A Portuguese spy gone rogue selling NATO and EU secrets to his Russian-handler all over Europe. It seemed like the perfect spy novel. Until they got caught.
In 2016, a member of the Portuguese SIS intelligence service (Mr. C.) flew to Rome for a meeting with his Russian contact (Mr. P.). What they didn’t know was that the SIS counter-espionage unit was secretly on to them and had issued an EAW. Seemingly, they got caught red-handed in a bar in Rome: the Portuguese agent was giving his Russian counterpart a USB pen-drive loaded with classified documents in exchange for €10,000 and a bottle of whisky.
As if it weren’t serious enough, Mr. P., suspected of being a senior member of Russia’s Foreign Intelligence Service, had travelled to Italy without previously obtaining diplomatic immunity — a basic error of tradecraft. Indeed, as the Court of Cassation held in judgment no. 40760 of 23 June 2016, mere possession of a diplomatic passport is not in itself sufficient to grant its holder diplomatic immunity. And Mr. P. had terminated his posting as First Secretary at the Russian Embassy in Rome since 2009. Thus, he enjoyed no diplomatic immunity at the time of his arrest.
Eventually, the Portuguese EAW was refused on formal grounds (i.e. it did not contain sufficient information).
However, the case is interesting insofar as Mr. P. raised a fascinating point: formally, his surrender was sought for the purposes of questioning him in order to further the investigation, with no decision having been taken whether to charge or prosecute him. According to Mr. P.’s defense, the EAW should be issued for only the “purposes of conducting a criminal prosecution” (Article 1 of Framework Decision 2002/584), not merely for questioning a suspect.
This argument was summarily dismissed by the Italian Supreme Court, which has long taken the stance that EAW proceedings may be activated on the basis of “any coercive order issued by the judicial authority of the requesting State, irrespective of the reasons, provided that it is inherent to the criminal proceeding” (see, among other authorities, Court of Cassation, judgment no. 5151 of 18 December 2013 and no. 45043 of 20 December 2010). This position has been reiterated in a recent judgment (no. 10251 of 1 March 2018), where the Supreme Court clarified that the reasons underlying the issuance of an EAW fall outside the scope of review of the requested State.
Strictly speaking, this stance raises serious concerns as to its compatibility with the Framework Decision 2002/584.
It is not a coincidence that, in Asztaslos, the England and Wales High Court significantly stated that “if an EAW has been issued by a requesting State as an ‘accusation case’ warrant, but its purpose is, in fact, the surrender of the requested person for the purpose of conducting an investigation to see whether that person should be prosecuted, it is not a legitimate purpose and so the warrant is not an EAW”. In other words, as later clarified in Assange, unless it has been established that a case moved from suspicion to accusation, an EAW should be refused if surrender is sought merely for questioning a suspect.
Often, when confronted with investigative needs, prosecutors immediately reach for the quick-fire EAW, rather than trying to use other legitimate means of investigation. In our view, a more proportionate approach would be desirable. The EAW is a key weapon in the fight against serious cross-border crime. It should not, however, be the measure of first resort. When a case has not yet crossed the boundary from investigation into prosecution, the proper, proportionate and legal means of requesting a person’s questioning is through mutual legal assistance (e.g. the arrangements envisaged in the EU Convention on MLA in Criminal Matters of 2000 and its additional Protocol of 2001).