EAW AWARE: Training judges, public prosecutors and lawyers in alternatives to the EAW is key to proportionate use

The EAW AWARE project was designed in 2019 around a seminar series, to incorporate different perspectives of European practitioner experience and more effectively address known challenges of EAW implementation and policy: decision-making information, use of existing provisions in national law, and informal judicial cooperation. Our focus was on prison conditions in the application of the EAW, since in key issues such as overcrowding, or sanitary conditions the ECtHR has often found violations of Article 3. Aggravating factors – such as access to natural light, heating and ventilation – lead to further dispute, as do compensating factors such as out of cell time and activities.

Indeed, in the first of our three seminars, in October 2019 in Bremen, we brought together 28 European judges, public prosecutors, lawyers and academics to discuss issues concerning the precise scope and content of relevant duties and factors on the part of the executing Member States’ courts. Through presentations and discussions, practical solutions for the future were informally worked through, such as enhanced databases, the facilitation of closer co-operation between judicial authorities of the issuing and executing the Member States. Specialist lawyers presented the perspective of suspects and legal practitioners on extradition proceedings, with a focus on possibilities for avoiding detention.

However, this project’s unique perspective was provided by on-site visits to detention facilities during each 3-day seminar. In Bremen, participants made on-site visits to both Bremen Prison and Bremen Secure Treatment Unit of the Psychiatric Treatment Centre. Judges, prosecutors and lawyers heard first-hand accounts from prison and probation staff, and the visits fuelled the discussion that detention conditions are nuanced, contextual and complex, and cannot be understood as either an “east vs. west” issue nor as the fault of ‘unwilling regimes’. Instead, improved conditions depend on investment in Europe’s justice systems, and the capacity for renovation. How we invest in our systems and the staff who work in them must often change to accommodate emerging factors such as new prisoner demographics. And all these dynamic factors must be addressed within the uniquely challenging requirements of secure environments.

These onsite visits ultimately led to a better understanding of the human rights relevance of detention conditions, with a particular emphasis on the need for open communication between the relevant authorities ‒ in the European spirit of mutual trust and cooperation. Indeed, 75% of the Bremen Seminar participants had never visited a prison outside of their own country before. More than half had never visited a secure treatment facility in their own country and 92% of participants had never visited this kind of facility outside of their own country before.

Spending time on-site, discussions became more open, and 87% of participants said visiting facilities had a greater impact than learning about detention conditions in other ways. There was greater recognition that detention – particularly in a foreign environment – is a harsh consequence on the lives of the people concerned. EAWs are an effective legal tool, which uproots people from their families and lives, deporting them to a country where they may not speak the language or have any support, reducing their chances of finding accommodation and work on release and perhaps even – one presenter suggested – reducing trust in European rights and freedoms.

Unfortunately, due to the pandemic, we were only able to meet in person once during this two-year project. Whilst we continued the EAW AWARE seminar series online with excellent presenters – including visual material from a range of European prisons – we lacked the breakthrough moments these on-site visits had provoked. Nonetheless, a new bond had been created between participants, and open discussions continued on less restrictive alternative cross border criminal justice mechanisms have been adopted by the EU, including:

• European Supervision Order (ESO), which allows a judicial authority to impose pre-trial supervision measures, such as an electronic bracelet, on a person residing in another;
• European Investigation Order (EIO), which allows investigating authorities to gather evidence across borders such as testimonies via video link without having to request that persons be arrested and physically transferred;
• European Probation Order (‘EPO’) regarding the recognition and supervision of suspended sentences, alternative sanctions and conditional sentences and
• Framework decision 2008/909/JHA on transfer of prisoners. In fact, had it not been for restricted travel, EAW AWARE judges and prosecutors had planned to participate in the PONT training developed for competent authorities on Framework Decisions 947/2008 and 829/2009 https://probationobservatory.eu/resources/

The EAW AWARE Project was a learning network: By bringing users of the EAW tool together with such a diverse, practical agenda, these online seminars continued to support mutual trust and recognition of decisions between neighbouring European judiciaries and to promote consistent use of European bodies. These discussions between practitioners generated significant insightful and useful case studies, precedence and problem-solving. This content was transferred for wider circulation into three ‘e-zines’, one on the results of each seminar, freely downloadable from the eawaware.eu project website. In addition to this narrative material, project outcomes were used to build an EAW Procedural Assessment Tool. This is a basic instrument but widely referenced, and designed to facilitate judicial decision making in extradition cases. Since pandemic restrictions made travel impossible, at the end of the project the partnership channelled our efforts instead into an e-learning course which makes condensed, theoretical material from the project available in English, German, Portuguese and Romanian. Finally, the need for more training in alternatives to detention is one of three central messages in the EAW AWARE White Paper on EAW and Detention Conditions, which you can access via the website: www.eawaware.eu

The EAW AWARE project was funded by the European Commission Justice Programme and led by Bremen Ministry of Justice and Constitution and Bremen Higher Regional Court of Appeal (Germany), with the support of partners Superior Council of Magistracy (SCM) (Romania), IPS (Portugal) and Antigone (Italy), and guided by an Advisory Committee of Loyola University (Spain) and the National School of Judiciary and Public Prosecution (KSSIP) (Poland). The network remains active online, and anyone interested in furthering this exchange is warmly encouraged to join the discussion on LinkedIn via the group European Arrest Warrant AWARE: https://www.linkedin.com/groups/8768048/ or to get in touch with EAW AWARE Project Coordinator, Rhianon Williams (rhianon.williams@justiz.bremen.de).

– Rhianon Williams