European arrest warrants and time-barred enforcement in the state of residence of the convicted person: Too much,too late!

Abstract

The principle of mutual recognition is considered ‘the cornerstone of judicial cooperation’ in the European Union (hereafter EU). It requires Member States to recognise judicial decisions of other Member States, thus enabling a swift administration of justice. Within the field of criminal law, the Court of Justice of the European Union (hereafter CJEU) links this principle explicitly to the prevention of impunity, most clearly in the Popławski decision (following previous hints in Spajic or Petruhhin). It invokes this principle to oblige a Member State to execute a European arrest warrant (hereafter EAW) issued against one of its residents when the executing State cannot undertake to enforce the sentence itself due to, for instance, its domestic rules on limitation periods. In doing so, the Court overlooks the fact that those domestic rules may serve other fundamental interests and principles recognised by the EU and the CJEU itself, such as social rehabilitation and legal certainty. Moreover, a more balanced approach to (non-)recognition could also contribute to a swift administration of justice, namely as an incentive to the issuing State to avoid undue delays in the issuing of an EAW. Many States believe that, once a certain amount of time has elapsed since the conviction, the enforcement of a criminal sanction will become unfair or even counterproductive. The length of this period is proportionate to the seriousness of the conviction. As EU-broad harmonisation on the subject is unlikely in the short-run, mutual recognition should work both ways if the requested person has significant ties to the executing State.