Court of Justice of the EU (CJEU) (art 267 TFEU). ¹²

Minimum sanctions are likewise said to be a characteristic feature in the creation of a European criminal justice area. In accordance with EU criminal policy, such minimum sanctions should be effective, proportional and dissuasive. Here, the most interesting question, however, relates to the meaning of these terms in judicial practice and interpretation. ¹³ Regarding sanctions, it is also important to remember the provisions covered in the Charter of Fundamental Rights of the EU. In particular, art 4 of the Charter provides for a prohibition of torture and inhuman or degrading treatment or punishment, while art 47 deals with the right to an effective remedy and to a fair trial. ¹⁴

Another important feature of this domain is the principle of mutual recognition. Its basis has to be mutual trust and confidence in the national criminal justice systems. Mutual recognition is sometimes put forward as an alternative to harmonisation. ¹⁵

The fundamental role of mutual recognition is directly stressed in art 67(3) of the TFEU and officially proclaimed to be a ‘cornerstone’ for judicial cooperation in criminal matters among the EU Member States. A supranational legal order under the Treaty of Lisbon is characterised on the one hand by the principle of mutual recognition, but on the other hand by approximation of national laws in some specific fields of common interest. Such an approach intends to allow for establishing closer, and thus more efficient cooperation, in creating and applying criminal law norms within the EU. ¹⁶ However, as the judicial practice in criminal matters so far clearly indicates, the principle of mutual recognition cannot be applied in its pure form. In practice, the principle does not have an absolute character, and as such it has already met some criticism, particularly in relation to due process of law and the right to a fair trial.

Here, the main question in view of transnational criminal proceedings conducted by EU national judicial authorities, in accordance with the principle of European territoriality, concerns the procedural defence rights and legal safeguards for individuals. The legal basis for procedural rights, to be granted to suspects, accused persons or sentenced persons in criminal proceedings, ¹⁷ as well as to victims of crime, is directly found in the recent EU legislation. ¹⁸ Also, it is worth recalling that the first legal instrument which factually introduced the principle of mutual recognition in criminal matters is the Council Framework Decision 2002/584/JHA on the European Arrest Warrant (EAW). ¹⁹

It has been largely through the EAW system that the limits of applicability of the principle of mutual recognition in criminal matters have been developed through CJEU preliminary rulings. In this way it has become clear that the application of mutual recognition in criminal proceedings in its pure form is not always possible. Consequently, later EU legal instruments in criminal law allow, for instance, for the adjustment of sanctions, where there are incompatible interests regarding their duration or nature, and for the use of alternative measures according to the needs of the national justice systems. ²⁰

Another relevant consideration is the purpose of the punishment that is being imposed by the competent judicial authority of the EU Member State. Here, pursuant to para 9 of the Preamble of the Council Framework Decision 2008/909/JHA on the transfer of sentenced persons,

enforcement of the sentence in the executing State should enhance the possibility of social rehabilitation of the sentenced person. In the context of satisfying itself that the enforcement of the sentence by the executing State will serve the purpose of facilitating the social rehabilitation of the sentenced person, the competent authority of the issuing State should take into account such elements as, for example, the person’s attachment to the executing State, whether he or she considers it the place of family, linguistic, cultural, social or economic and other links to the executing State. ²¹

The CJEU has highlighted limits in the applicability of the principle of mutual recognition in criminal matters, through its rulings on the protection of basic rights, the rule of law and democracy. For instance, in the Case C-306/09, I.B., the Court noted (at paras 49–51):

…the European arrest warrant may, under Article 1(1) of Framework Decision 2002/584, apply to two situations. Thus, that arrest warrant may be issued, on the one hand, for the purposes of conducting a criminal prosecution or, on the other hand, for the purposes of executing a custodial sentence or detention order.

While the system established by Framework Decision 2002/584 is based on the principle of mutual recognition, that recognition does not, as is clear from Articles 3 to 5 of the Framework Decision, mean that there is an absolute obligation to execute the arrest warrant that has been issued.

The system established by the framework decision, as evidenced inter alia by the provisions of those articles, makes it possible for the Member States to allow the competent judicial authorities, in specific situations, to decide that a sentence must be executed on the territory of the executing Member State.

In Da Silva Jorge, the CJEU noted that, although the system established by Framework Decision 2002/584 was based on the principle of mutual recognition, such recognition does not mean that there is an absolute obligation to execute the arrest warrant that has been issued. The system established by that Framework Decision makes it possible for Member States to allow the competent judicial authorities, in specific situations, to decide that a sentence must be enforced on the territory of the executing Member State. The CJEU held that the ground for optional non-execution under art 4(6) of the EAW framework decision has the objective of enabling the executing judicial authority to give particular weight to the possibility of increasing the requested person’s chances of reintegrating into society when the sentence imposed on him expires. ²⁴

In its ruling in PPU Pál Aranyosi and Robert Căldăraru, the CJEU stated:

Article 1(3), Article 5 and Article 6(1) of the EAW Framework Decision must be interpreted as meaning that where there is objective, reliable, specific and properly updated evidence with respect to detention conditions in the issuing Member State that demonstrates that there are deficiencies, which may be systemic or generalised, or which may affect certain groups of people, or which may affect certain places of detention, the executing judicial authority must determine, specifically and precisely, whether there are substantial grounds to believe that the individual concerned by a EAW, issued for the purposes of conducting a criminal prosecution or executing a custodial sentence, will be exposed, because of the conditions for his detention in the issuing Member State, to a real risk of inhuman or degrading treatment, within the meaning of Article 4 of the CHFR, in the event of his surrender to that Member State. ²⁵

Regarding the surrender procedure under the EAW, a significant development occurred in PPU Artur Celmer in which the CJEU directly mentioned the right to a fair trial. Here, the CJEU highlighted the requirement of judicial independence as an essential element of the right to a fair trial. This is a right of cardinal importance as a guarantee that all the rights, which individuals derive from EU law, will be protected and that the values common to the Member States set out in art 2 TEU, in particular the value of the rule of law, will be safeguarded. The CJEU stressed that the high level of trust between Member States on which the EAW mechanism is based is founded on the premise that the criminal courts of the other Member States – which, following execution of an EAW, will have to conduct the criminal procedure for the purpose of prosecution, or of enforcement of a custodial sentence or detention order, and the substantive criminal proceedings – meet the requirements of effective judicial protection, which include, in particular, the independence and impartiality of those courts. ²⁶

In the ongoing discourse about the European criminal justice area, it would be remiss not to make reference to the Case C-128/18 Dumitru-Tudor Dorobantu, dealing with the lawfulness of the surrender a Romanian citizen under the EAW procedure, due to the conditions of detention in the prisons in Romania, as a possible breach of art 4 of the Charter of Fundamental Rights. Here, the CJEU decided inter alia that:

The executing judicial authority cannot rule out the existence of a real risk of inhuman or degrading treatment merely because the person concerned has, in the issuing Member State, a legal remedy enabling that person to challenge the conditions of his detention or because there are, in the issuing Member State, legislative or structural measures that are intended to reinforce the monitoring of detention conditions. A finding, by the executing judicial authority, that there are substantial grounds for believing that, following the surrender of the person concerned to the issuing Member State, that person will run such a risk, because of the conditions of detention prevailing in the prison in which it is actually intended that he will be detained, cannot be weighed, for the purposes of deciding on that surrender, against considerations relating to the efficacy of judicial cooperation in criminal matters and to the principles of mutual trust and recognition. ²⁷

Surrender of own-State nationals under EAW: The Polish experience

The surrender of own-State nationals has emerged as a significant subject of legal debate in many EU Member States, including Poland, concerning the scope of the justification to refuse surrender of a State’s own nationals under the EAW rules. ²⁸ There is a large body of legal argument, formal judicial proceedings and deliberation in Poland alone regarding the transposition of the provisions of the Framework Decision 2002/584/JHA on the EAW and the compatibility of the implementing national legislation with both the Polish Constitution and EU law. ²⁹ Successively, the automaticity of the surrender of own-state (Polish) nationals has been tested against art 55 of the Polish Constitution before the Constitutional Tribunal, ³⁰ and the Constitution was later amended. Article 55 of the Polish Constitution, as amended for compatibility with the operation of the EAW, reads:

1. The extradition of a Polish citizen shall be prohibited, except in cases specified in paras 2 and 3.

2. Extradition of a Polish citizen may be granted upon a request made by a foreign state or an international judicial body if such a possibility stems from an international treaty ratified by Poland or a statute implementing a legal instrument enacted by an international organisation of which the Republic of Poland is a member, provided that the act covered by a request for extradition:

1) was committed outside the territory of the Republic of Poland, and

2) constituted an offence under the law in force in the Republic of Poland or would have constituted an offence under the law in force in the Republic of Poland if it had been committed within the territory of the Republic of Poland, both at the time of its commitment and at the time of the making of the request. […]. ³¹

Under Polish criminal procedure, the most important role in the application of the mutual recognition system is played by the Polish Supreme Court, the decisions of which have shaped the practice of the national criminal courts of the lower instance. In this context there has been some impact arising from the legal doctrine in Polish penal science. ³² It seems that the most disputable issues have arisen in relation to art 5(3) of Framework Decision 584 regarding conditional surrender and art 55 of the Polish Constitution, that is to say the transposition of the Framework Decision into national law and then its proper application by the national judicial authorities. Article 5 of this Framework Decision regarding the guarantees to be given by the issuing Member State in particular cases provides in its third paragraph that:

where a person who is the subject of a European arrest warrant for the purposes of prosecution is a national or resident of the executing Member State, surrender may be subject to the condition that the person, after being heard, is returned to the executing Member State in order to serve there the custodial sentence or detention order passed against him in the issuing Member State.

In accordance with the second paragraph of art 607t, in the event of the conviction of the person referred to in para 1, and then a prison sentence or other measure involving deprivation of liberty, the provisions of art 607s paras 3–5 are respectively applicable. In principle, art 607s para 1 of Polish Code of Criminal Procedure refers to the EAW, which has been issued for the purpose of executing a custodial sentence prison sentence or detention order. It generally stipulates that the EAW may not be executed in respect of a Polish national or persons exercising their right to asylum in Poland, if they do not consent to be surrendered. In such circumstances, the imposed penalty has to be executed in Poland pursuant to Polish criminal law. Article 607t para 2 of the Polish Code of Criminal Procedure refers then to the provisions on the execution of the imprisonment sentence or a measure involving deprivation of liberty against a prosecuted person who is a Polish citizen or who enjoys the right of asylum in the Republic of Poland. These cover inter alia the procedure exequatur, and also the provisions of ch 66g of the Polish Code of Criminal Procedure as lex specialis in relation to the transposition of Council Framework Decision 909. ³³ But it should be noted that in accordance with the jurisprudence of the Polish Supreme Court, in the case of execution of the EAW for enforcement of a penalty or penalties imposed by a court of another EU Member State, the adaptation of this ruling to Polish law for the purpose of its execution is available only in terms of the amount of the criminal sanction: only when these criminal sanctions exceed the upper limit laid down by statute for the crime or offence in question in Poland. In this case, the only option is to impose a penalty or criminal measure for a period of time corresponding to the upper limit laid down in Polish law (art 607s § 4 sentence 2 of the Code of Criminal Procedure, in conjunction with art 607t § 2 of the Code of Criminal Procedure). ³⁴

It must be noted that the provisions of art 607t para 1 of Polish Code of Criminal Procedure do not formulate the grounds for refusing to execute the EAW against a Polish citizen or a person who benefits from the right of asylum. On one reading, therefore, there may be an assumption that surrender would be conditional and that the person would be sent back to Poland after the valid and final conclusion of the criminal proceedings in the EAW issuing Member State. So, a number of Polish Regional Courts acting under art 607t para 1 of the Code of Criminal Procedure have maintained that its provisions, based on art 5(3) of the Framework Decision, allowed only a conditional surrender of a person for prosecution in the country of the issuing EAW; and in the event of conviction and a sentence of imprisonment, a judgment against him or her, or another measure involving deprivation of liberty, the person in question had to be sent back to Poland as the EAW executing Member State.

However, over time, problems with this mechanism have surfaced such that Polish nationals who had been surrendered under art 607t of Polish Code of Criminal to the issuing EAW Member State for the purposes of their prosecution (in Poland, all Regional Courts are competent to execute the EAW) were not returned to Poland. In some cases, for example that of German courts, there was a refusal to guarantee such a conditional return or surrender of Polish nationals for purposes of executing a prison sentence. Such a refusal affected the guarantee that, in the event of a prison sentence or other measure involving the deprivation of liberty, the ‘conditionally’ surrendered person would automatically and irrespective of his will be retransferred to Poland in order to serve the imposed penalty there.

In one particular case (that of P), the prosecuted Polish national was apprehended in Poland and did not agree to be surrendered under art 607t of Polish Code of Criminal Procedure. The Polish Regional Court argued, in support of its decision refusing a conditional surrender, that so far in a number of cases the reservation for a ‘conditional’ surrender of Polish offenders had not been respected in Germany. In turn, the German judicial authorities in their reasoning referred to the provisions of the Council of Europe Convention on the Transfer of Sentenced Persons of 1983. ³⁵ In general, under that Convention, sentenced persons may be transferred to serve the sentence imposed on them only to their State of nationality and only with their consent and that of the States involved (art 3(1) of the 1983 Convention). Though, art 2 para 3 of the Convention, allows for transfer without the consent of the sentenced person for the execution of the imposed sentence, ³⁶ and the Additional Protocol to the Convention, of 18 December 1997, in art 2 para 1 reads:

Where a national of a Party who is the subject of a sentence imposed in the territory of another Party as a part of a final judgment, seeks to avoid the execution or further execution of the sentence in the sentencing State by fleeing to the territory of the former Party before having served the sentence, the sentencing State may request the other Party to take over the execution of the sentence.

However, it seems that this assertion has been contradicted by the consistent case law of the Polish Supreme Court. In its jurisprudence, the Polish Supreme Court was prepared to allow conditional surrender of the Polish citizens under art 607t para 1 of the Code of Criminal Procedure. This was on the ground that a refusal of such a conditional surrender would breach the principle of mutual trust or confidence in the criminal justice systems of the EU Member States. Furthermore, in the view of the Supreme Court, the provisions of art 607t para 1 of the Code of Criminal Procedure (also in its old wording) did not provide a normative ground for refusal to execute the EAW or to make any reservations. Such grounds are only listed in arts 607p (from art 3 of the Framework Decision on the EAW – listed as mandatory grounds) and 607r (from art 4 of the Framework Decision – listed as optional grounds). ³⁸ The Polish Supreme Court in its decision issued on 12 September 2012 (Case number: V KK 238/12) argued first of all that the provision of art 607t para 1 of the Code of Criminal Procedure does not formulate a normative ground for refusal to execute the arrest warrant; it includes, however, a requirement addressed to a Polish court, so that in a case of executing the EAW against a Polish national or a person who benefits from the Republic of Poland with the right of asylum, the surrender is conditional, providing that the person in question will be sent back to the territory of the Republic of Poland after the valid and final conclusion of the criminal proceedings. On the other hand, as the Polish Supreme Court noted, the practice of the judicial authorities of some other EU Member States was to disregard the decisions of Polish courts as to the obligation to surrender Polish nationals (or asylum seekers) to the territory of the Republic of Poland after the valid and final conclusion of the criminal proceedings. The court was additionally concerned that this may theoretically violate a ground for refusal to execute an EAW if, for example, its execution in a specific case would jeopardise basic rights (art 607p para 1, itiem 5 of the Polish Code of Criminal Procedure). ³⁹

The recent cases arising in the Polish Regional Courts clearly show that, despite the entry into force of amendments to Polish criminal procedure since July 2015, judicial practice on the surrender of Polish nationals under the EAW is in a state of complexity. For instance, the findings of the analysis by Banach-Gutierrez of the cases pending before the Regional Court in Wrocław, in the years 2016–2018 (an overview of 35 cases), show that the majority of prosecuted persons who were asked did not agree to be surrendered to the EAW issuing State for the purposes of conducting a criminal prosecution under art 607t para 1 of the Code of Criminal Procedure. However, as it previously stated, in accordance with the line of jurisprudence of the Polish Supreme Court, the lack of express consent by the prosecuted person cannot be taken as a ground for refusal for executing the EAW by Polish judicial authorities, since the guarantee of conditional surrender is strictly associated with the principle of mutual trust or confidence in criminal justice systems among the EU Member States. This means that in the practice of Polish judicial authorities, in each case such a prosecuted person is actually surrendered to the EAW issuing Member State. Interestingly, the case files examined showed that in the event of the surrender for the purpose of executing a custodial sentence or detention order, the answers given by the prosecuted persons were on the whole positive in this regard, usually asserting a close linkage with the EAW issuing Member State, for example, the place of living or family relations.

From the perspective of the Polish experience, therefore, it would seem that the main problem is that when there is a conditional surrender of the Polish nationals for the purposes of conducting criminal prosecution against them in the EAW issuing Member State, they are most often not sent back to Poland. Moreover, the issuing EAW Member State in the majority of cases does not deliver any information about the actions taken in the course of criminal proceedings or their completion to Polish judicial authorities. ⁴⁰

At this point, it should be noted that the condition regarding the return of the requested person to serve the custodial sentence in his or her home country should be clearly stated by the EAW executing Member State. As it is expressed in the Handbook on How to Issue and Execute a European Arrest Warrant of 2017:

…where possible, the issuing and executing Member State should agree on the details of this condition before the executing Member State decides on the surrender. Where it is already known, prior the EAW being issued, that the requested person is national or resident of the executing Member State, the issuing authority could already indicate on the EAW form, its consent to a potential return condition. The issuing Member State is responsible for ensuring that the condition is fulfilled. When a custodial sentence or detention order passed against the surrendered person becomes final, the issuing Member State must contact the executed Member State to arrange the return. The issuing Member State should ensure that the sentence is translated into the language of the executing Member State. ⁴¹

Overall, it may be argued that the EAW system requires further improvement, in particular in relation to the conditional surrender under art 5(3) of the Framework Decision 2002/584/JHA regarding own-State nationals or residents of the EAW executing Member States. There is a need for more effective national judicial dialogue, both horizontal and vertical. This relates especially to the judicial dialogue among the national courts of the EU Member States, and also between the national courts of the EU Member States and CJEU under art 267 of TFEU, to reach a greater consistency in judicial practice. At the same time, in putting EU criminal policy into practice, the process should be informed by a social and human rights approach, as part of a European area of criminal justice, for the benefit of all citizens of Europe.

Conclusions

The CJEU has contributed significantly to the development of EU criminal policy through the procedure of preliminary rulings (art 267 TFEU), which may serve as guidelines for national criminal justice systems. It seems, however, that in the context of the European criminal justice area some more attention should be focused on two main questions; first, the role or purpose of punishment in contemporary European penology, and secondly, limits on the application of mutual recognition in judicial cooperation in criminal matters among the Member States. It is a true that harmonisation of national criminal law and procedure in the sense of approximation of legislation, as well as the principle of mutual recognition, are essential in the creation of a European criminal justice area. However, the principle of mutual recognition, inspired by the idea of mutual trust or confidence in national criminal justice systems, does not have an absolute character. In the light of the above discussed CJEU rulings, one may assume that the limits of mutual recognition principle are determined first of all by the protection of basic human rights, the rule of law and democracy. Factually, these are the fundamental principles governing the EU criminal policy and, at the same time, are binding for all Member States.

Thus in cases dealing with the surrender of prosecuted persons to an issuing EAW Member State or the return to the EAW executing Member State of nationality, the attention of the competent national judicial authorities should be focused on such principal issues as the role or purpose of punishment, respect for fair trial standards and social rehabilitation of the offender, as well as his or her reintegration into society. Alongside the more repressive aspects of the EU enforcement strategy in relation to criminal policy, there should be a more socially oriented approach.

Consequently, one route out of a today’s tangle of policy, principle and practice would be to accept that an important role or purpose of sanctions, in the meaning of punishment in EU criminal policy, may be the social rehabilitation of the offender, and finally his or her reintegration into society. Such an approach would also provide some new opportunity to avoid the use of isolating measures and penalties, while improving the normative situation of the accused or the convicted.