The European Union Criminal Law is now developing rapidly, but apparently the development of the rights of the suspect goes at a far more modest pace. This is partly due to uncertainties regarding the distribution of the responsibility between the member states, which here is exemplified by the suspects right to damages for being surrendered on an European Arrest Warrant followed by acquittal or pre-trial termination of the criminal case.
By Henning Fuglsang Sørensen
A man enters the Schengen Area, but is immediately arrested because a European Arrest Warrant (EAW) with his name has been issued by another member state. He is however released already the next day, as the issuing member state has apologized to the arresting member state for having forgotten to withdraw the EAW since it is no longer valid.
Most member states have legislation, which ensures the citizen compensation for depreciation of freedom during criminal proceedings. This legislation has typically been introduced as a response to the powers given to the police when criminal offenses are investigated. These powers will occasionally (and perhaps unavoidably) affect innocent citizens, but it is then for the society as a whole to bear the costs for the time spent in custody and the economic loss that may follow through proper legislation on liability for criminal investigations.
The man, who was arrested, claims therefore damages from the member state that arrested him. This member state refuses however to pay damages as it considers the issuing state as the one to bear the responsibility since the arresting member state was bound by the EAW even though it later turned out to be non-valid. The man must therefore pack his suitcases and travel to the issuing state if he wants to proceed with his claim.
This will most likely not happen. The procedural costs, the procedural risks, language problems and problems of understanding the legal system of another member state will often exceed the amount of the financial compensation that may be achieved, and the member states will therefore to a certain degree be able to avoid liability for having wrongfully issued an EAW simply because the citizen gives up before the case is started.
Prima facie these types of situations seem in contradiction with the European Union’s proclaimed Area of Freedom, Security and Justice. The above-described circumstances give rise to highly prominent questions: What happens to Justice in cases where the member states deprive innocent citizens from their Freedom? Will the citizen in question consider himself as living in an Area of Freedom, Security and Justice when member states escape liability for arrests based on the EAW compared to if the arrest was a part of a national criminal investigation by simply keeping the procedural costs at a level above the compensation?
Most likely not.
A regulation seems to be needed. In this respect, three different models could be applicable for the establishment of a regulation.
The first model, which has similarities with the Schengen-Convention and Art. 1 European Convention of Human Rights, provides the citizen with damages based on the legislation of the member state where he is arrested. However, this model forces the citizen to split his claim in two, claiming damages from the surrendering member state for the time from his arrest to his surrender and then from the requesting member state for the time from the surrender to his arrest. This fits very poorly with our normal understanding of how to provide innocent citizens with adequate compensation for being exposed to the powers of the law enforcement authorities as this will force the citizen to run two parallel damage cases for the same arrest. This model is therefore not satisfactory.
The second model, which has similarities with the general view that the one who starts the trouble is responsible for paying the damages, provides the citizen with damages based on the legislation of the member state that initiated the criminal investigations. However, it is far from always so that the criminal case goes to court in the member state that initiated the criminal investigations. It then seems strange when one member state (the prosecuting member state) is held reliable for the actions of another member state (the investigating member state). But even worse, this forces the innocent citizen to use the courts of another member state (the prosecuting member state) for the damages case as he most likely will be prosecuted in another member state than his home state. He will therefore face problems with procedural law, language etc., which in turn resembles the previous model of difficulties for the citizen and does not correspond how we in general perceive the protection of the innocent citizen. The model is thus also not satisfactory.
The third model, which has similarities with the legislation on damages for victims of crimes, suggests that the citizen should be able to claim damages from the member state where he lives. This relieves him for the problems of language, procedural law and so forth, but forces the burden of understanding the criminal procedural code of another member state on the authorities in the citizen residential member state. This will also force a strict liability on the member state, where the citizen lives, for the actions of the prosecuting member state, and will therefore imply procedural costs on the member state where the citizen resides. As this member state might not even know about the criminal case against the citizen, this model seems harsh on the member state of residence, and has therefore also its shortcomings.
The question of damages is however just a derivate of the basic question: Has the desire for providing law enforcement authorities with efficient tools to combat cross border crimes gone to an extent where the fundamental rights of the citizen is endangered? Has the legislator forgotten that providing the authorities with these powers calls for a proper protection of the citizens from being subjected to these powers beyond what is absolutely necessary for the criminal investigation? And will the citizen be properly compensated if the criminal case ends with acquittal or is stopped pre-trial? These questions are currently being investigated in the light of The European Union accession to the European Convention on Human Rights as part of my Ph.D. project at Aarhus University, Denmark.
 The example is taken from German case law: Oberlandesgericht Köln, 6 Ausl 53/05 – 24/05 –