Latvijas Republikas Prokuratūra

Observing the principle of proportionality upon issuing the European Arrest Warrant

drukāt

Section 682(3) of the Criminal Procedure Law provides for that a request for the extradition of a person may not be submitted if the seriousness or nature of a criminal offence is disproportionate in comparison with the expenses of the extradition.

Prosecutors of the International Cooperation Division of the Department of Analysis and Management of the Prosecutor General’s Office refuse issuing of the European Arrest Warrants in approximately 20 per cent of the cases, referring exactly to the given Section 682(3) of the CPL or so-called “principle of proportionality”.

The European Commission in its Report from the Commission to the European Parliament and the Council on the implementation since 2007 of the Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States (COM(2011)175) has concluded that non-applying of the principle of proportionality in the issuing State is undermining the confidence in the European Arrest Warrant as the instrument of mutual recognition.

Upon proposal of the Commission into the Council of the European Union Handbook on how to issue a European Arrest Warrant were introduced the amendments (17195/1/10 REV 1) regarding the proportionality check, laying down that before the issuing of the European Arrest Warrant the Member States shall assess the seriousness of the offence, the probability of the judgment of conviction imposing the liberty deprivation penalty, as well as the effective securing of the protection of the public interests. An EAW should not be issued in a case, where after the surrender of a person to the issuing State a release of a person from the custody is possible, because the European Arrest Warrant system is set up with the purpose to combat the serious criminal offences and the organized crime.

The Council of the European Union in 7th Recommendation of its Report on the fourth round of mutual evaluations “The practical application of the European Arrest Warrant and corresponding surrender procedures between Member States” (17220/1/08 REV 1) urges Latvia as the issuing State to identify indicators to facilitate the decision on issuing an EAW in terms of proportionality

Taking into account the abovementioned, the International Cooperation Division, while considering the proposals of the persons directing the proceedings on issuing of the European Arrest Warrant, mainly assesses the following factors:

  • seriousness and nature of the criminal offence, the method and motive of its perpetration,
  • indications regarding use of violence,
  • factor of the infringement caused to the third persons,
  • amount of caused damage and indemnification of the damage,
  • analysis of the administrative costs related with the extradition (including the provision of a translation and escorting of a person),
  • possible penalty to be imposed,
  • non-existence of the double criminality in the executing State (applicable mostly to the criminal offences provided for by the Sections 161 and 262 of the Criminal Law).

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