The European Commission has recently pursued Sweden to ensure its compliance with the Framework Decision on the European Arrest Warrant (EAW) and the associated surrender procedures through the infringement procedure (INFR(2020)2362). The Commission, in a reasoned opinion, has stated that the lack of the possibility of a retrial after an in absentia judgment in Sweden, inter alia, is incompatible with the EAW.
The European Arrest Warrant (EAW)
The EAW, operational since 2004, is a streamlined cross-border judicial mechanism designed to facilitate the surrender of individuals for prosecution or to serve custodial sentences, effectively replacing the more cumbersome extradition processes previously in place within the EU.
Within EU criminal law, and the Area of Freedom, Security, and Justice (AFSJ) more generally, the EAW has been and is a critical tool in the EU’s judicial cooperation framework, aimed at enhancing security and justice across Member States by ensuring that individuals who commit crimes cannot evade justice by crossing internal borders.
The specifics of the alleged infringement
The Commission’s reasoned opinion follow a letter of formal notice sent to Sweden receiving its notice in February 2021. The Commission’s assessment revealed that Sweden has not fully or correctly incorporated several key provisions of the Directive into its national legislation. These provisions include:
- The right to a retrial after an in absentia judgment:
- This provision ensures that individuals who were tried and sentenced in their absence have the right to a retrial.
- Privileges and immunities:
- This involves the handling of cases where individuals may have certain legal protections or immunities.
- Grounds for refusal based on lack of ne bis in idem (double punishment):
- This pertains to the principle that an act must be considered a crime in both the issuing and executing countries for the EAW to be valid.
- Possibility of a hearing pending a decision on the EAW:
- This ensures that the requested person has the opportunity for a hearing while awaiting the decision on their surrender.
Despite that being over three years ago, according to the Commission, Sweden has still not made the necessary legislative changes to fully align with the EAW Framework Decision.
The issuance of a reasoned opinion serves as a formal request for Member State to rectify the identified shortcomings within a two-month window. Failure to provide satisfactory responses may lead the Commission to escalate the matter by referring the matter to the Court of Justice of the European Union for adjudication under Article 258 TFEU.
The Commission’s infringements database
More on the specific infringement in this case, INFR(2020)2362, can be read on the Commission’s website here.