The Principle of Proportionality under the European Arrest Warrant — With an Excursus on Poland

Abstract

This article discusses the principle of proportionality in the context of the European Arrest Warrant (EAW). It has been asserted that the EAW became a victim of its own success, and currently serves all too often as a tool to prosecute minor crimes, rather than repress serious transnational criminality. The author subjects these statements to a critical analysis. The requirement of proportionality of EAW is hard to justify under the current Treaty provisions, as well as provisions of the Framework Decision 2002/584. The Court of Justice also does not come up with clear guidelines in this context. The principle of mutual recognition, as well as the principle of legality, may also conflict with the attempts to require a proportionality check, especially if it were to be made by the executing state. However, the call to handle this problem through practical, rather than legislative means has not been entirely successful so far. In effect, some national courts have taken the initiative to determine in practice a possible scope of refusal based on the lack of proportionality. The example of Poland is discussed in more detail through demonstrating a legal and social background, as well as practical and legislative measures recently taken. The author notes that re-opening negotiations on the EAW is still considered a “Pandora's box” in the EU, although it is not unlikely that this file will be put forward again in the future.