The Europeanisation of extradition: how many light years away to mutual confidence?

The chapter revisits the innovations introduced by the Framework Decision on the European Arrest Warrant (EAW) and the establishment of an EU-wide system of free movement of judicial decisions in criminal matters, covering both pre-sentence and final decisions, within an Area of Freedom, Security and Justice. It focuses upon the functionality of the principle of mutual recognition and identifies certain problem areas that limit the substantive scope of the EAW. The chapter first examines the two major reforms introduced by the Framework Decision, namely the abolition of the ‘double criminality’ test and the limited grounds for refusal of execution, especially the rule against surrendering nationals. It is argued that such a refusal cannot now rest on any human rights considerations, despite its constitutional premise in a number of cases. The chapter also provides a commentary on the paradox that, while the Framework Decision dispenses with verification of the double criminality test for the categories of listed offences, it leaves the definition of those offences (and the penalties applicable in each case) to the issuing Member State. And in accordance with the Framework Decision, the Member State must respect fundamental rights as enshrined in Article 6 TEU as well as the principle of legality. Konstadinides argues that ‘mutual recognition’ does not necessarily imply mutual trust.