The Implementation of the European Arrest

This book provides a critical analysis of the principle of mutual recognition of judicial decisions in criminal matters in the EU, through a detailed assessment of its most prominent instrument, the European Arrest Warrant (EAW). It conceptualises and contextualises the lack of clear vision in the building up of the area of freedom, security and justice from a EU constitutional law, as well as a comparative and international criminal law standpoint.

Massimo Fichera is currently Lecturer in European Studies at the Network for European Studies, University of Helsinki. His interests lie in constitutional theory and the intersection between EU and international law from an interdisciplinary perspective. He has published a monograph and two co-edited books, as well as a number of articles covering the area of freedom, security and justice, EU law, transnational law and same-sex marriage. He has been a Visiting Researcher at the International Institute for the Sociology of Law (IISL), Oñati (Spain) and is a member of various associations, including the International Association of Constitutional Law. In the past he has given lectures in several academic institutions, such as the Max Planck Institute for Foreign and International Criminal Law and the IISL. He was previously a Post-Doctoral Fellow at the Faculty of Law, University of Helsinki. Before joining the University of Helsinki, he completed his PhD at the University of Edinburgh and carried out research during his internships in international organisations, including the European Commission and the United Nations. He holds a degree in Law (University of Messina) and a Master in International Affairs (ISPI, Milan) and qualified as lawyer in Italy.

Acknowledgments	p. v
Abbreviations	p. xi
About the author	p. xiii
Introduction	p. 1
Cooperation in Criminal Matters in Europe	p. 5
Introduction	p. 5
Forms of cooperation in criminal matters in Europe	p. 5
The European extradition model	p. 11
The evolution of European cooperation in criminal matters until the Maastricht Treaty	p. 23
Freedom, security and justice: the new agenda	p. 28
First preliminary conclusions	p. 37
The Principle of Mutual Recognition in Criminal Matters: Evolution and Main Features	p. 41
Introduction	p. 41
The current mutual recognition agenda	p. 41
Mutual recognition v. harmonisation	p. 48
The Treaty of Lisbon	p. 52
Mutual recognition: rationale and context	p. 59
Conclusion	p. 64
Emergence and Nature of the European Arrest Warrant	p. 67
Introduction	p. 67
The trend towards simplified forms of extradition	p. 67
The birth of the European Arrest Warrant: background and ratio	p. 70
General features of the European Arrest Warrant. A new creature or a hybrid?	p. 77
General principles	p. 79
Procedure	p. 84
Issuing of the EAW	p. 85
Transmission of the EAW	p. 85
Decision to execute	p. 87
Decision to surrender	p. 87
Conclusion	p. 90
Defining Crimes in the European Union: A Sisyphean task? Double Criminality and Related Issues	p. 93
Introduction	p. 93
Crimes for which double criminality is lifted: all problems solved?	p. 93
Crimes not subject to harmonisation	p. 97
Murder and rape	p. 98
Some special cases	p. 107
Crimes subject to harmonisation	p. 109
Terrorism, organised crime, drug trafficking, money laundering, trafficking in human beings, facilitation of unauthorised entry and residence	p. 109
Corruption, fraud, euro counterfeiting, computer-related crime, sexual exploitation of children and child pornography, environmental crime	p. 116
General assessment of the partial abolition of double criminality	p. 118
Ne bis in idem and mutual trust	p. 122
Conclusion	p. 125
The Implementation of the European Arrest Warrant in the EU Member States: General Overview and Two Case Studies	p. 127
Introduction	p. 127
The removal of the nationality exception and the reaction of the national Constitutional Courts	p. 128
The implementing legislation in the UK and Italy: divergence and convergence	p. 135
Introduction	p. 135
The Italian system	p. 136
The transposition of the Framework Decision in the Italian system	p. 136
The EAW in Italy: the main features	p. 141
The UK system	p. 148
The transposition of the Framework Decision in the UK system	p. 149
The EAW in the UK: the main features	p. 150
Practice at national level	p. 157
Italy	p. 157
United Kingdom	p. 162
The general attitude of Member States towards the Framework Decision	p. 168
The European Arrest Warrant and Freedom, Security and Justice	p. 175
Introduction	p. 175
Security vs. freedom: the protection of human rights in the Framework Decision	p. 176
Security vs. freedom: Europol and Eurojust	p. 189
The role of the European Court of Justice in the balance of principles	p. 192
The notions of freedom, security and justice	p. 198
The relativity of freedom, security and justice: criminal law without a State?	p. 198
European criminal law and community	p. 201
From reciprocity to mutuality	p. 203
Mutual trust	p. 207
Conclusion	p. 211
Conclusion	p. 215
Appendix. Grounds for non-execution provided for in the implementing statutes of the United Kingdom and Italy	p. 223
Bibliography	p. 227
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The Implementation of the European Arrest Warrant in the European Union: law, policy and practice

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