8 What criticisms have been made of the European Arrest Warrant? The EAW does not explicitly permit refusals to extradite even when the country receiving the EAW believes that its use is disproportionate or the surrender could result in human rights violations. The system is based on the flawed assumption that a Member State can have complete faith that the EAW will only ever be used in appropriate cases and that, once extradited to any other Member State, a person’s human rights will be respected. Because this is not true, the emphasis on efficiency in the EAW system has come at the expense of human rights. And because the system is so efficient it is being used even when it is not meant to be, for example, early in the proceedings to interview someone before a decision to prosecute the person has even been made. The following major human rights problems with the EAW have been highlighted by Fair Trials and others: • EAWs issued for minor offences and without proper consideration of whether extradition is proportionate, notwithstanding the severe human and financial costs involved; • People being extradited despite serious and well-founded human rights concerns, such as clear risks of violations of the right to liberty caused by the overuse of pre-trial detention, the right to be free from torture and ill-treatment caused by poor prison conditions across the EU, and the right to a fair trial; • Judicial decisions not to execute an EAW not being respected by the issuing State, resulting in repeated arrests and hearings in other countries; and • People sought under EAWs not being provided with legal representation in the issuing State as well as the executing State. These concerns, and others, were reflected in the European Parliament’s 2014 resolution. A 2016 study by the Council of Bars and Law Societies of Europe (“CCBE”) concluded that by-and-large they were still valid, as did a 2017 study by the European Parliamentary Research Service (“EPRS”), and a 2018 report by the European Criminal Bar Association (“ECBA”). Finished in 2018, the Beyond Surrender project has reinforced those findings. Putting human rights at the heart of the EAW Key Finding No. 1: The EAW continues to be overused and is destroying the lives of ordinary people in the process Our research has found that the EAW continues to be used to investigate people and prosecute petty crimes. People continue to be surrendered to face stiff penalties for conduct that would not be punished nearly as harshly in the country they are present in and without regard to the impact that the surrender will have on the person’s livelihood, family and mental or physical health. These cases contrast significantly with the stated purpose of the EAW system, which was designed primarily to fight serious, complex cross-border crimes. In addition, our research shows that EAWs continue to be used to investigate people (contrary to the aims of the EAW) despite the fact that the EU has long had rules that would ease cross-border evidence gathering in criminal cases. In 2009, the EU enacted legislation to create a European Evidence Warrant to make it easier to collect and share evidence across borders, working on much the same principles as the EAW. In 2014, this was strengthened with legislation creating a European Investigation Order (“EIO”) which grants new powers to judges and prosecutors to seek evidence across borders, including encouraging the use of videoconferencing technology to interview people during criminal investigations. But these measures are underused compared to the EAW and we continue to see requests to extradite people for police interviews in situations where a case is far from being ready for trial. During our research, we documented cases where families have been split apart for lengthy periods with suspects unnecessarily held in pre-trial detention outside of their countries of residence. We have also documented cases where people were surrendered, interviewed and immediately released without being provided the resources necessary to make their way home.