What is ENA and what is it?
The European Arrest Warrant (ENA) is simply a legal instrument under the Framework Decision of the Council of the European Union of 13 June 2002 which allows the transfer of persons between the associate States of the European Union in order to bring them to justice or to execute the punishment already imposed. Unlike classical extradition, the ENA procedure was designed to simplify and velocity up transfers between EU countries.
The primary function of ENA is to let for the fast detention and transfer of a fishy or convicted individual without the request for long and complex extradition proceedings. The issuing of specified an order involves the presumption of common trust between the countries of the Union – each associate State assumes that another associate State ensures respect for human rights and a fair process.
The ENA may be issued both at the phase of the investigation (e.g. erstwhile the fishy has fled abroad) and erstwhile the individual afraid has already been convicted and avoids the execution of the penalty.
Is ENA and END the same?
ENA (European Arrest Order) and END (European Investigation Order) are 2 separate legal instruments which execute completely different functions:
- ENA concerning the detention and transfer of a individual from 1 associate State to another for the intent of judging or executing a penalty. It is the equivalent of extradition within the EU.
- END in turn it is simply a tool for evidence collection abroad. Within the END it is possible, for example, to interview a witness in another country, safe correspondence, search the premises or get telecommunications data. However, it does not service to halt a person.
Although both warrants may happen in parallel in the same case – e.g. erstwhile an investigation in Poland requires proof to be secured in Germany and at the same time the arrest of a fishy residing in France – it should be remembered that they are of a separate nature and effect.
Moreover, the release of ENA does not require an END and vice versa. Both orders are independent of each other, even though there are partially common rules harmonising criminal law in the European Union.
How to find out if ENA has been issued to you?
There is formally no publically available database containing active European Arrest Orders. Information on ENA does not always should be made available automatically to the individual concerned, especially if ENA has been issued in the course of the investigation. However, there are respective ways to find this fact:
- Check in SIS II (Schengen Information System) – ENA data are entered as ‘alerts’ of the second level of safety of three. specified entries are not public to the citizen, but police or Border defender may uncover their existence during the inspection.
- Stopping abroad – we frequently find out about the existence of ENA only erstwhile we are actually detained in another EU country. Law enforcement authorities are then obliged to supply basic information on the warrant and to let contact with a lawyer.
- Verification by lawyer – a professional typical may submit an appropriate enquiry to the Public Prosecutor's Office or to a court that could be ENA applicants. Although it is not always possible to get a answer (especially before the message of objections), any entities supply information, peculiarly in the event of a legitimate legal interest. This may in turn aid to make a defence strategy.
Can ENA be the basis for extradition?
Yes – though in the legal sense of ENA is not a classical extradition, thus results in: transferring a individual to another country. The difference is simply a simplified procedure and a deficiency of political consent (as in the case of conventional extradition) due to the fact that the decision is taken only by the court. Furthermore, the Constitutional Court concluded that ENA itself is not besides different from extradition. Therefore, according to the Court, akin schemes should be applied to measure the merits of ENA’s proposals and the criteria for assessing them.
Importantly, precisely due to the above a individual transferred under ENA may not be tried for acts another than those indicated in the order (so-called speciality rule). This means that, for example, France, to which the individual wanted for fraud has been transferred, cannot automatically accuse him of another crime which was not covered by ENA – unless Poland agrees.
Only when:
- alleged acts are a crime in both countries (so-called double criminality),
- the case concerns an act in which at least 12 months of imprisonment is punishable,
or (in case of punishment):
- the individual has been sentenced to at least 4 months in prison.
In any cases, the court may refuse to execute the ENA – e.g. erstwhile there is simply a real hazard of human rights violations or erstwhile the substance concerns political crimes. This is the case where, in the opinion of the Polish authorities, the implementation of ENA involves supporting the prosecution of political actions, i.e. criminal proceedings are carried out against opposition policy which has not abused its powers, and the conduct itself is only a way to destruct it from political life, or erstwhile the implementation of ENA causes that in the requesting country, during the course of proceedings, the human rights of the individual may be violated.
How can we aid you?
If you fishy that you are covered by the European Arrest Order – or have just been executed against you – it is crucial to consult an experienced lawyer as shortly as possible. We are working on:
- verification that ENA was actually issued,
- to challenge the transfer decision (if there are grounds for refusing to execute ENA),
- representing the interests of the individual detained at each phase of the extradition procedure,
- cooperation with abroad law firms to find at what phase the case is in the issuing State,
- assessing whether the alleged European Supervisory Order (alternatives for interim arrest) can be applied,
- preparing an effective procedural strategy – even before the transfer takes place.
Our aim is always to reduce legal risks and to give you the top possible control over the situation. Remember – in matters about ENA time works against. The sooner you take steps, the more defence options stay open. In turn, if you think you are a victim of a crime, we can act on your behalf for ENA or END to be released to a individual prosecuted in a case where you have the position of victim. If the fishy is abroad, but in the EU, his arrest and transfer to the Polish services may velocity up the proceedings and, if necessary, the EIO may be effective if a large amount of evidence is not available in Poland. All of this, however, depends on the situation in the case and its condition. However, KKZ lawyers can cooperate with law enforcement as your attorneys to guarantee that evidence and suspects from abroad are effectively imported.
Author: Mr Paweł Gołębiewski, Head of global Crime Practice and abroad client Service
Email:[email protected]
Tel.: +48 22 501 56 10
