The introduction of the European arrest warrant
Standard Note: SN/HA/1703
Last updated: 23 February 2009
Author:
Sally Broadbridge
Home Affairs Section
This note outlines how proposals for a simplified backing of warrants system to replace
existing extradition arrangements between the UK and other EU Member States progressed in
Europe and Westminster, culminating in a European Framework Decision and provisions in
the Extradition Act 2003. It draws attention to some of the UK concerns which were
expressed. Other standard notes in this series describe extradition generally, 1 the European
arrest warrant in practice, 2 the UK/US Extradition Treaty, 3 and the case of Abu Hamza. 4
Contents
Overview
3
B.
1.
What was agreed
3
2.
UK Commitment
5
3.
UK implementation
5
Progress of the proposal in Europe and Westminster
1.
2.
C.
D.
1
2
3
4
European Union
6
6
a.
Justice and Home Affairs Council.
6
b.
The European Parliament
7
c.
Agreement
7
Progress at Westminster
UK concerns
8
9
1.
Select Committee on European Union
2.
European Scrutiny Committee
11
3.
The media
12
4.
Parliamentary Questions relating to the European Arrest Warrant
14
5.
Lord Lamont
18
6.
Justice
19
Implementation across Europe
9
19
SN/HA/4168
SN/HA/4980
SN/HA/2204
SN/HA/2895
Standard Notes are compiled for the benefit of Members of Parliament and their personal staff. Authors are
available to discuss the contents of these papers with Members and their staff but cannot advise others.
2
Overview
Review of the complex UK extradition law had been on the agenda for a number of years. In
March 2001, the Home Office published a consultation paper, The Law of Extradition: A
Review, proposing a simplified, four-tier system. Tier One would be a backing of warrants
scheme for extradition requests from EU and Schengen Member States, so that a simple
arrest warrant would replace extradition requests and would be transmitted to the court via
the Home Office.
Negotiations towards a European arrest warrant had begun well before but accelerated
following the events of 11 September 2001. A draft framework decision agreed in principle
by the Justice and Home Affairs Council of the EU was approved by the UK Parliament in
December 2001 and by the European Parliament in February 2002. UK implementation was
achieved by the Extradition Act 2003, the relevant parts of which came into force in January
2004.
1.
What was agreed
The arrest warrant applies to all offences. In practice, the judiciary of each member
state will be able to issue a European arrest warrant when a person is being
prosecuted for an offence punishable by a custodial sentence of over a year or when a
person has been sentenced to a custodial or detention order exceeding four months.
When an arrest is carried out on the basis of a European arrest warrant in a member
state, the person will be handed over by the judiciary of the state where the arrest has
taken place pending minimum control over a maximum period of three months.
For a list of 32 serious offences - punishable by deprivation of liberty of at least 3
years - the surrender of the person does not require the verification of the double
criminality of the act. Dual discrimination requires that the facts which motivated
issuing an arrest warrant are also incriminated in the member state where the
surrender is to be carried out.
Examples of serious offences subject to European arrest warrant: participation in a
criminal organisation, terrorism, trafficking in human beings, sexual exploitation of
children and child pornography, illicit trafficking in arms, ammunition and
explosives, corruption, fraud including fraud pertaining to the financial interest of the
European Union, recycling the benefits of crime, counterfeiting of money including
the Euro 5 .
The effect of the double (or dual) criminality rule, (which is generally observed in current
extradition arrangements between states) is that states may refuse to extradite fugitives for
conduct which would not be criminal if it took place within their own jurisdictions. The
conduct must be criminal in both the requested and the requesting state. This ensures that a
5
Extradition will no longer be necessary between EU member states: Laeken European Council Justice and
Home Affairs: Press release 15 December 2001
3
person’s liberty is not restricted as a consequence of conduct not recognised as criminal by
the requested state, and a state is not required to extradite categories of offenders for which it,
in return, would never have occasion to request extradition. The 32 offences for which dual
criminality will not have to be shown are:
• Participation in a criminal organisation
• Terrorism
• Trafficking in human beings
• Sexual exploitation of children and child pornography
• Illicit trafficking in narcotic drugs and pyschotropic substances
• Illegal trafficking in weapons, munitions and explosives
• Corruption
• Fraud, including that affecting the financial interests of the European Communities within
the meaning of the Convention of 26 July 1995 on the protection of the European
Communities’ financial interests
• Laundering of the proceeds of crime
• Counterfeiting of the euro
• Computer-related crime
• Environmental crime, including illicit trafficking in endangered animal species and in
endangered plant species and varieties
• Facilitation of unauthorised entry and residence
• Murder, grievous bodily injury
• Illicit trade in human organs and tissue
• Kidnapping, illegal restraint and hostage taking
• Racism and xenophobia
• Organised or armed robbery
• Illicit trafficking in cultural goods, including antiques and works of art
• Swindling
• Racketeering and extortion
• Counterfeiting and product piracy
• Forgery of administrative documents and trafficking therein
• Forgery of means of payment
• Illicit trafficking in hormonal substances and other growth promoters
• Illicit trafficking in nuclear or radioactive materials
• Motor vehicle crime
• Rape
• Arson
• Crimes within the jurisdiction of the International Criminal Tribunal
• Unlawful seizure of aircraft/ships
• Sabotage
4
2.
UK Commitment
On 14 February 2002, the Home Secretary and Justice Ministers from Spain, Portugal,
France, Belgium and Luxembourg made a declaration of commitment to early
implementation:
The Declaration will ensure that as soon as the Warrant has been passed into national
law, these countries will use the Arrest Warrant to extradite suspects. The aim is to
have this legislation underway in the UK by Spring 2003 6 .
The European Arrest Warrant will speed up extradition within the EU but it will also
be a very different system from the current system since there will be a minimal role
for Ministers. The process will be that a judicial authority in another EU Member
State will issue the Warrant which will be transmitted to an appropriate judicial
authority in this country. The fugitive will be arrested (by the UK police) and either
remanded in custody or granted bail. There will then be an extradition hearing before
a District Judge with the fugitive having a right of appeal. to the High Court. If the
Courts agree to execute the warrant, the fugitive will be surrendered to the executing
state. All of this will happen within 90 days 7 .
Subsequent press reports suggested that the aim might not be met:
The Home Secretary has had to break a promise he made to Europe only a fortnight
ago after shelving plans for new extradition legislation.
The warrant - under which EU citizens can be arrested and returned for trial anywhere
in the Union for 32 crimes ranging from terrorism to "xenophobia" - was to be
included in an Extradition Bill. But ministers announced this week that this has been
postponed until the next session of parliament because too much legislation has piled
up at Westminster.
Even if the Bill were introduced at the earliest point of the next session beginning in
November, it is unlikely to become law before the summer of 2003.
A Home Office spokesman said Mr Blunkett was unaware at the time that the Bill
would have to be dropped from this session's timetable. 8
3.
UK implementation
As introduced, the Anti-terrorism, Crime and Security Bill would have provided a power
under which the European arrest warrant could have been introduced by secondary
legislation. However, that power was removed during the passage of the Bill, and the new
provisions became Part I of the Extradition Act 2003. The Home Office produced a guide for
extradition practitioners, in draft for consultation.
6
7
8
Blunkett committed to early implementation of European arrest warrant: Home Office news release 14 Feb
2002
notes for editors
Blunkett breaks EU promise: Daily Telegraph 2 March 2002
5
B.
Progress of the proposal in Europe and Westminster
1.
European Union
a.
Justice and Home Affairs Council.
A Proposal for a Council Framework Decision on the European arrest warrant and the
surrender procedures between Member States was issued originally on 19 September 2001 9 .
The first revised version was issued on 27 September 10 , and later versions were sent out on 31
October 11 and 1 December 2001 12 . The Justice, Home Affairs and Civil Protection Council
met on 16 November and discussed amendments to the proposal.
The Council continued its discussions on the proposed Framework Decision
concerning a European arrest warrant, focussing on the key issues still unresolved,
namely the scope of the European arrest warrant and the judicial appeals process.
[-]
Regarding the scope of the arrest warrant, a very broad consensus emerged during the
Ministers' deliberations – with continuing reservations at this stage from two
delegations, spelt out in the discussion 1 - on the list of offences giving rise to
surrender of persons sought on the basis of a European arrest warrant under the terms
to be defined in the Framework Decision (providing inter alia for surrender without
verification of double criminality). This arrangement would apply to thirty different
offences, the large majority of which feature in the Annex to the EUROPOL
Convention.
The Council will continue also to examine one delegation's suggestion that a
benchmark for sentencing (proposal: four years) be incorporated in the arrangement
to facilitate surrender without verification of double criminality for listed offences not
yet harmonised. Regarding the appeals process, the Council noted broad consensus on
the different execution of time limits applicable with regard to surrender, namely:
- in cases where the person sought consents to his surrender, the final
decision on the execution of the European arrest warrant should be taken 10
days after consent has been given;
- in other cases, the final decision on the execution of the European arrest
warrant should be taken within a period of 60 days after the arrest of the
person sought;
- in specific cases where the arrest warrant cannot be executed within the
time limits laid down in the above paragraphs, the executing judicial
authority shall immediately inform the issuing judicial authority, stating the
reasons for non-execution within the time limits. In this case, the time limits
can be extended for another 30 days. Moreover, the project provides for the
possibility for the authorities of the issuing State to obtain, on arrest of the
9
10
11
EC Document 12102/2001 -COM(2001)522
EC Document 12102/1/2001
EC Document 13425/2001
6
person sought, the possibility either of hearing his testimony in the State of
execution or of obtaining his temporary transfer. Two delegations expressed
scrutiny reservations on this point.
On 6 December the Council examined a draft Framework Decision on the European arrest
warrant and the surrender procedures between Member States, on the basis of a Presidency
overall compromise proposal.
Following that examination, the Presidency was able to record the agreement of 14
delegations on its compromise. One delegation was unable to support the proposal.
The main features of the compromise are as follows:
• The arrest warrant is broad in scope. In particular, it gives rise to surrender in
respect of 32 listed offences (see list in the Annex, p. 19), without verification of the
double criminality of the act and provided that the offences are punishable in the
issuing Member State by a custodial sentence of a maximum of at least 3 years.
• A territoriality clause making it optional to execute an arrest warrant in respect of
offences committed in the executing State or acts which took place in a third State but
which are not recognised as offences by the executing State.
• A retroactivity clause making it possible for a Member State to process requests
submitted prior to the adoption of the Framework Decision under existing instruments
relating to extradition.
b.
The European Parliament
The European Parliament Committee on Citizens' Freedoms and Rights, Justice & Home
Affairs produced a report on 14 November 2001 and the European Parliament debated the
proposal on 29 November 2001. A second report was tabled on 8 January 2002. The draft
was approved in plenary session of the European Parliament on 6 February 2002. Proposed
amendments, including one seeking to insert a European Habeas Corpus clause, were
rejected. The Parliament called on the Council to notify Parliament should it intend to depart
from the text approved by Parliament and asked to be consulted again if the Council intended
to amend its draft substantially.
c.
Agreement
The Council agreed the framework decision without debate on 13 June 2002. 13 Some Member
States made statements on the adoption of the framework decision. France, Italy and Austria
made statements to the effect that requests made relating to acts committed before particular
dates would continue to be dealt with in accordance with existing extradition systems.
Belgium, Denmark, Ireland, Finland and Sweden made statements to allow persons to revoke
their consent to surrender and/or express renunciation of the speciality rule.
12
EC Document 14867/1/2001
The full text of the framework decision is available electronically on the Europa website, including
the statements made by certain Member States on the adoption of the Framework Decision
13
7
2.
Progress at Westminster
The European Scrutiny Committee considered the proposal on 17 October, 14, 21 and 28
November and 12 December 2001 and 9 January 2002. Following consideration by European
Standing Committee B on 3 and 10 December 2001 the proposal was recommended for
debate on the Floor of the House. A motion to approve the proposal took place on 11
December 14 , which was agreed to by 333 votes to 146 in a deferred division on 12 December
2001 15 .
The Committees' Reports
Links to the three committees' reports are set out below:
Lords Select Committee on European Union Sixth Report 2001/02
European Scrutiny Committee: Eighth Report 2001/02 ,Tenth Report, Seventeenth
Report:
Proceedings of the European Standing Committee (B), 3 December 2001, 10 December
2001
The Extradition Bill 2002-03 was introduced in the House of Commons on 14 November
2002 and received Royal Assent on 20 November 2003. Part 1 introduces the European
Arrest Warrant, and came into force on 1 January 2004.
Library Research Paper 02/79 sets out detailed background to the Extradition Bill as
introduced. Many concerns expressed during the passage of the Bill included the
undesirability of incorporating the list of offences only by reference to the European
Framework Decision (the list is now set out on the face of the Act, in schedule 2) and the
need for the legislation to match the format of a Framework Decision to which the UK was
already bound. For example, Simon Hughes said:
Did the hon. Gentleman's [Home Affairs Select] Committee reflect on the very
unsatisfactory procedure in this area, whereby Members of Parliament can be asked
for their views on such proposals, but their views count for nothing? Ministers can
take decisions at a European level that are binding on the United Kingdom, without
the assent of the UK Parliament, or of either House, having been secured beforehand.
- to which Chris Mullin replied:
Indeed, we were not entirely happy with that. There has been a degree of
parliamentary assent to this matter, but not the degree that most of us would like.
Lord Kingsland commented:
Your Lordships' House is about to embark on detailed scrutiny of the Government's
proposals—rightly so. The trouble is that your Lordships are undertaking the task at
14
15
HC Deb 11 December 2001 c811
HC Deb 12 December 2001 c978-82.
8
the wrong time: it should have been undertaken before the framework decision was
made. There is no reason why that should not have been so. 16
C.
UK concerns
1.
Select Committee on European Union
The Lords Select Committee on European Union (subcommittee A) expressed reservations
in a letter dated 12 November 2001 from the Lord Brabazon of Tara to Mr Bob Ainsworth,
MP, Parliamentary Under Secretary of State, Home Office:
As you explained at the meeting there have, following discussion in the Council
Working Group, been substantial changes to the proposal, notably the introduction of
a "positive list" of named offences to which the new procedure would apply. As
regards those offences the principle of dual criminality would not apply. We note that
the latest text (the Presidency text - Doc 13425/01) indicates that Member States are
divided on whether a positive list is a better approach and records that the UK is
against the list in principle (you explained that the Government now considers the
positive list to be "a very real step forward"). The positive list would go some way
towards mitigating the effect of the loss of the dual criminality rule because it would
only contain offences recognised as such in all Member States. We await a translation
of the list, but a glance at the French text raises questions as to whether there are EU
definitions and/or common understanding of the meaning and content of all the
offences listed; for example, "racism and xenophobia". It would also be helpful to
have an explanation of the purpose and effect of the words, telles qu'elles sont
definies par le droit de l'Etat d'emission, added to the new Article 2(2) apparently at
the request of the UK.
Our understanding is that the positive list would provide some control over the scope
of the warrant, provided that the offences listed in Article 2(2) are sufficiently clearly
defined at EU level or otherwise readily identifiable and generally accepted. While
the positive list does not restrict the scope of application of the new regime it is
complemented by the ability of Member States to maintain the principle of dual
criminality in respect of offences which are not in the list and where some of the
conduct takes place in the executing State (Article 2(3)). A further safeguard is
provided by Article 2(4) which permits the executing state to apply dual criminality
in relation to offences concerning abortion, euthanasia, 'morals and sexuality' and
freedom of expression and association. As the discussion at our meeting revealed, the
Committee is particularly concerned to ensure that any removal or diminution of the
dual criminality rule is justifiable and that alternate safeguards, where necessary, are
adequate. We await the English text and a fuller explanation.
The speciality rule
16
HL Deb, 1 May 2003, c881
9
The Committee notes that grounds for refusing execution (formerly contained in
Articles 27 to 34) do not contain any protection akin to the rule of speciality, which is
an important safeguard against the abuse or circumvention of other protective
principles and procedures. I regret to say that we found the Government's evidence
confusing as to what extent and when exactly the speciality rule would survive. The
Decision provides (Article 22(1), formerly Article 41) that the arrested person may be
tried, convicted and imprisoned for offences other than those for which he was
extradited. The only remnant of speciality rule appears in Article 2 (3) and (4)
(offences not on the positive list and offences relating to abortion, euthanasia, 'morals
and sexuality' and freedom of expression and association). In these cases, any
proceedings for other offences will require the consent of the competent authority of
the executing State. This is a significant but limited protection for the individual. It
would be useful if you would provide clarification of when the speciality rule would
remain applicable. The Committee would need to be persuaded that the new
procedure generally contains sufficient safeguards to justify abandoning the
protection given by the speciality rule.
Bail
You will recall that at our meeting we raised with you the question of the availability
of bail for the individual who is the subject of the warrant. Article 14.1 bis of the
Commission's text appeared to contemplate a presumption in favour of ordering
detention, with release on bail being allowed only if the detainee can show that there
is reason to believe that the conditions set out in that paragraph are met. This
approach carries a risk that the reversal of the burden might be found to be
incompatible with Article 5 ECHR. We asked whether the Decision should be
amended to include a presumption in favour of bail. You said that the question of bail
was to be dealt with in the new Article 12, which would refer back to national law. In
your letter of 6 November to Jimmy Hood you say that there should be no
presumption either way. We would be grateful if you could clarify whether that is
consistent with the approach of the Bail Act 1976. Our interest is not, however,
limited to the availability of bail in UK proceedings. A UK citizen, or indeed an EU
citizen or third country national, may be the subject of a warrant in another Member
State. He or she is equally deserving of protection. In our view, there is a strong
argument that the Decision should contain a presumption in favour of bail.
Rights of appeal
The new procedure would be subject to a strict timetable. The new text imposes an
even tighter regime than the Commission's original proposal. Under the presidency
text, the maximum time within which a warrant is to be executed has been reduced
from 90 days to 30. What is the effect of an appeal to the courts? Would the Decision
block an application for habeas corpus? It seems that this might be the case if (new)
Article 17(4) is accepted - under this provision, notwithstanding an appeal was taking
place in the executing State, a person would have to be sent to the requesting State
whose responsibility it would be to return him or her if the appeal was successful 17 .
17
The letter is annexed to the Sixth Report of the Select Committee (12 November 2001).
10
2.
European Scrutiny Committee
In its Seventeenth Report, the European Scrutiny Committee expressed its continuing
concerns on what they anticipated must be the "near-final" form of the framework decision,
under the following headings:
•
•
•
•
•
Definition of 'judicial authority'
European Convention on Human Rights
Dual criminality and the absence of definition of offences
Absence of any guarantee of retrial for a person convicted in absentia
The processes of the Council
They concluded: We think it regrettable that the term 'judicial authority' is not defined, given its central
importance to the scheme of mutual recognition and enforcement established by the
Framework Decision. However, we welcome the Minister's acceptance of the
principle that a warrant which is not a 'court decision' within the meaning of Article 1
will not be recognised in this country 18 .
We consider that the text in paragraph 12 of the preamble and the provisions of
Article 1(3) are unsatisfactory alternatives to a clear reference in the body of the
Framework Decision to the requirements of the European Convention on Human
Rights. We agree with the House of Lords Select Committee on the European Union
that the right of the executing authority to refuse to surrender a person on ECHR
grounds should be expressly stated in the body of the Decision[10]. We note that
recent draft proposals for Framework Decisions[11] have contained an express
provision to the effect that they are without prejudice to the ECHR and we
recommend that the UK press for the inclusion of such provisions as a matter of
course 19 .
We consider that the safeguard of dual criminality has been too lightly discarded, and
that the listing of offences by description in Article 2(2) will give rise to practical
difficulties which have not been fully thought through. On the other hand, we do not
consider that these difficulties are such as to make it necessary to embark on a
harmonisation at EU level of all the offences listed in Article 2(2) 20 .
We consider it very unsatisfactory that such a significant change in the proposal [JHA
Council redraft of 6-7 December no longer contained an explicit reference to a retrial
if a person is absent from an original trial] should be made at such a late stage within
the Council and with the Minister being unable to explain how it came about. This is
a further example of the lack of transparency in the way in which the Council deals
with instruments affecting individual liberties and is a major cause for concern.
18
19
20
para 7
para 12
para 20
11
Whilst we welcome the Minister's assurance that the Extradition Bill will make it
clear that a person tried in absentia will not be surrendered unless he is guaranteed a
retrial, we have some doubts as to whether this would be consistent with the
Framework Decision as adopted. As is apparent from the Minister's description of the
negotiating history, the Council had before it this option, but chose to reject it in
favour of the lesser guarantee of a right of appeal or to lodge an opposition 21 .
The presentation of radically changed texts in the last days of a Presidency, with calls
for their immediate adoption, does not appear to us to be an appropriate way of
determining changes at EU level to the criminal law. This is compounded by rules
which prevent public and open discussion of what takes place in the Council, so that
it becomes impossible for responsible Ministers to explain why particular changes
were made. The legislative process should be open and transparent and not one of
secret bargaining. We intend to return to this subject as part of our inquiry into
democracy and accountability in the EU and the role of national parliaments 22 .
3.
The media
There were adverse comments in the media throughout the progress of the proposal. William
Rees Mogg writing in the Sunday Times said:
The second pressure comes from the ambition of the European Union to harmonise
the criminal justice system. The European arrest warrant, with its automatic
extradition, is part of that process. It will mean that any British citizen may be
extradited on a warrant from a European judge, without any right to test the evidence
in a British court, on a charge that may not be a crime in the United Kingdom. We
must simply trust the European courts, many of which are far more political than
ours.
The 32 crimes for which such warrants can be issued will cover a wide variety of
business and government activities. For instance, the Irish believe that the operation
of Sellafield will damage the Irish environment. That is one of the new crimes. Under
the proposed warrant, an Irish judge could theoretically arrest anyone connected with
Sellafield, perhaps even up to the prime minister, and have that person extradited to
Ireland. 23
Melanie Phillips writing in the Daily Mail had other objections:
The warrant will mean that a European country such as, say, Spain can have a
British citizen arrested in Britain for making a xenophobic remark, removed from his
own country and, with no evidence ever having been presented, flung into a Spanish
jail to await trial for an activity which the British don't even recognise as a crime.
21
22
23
paras 28,29
para 32
“Cromwell's dilemma haunts our war against terrorism”, 30 December 2001, Sunday Times
12
..
Alas, the truth was rather less elevated. Italy wanted the list of crimes which might
trigger the EU arrest warrant drastically reduced from some 32 to six in order to
exclude financial offences. It was widely thought that Italian prime minister Silvio
Berlusconi feared he might be extradited to Spain where he has been named in fraud
inquiries.
[-]
Even worse, some crimes on the list, such as fraud, are interpreted differently from
country to country. In Britain, the crime of fraud entails an intention to defraud; in
other European countries, it can extend to careless error. So someone who had made a
genuine financial mistake could find himself extradited to a European country to be
tried as a criminal.
Worse still, people might be extradited for behaviour the British don't recognise as
crimes at all, such as xenophobia or racism. These are utterly subjective concepts, and
have even become ideological weapons. It is also oppressive and wrong for a country
to yield up someone for trial for behaviour it doesn't itself treat as a crime.
Worse still again, some leading lawyers believe that the warrant will allow extradition
for crimes committed in Britain. So the editor of the Sun, for example, might find
himself in a French or German jail for printing remarks about 'Frogs' or 'Huns'. . 24
Hugo Young put forward arguments for including a habeas corpus principle:
It would work quite simply, by stating as a condition of the warrant the right of the
court in the extraditing country to keep an eye on the fate of the suspect whose
freedom it is going to be required so easily to surrender. The authorities in the
receiving country would have to show cause why the suspect had not been brought to
trial after 110 days, and in cases of extreme abuse the suspect would have to be
returned. This might not happen often.
Plainly every member state would have to recognise a habeas corpus order, or the
law would be wrecked. But the mere acceptance of the habeas corpus principle would
have a salutary effect on judicial performance everywhere, and legitimise rather than
weaken this drastic new regime of cross-border arrests.
By the same token, if it isn't accepted, the Scots' 110-day rule and the English writ
of habeas corpus will be thrown out. So far, it has been the Scottish Nationalists
who've got on to this. Including the Greens, a 48-strong body of MEPs of all
nationalities is committed to an adventurous but elementary appropriation by Europe
of one of the glories of British liberty. It is surprising, to say the least, that other
British parties have yet to follow. Are they dumb, or blind, or just sucked into
24
“Goodbye habeas corpus. Hello Greek plane-spotter justice. How the ancient principles of British law are
being sacrificed on the altar of Europhilia”, 13 December 2001, Daily Mail
13
cowardly acquiescence in the rage for anti-terrorism measures even when these reach
far beyond anything remotely connected with al-Qaida? 25
and also criticised the breadth of the provisions; the warrant will be a mighty weapon. It is by no means confined to the terrorist
emergency that has given it life, but will apply to every crime carrying a sentence of
12 months or more, across the spectrum of offences and - as seen by several of the 15
members - far beyond. "Racism" and "xenophobia" are on the list, and so is
"swindling". Confronted with the vagueness, indeed the grotesquery, of these
categories, both Europhile ideologues and justice ministries dismiss with a lofty wave
the danger they present to anything resembling consensual justice.
Second, it is open to question whether there is a single judicial space that everyone
can agree on. Different countries have different rules of fairness. In Belgium, a
suspect paedophile is still being held on remand after more than five years. In Britain,
suspect terrorists can be held without trial for six months and then another six and
another. A German might object to that. Italy, Portugal and Spain supply pathetic
levels of legal aid and hence, in some cases, of practical justice. Ideally there might
be common rights to visits, and lawyers, and interpreters in foreign jails. Tell that to
British lorry drivers held without trial in France for months.
We would like to think, in other words, that the common standards all EU members
sign up to are real. They are by no means entirely unreal, as witness the unruly
independence the Greek courts showed towards British plane spotters before
Christmas. But a warrant issued in Austria cannot always be relied on to guarantee
the rights of the suspect against whom it is abruptly executed in Ireland.
4.
Parliamentary Questions relating to the European Arrest Warrant
16 January 2002: Dual Criminality 26
Mrs. Dunwoody: To ask the Secretary of State for the Home Department if he will
define the test of dual criminality.
Mr. Bob Ainsworth: The issue of dual criminality arises mainly in the context of
extradition. Under the Extradition Act 1989, dual criminality will ordinarily be
established where the fugitive's alleged conduct discloses an equivalent offence under
United Kingdom law which would be punishable in both countries with a prison
sentence of 12 months or more. For cases arising under schedule 1 to this Act where
the request is made under a bilateral treaty, the conduct must also be found on a list of
offences set out in the treaty. In the case of the backing of warrants scheme which
governs our extradition relations with the Republic of Ireland, the conduct must be
punishable in both countries with a prison sentence of six months or more.
25
26
“European justice demands the glory of British liberty: The EU-wide arrest warrant must be tempered by
habeas corpus”, 5 February 2002, The Guardian
HC Deb 16 January 2002 c352W
14
If the appropriate test for dual criminality is not satisfied, the extradition fugitive must
be discharged under existing legislation.
There is also a test for dual criminality in respect of a limited number of requests for
mutual legal assistance. This is where an incoming request involves the exercise of
search and seizure powers or the special investigation powers of the Serious Fraud
Squad in cases of serious or complex fraud. Again, if the crime alleged on the request
is not a crime in the United Kingdom, there is no dual criminality, and the request
cannot proceed.
18 January 2002: European arrest warrant 27
Mrs. Dunwoody: To ask the Secretary of State for the Home Department if he will
announce the date on which legislation to introduce extradition under the European
arrest warrant will be introduced.
Mr. Bob Ainsworth: We have made our commitment to an Extradition Bill clear and
measures will be brought before the House in the usual way.
Mr. Cash: To ask the Secretary of State for the Home Department what are the
criteria for determining the competent authorities in each of the EU member states as
to who are to be their issuing and executing judicial authorities in respect of Article 6
of the Council Framework Decision relating to the European arrest warrant.
Mr. Bob Ainsworth: The Framework Decision on the European arrest warrant and
the surrender procedures between member states stipulates at Article 1(1) that
"the European arrest warrant shall be a court decision."
At Article 6(1) it further stipulates that:
"The issuing judicial authority shall be the judicial authority of the issuing state which
is competent to issue an arrest warrant by virtue of the law of the issuing state";
and at Article 6(2) that:
"The executing judicial authority shall be the judicial authority of the executing state
which is competent by virtue of the law of the executing state".
By this the Framework Decision makes clear that the issuing and executing
authorities must be judicial authorities, but the criteria that the member states may
apply to determine which of their judicial authorities shall be responsible for the
issuing and execution of European arrest warrants are left to each member state to
decide upon. This is consistent with Article 34.2(b) of the Treaty on European Union,
under which the Framework Decision has been negotiated, which states that:
"Framework decisions shall be binding upon the member states as to the results to be
achieved but shall leave to the national authorities the choice of the form and
methods".
Mr. Cash: To ask the Secretary of State for the Home Department if he will list the
offences in English law to which Article 2(2) of the Council Framework Decision
relating to the European arrest warrant refers which are punishable under the law of
27
HC Deb 18 January 2002 c548W
15
an issuing member state by a sentence of three years and where dual criminality is not
required.
Mr. Bob Ainsworth: The list at Article 2(2) is not intended to be an exhaustive list of
all the serious criminal offences under the national law of all member states. To
answer this question in full would require listing all the offences in English law which
might fall under one of the generic headings of offences in Article 2(2) of the Council
Framework Decision on the European arrest warrant, and which are punishable by a
maximum sentence of at least three years, and cross-referring them to all the offences
in the penal codes of the other member states of the European Union (EU) which fall
under these headings which are punishable by this sentence. The generic headings
listed at Article 2(2) relate to conduct for which there are criminal sanctions in all the
member states of the EU, even if the legal definitions of the offences do not precisely
match. On any warrant, the offence for which surrender is sought will be framed by
the issuing judicial authority under its national law.
Examples of such offences in English law, to which there is a likely equivalent in the
law of other member states are: under the heading of "illicit trafficking in narcotic
drugs and psychotropic substances"--drug trafficking offences involving Class A or
Class B drugs; under the heading of "terrorism"--offences under the Explosive
Substances Act 1883 and offences under the Terrorism Act 2000 as amended by the
Anti-Terrorism, Crime and Security Act 2001; under the heading of "rape"--rape and
serious sexual offences; under the heading of "swindling"--offences under the Theft
Acts 1968 and 1978 that carry a sentence of at least three years; and under the
heading of "racism and xenophobia", offences relating to incitement to racial hatred,
racially aggravated offences and racial discrimination under the Race Relations Act,
where a sentence of at least three years applies.
29 January 2002: European arrest warrant 28
Mr. Cameron: To ask the Secretary of State for the Home Department whether the
EU arrest warrant will be included in the Extradition Bill; when he expects the Bill to
be published; whether the agreed text of the EU arrest warrant covers the offence of
xenophobia; whether a United Kingdom citizen could be arrested under the EU arrest
warrant for an alleged act which is not an offence under UK law; and whether the EU
arrest warrant can be used to arrest a United Kingdom subject in the United Kingdom
for an alleged offence committed from within the United Kingdom's boundaries.
Mr. Bob Ainsworth: The Government have made their commitment to an
Extradition Bill clear, and it will be brought before the House in the usual way; the
Bill will include provisions to implement the Framework Decision on the European
arrest warrant and the surrender procedures between member states.
The text of this Framework Decision, which was provisionally agreed at the Justice
and Home Affairs Council on 6 December 2001, includes in the list at Article 2(2) for
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HC Deb 29 January 2002 c291W
16
which the dual criminality test has been abolished, the generic heading of racism and
xenophobia.
In respect of any warrant, the offence for which surrender is sought will be framed by
the issuing judicial authority under its national law. The generic headings listed at
Article 2(2) relate to conduct for which there are criminal sanctions in all the member
states of the European Union (EU), although the definitions of the offences do not
match precisely. Where the issuing judicial authority includes an offence on the
warrant which does not fall under one of the headings at 2(2), the dual criminality test
may be applied by the executing judicial authority.
Article 4(7) of the Framework Decision provides that the executing judicial authority
may refuse to execute the European Arrest Warrant:
"Where the European arrest warrant envisages offences which:
(1) are regarded by the law of the executing member state as having been
committed in whole or in part in its territory or in a place treated as the
territory of that member state;
(2) have been committed outside the territory of the issuing member state and
the law of the executing member state does not allow prosecution for the
same offences when committed outside the territory of the executing member
state".
The Framework Decision, therefore, contains protection against the surrender of a
fugitive, of any nationality, from the United Kingdom for an alleged offence
committed in the United Kingdom which is not an offence under our law. The
Government's position will be finalised in the Extradition Bill.
Mr. Malins: To ask the Secretary of State for the Home Department if he will make a
statement on the agreement reached on the EU arrest warrant 29 .
Mr. Bob Ainsworth: At the meeting of the Justice and Home Affairs Council of the
European Union on 6–7 December 2001 all member states bar Italy reached
provisional agreement on the European arrest warrant; on 11 December, Italy
indicated that it too could accept the text. Agreement was subject to national
parliamentary scrutiny reservations entered or retained by five member states,
including the United Kingdom (the others were Netherlands, Sweden, Denmark and
Ireland). The European Parliament is being reconsulted on the European arrest
warrant, and the Council will need to consider its opinion, expected in February,
before the European Arrest Warrant can be adopted.
25 February 2002: European Arrest Warrant 30
29
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HC Deb 29 January 2002 c292W
HC Deb 25 February 2002 c900W
17
Mrs. Dunwoody: To ask the Secretary of State for the Home Department what
changes in the text of the European arrest warrant have been made since it was
debated in the House; and if he will place the new text in the Library.
Mr. Bob Ainsworth: On 10 December 2001 European Standing Committee B held a
debate on the basis of document 13425–01, COPEN 65, which at the time was the
latest available full English text of the Framework Decision on the European Arrest
Warrant. The current text, which reflects discussions at the Justice and Home Affairs
(JHA) Council on 6–7 December, is numbered 14867/1/01, COPEN 79 REV 1. This
version contains a number of changes. In addition to the revised wording of Article
5(1) concerning guarantees to be given for requests based on convictions in absentia,
the most significant changes concern scope (Article 2) and time limits (Article 17).
The current text and Explanatory Memorandum were deposited in Parliament by the
Home Office on 11 December 2001. As a matter of procedure copies of all deposited
texts are sent to the House of Commons library as well as to the Commons European
Scrutiny Committee. Version 14867/1/01, COPEN 79 REV 1 was considered by the
Committee and cleared from scrutiny on 12 December.
5.
Lord Lamont
Lord Lamont, co-chairman of the Bruges Group was a vociferous critic, in Parliament and
outside, of the European Arrest Warrant:
The objection to a European arrest warrant is a fundamental one. People on trial in a
foreign country are often treated unfairly. Many southern European countries such as
Spain and Greece provide little or no legal aid, and if they do, they only offer
inexperienced lawyers. In some countries bail is frequently refused to foreigners for
fear they will abscond. In fact, there are several hundred British citizens on remand in
Europe’s prisons many of whom would have been released on bail if they were
nationals of the country holding them. This type of discriminatory imprisonment
before trial results in punishment before guilt is proven, and handicaps the victim in
the collection of evidence for his defence. In addition, translation facilities for
foreigners are not always available, making judicial proceedings incomprehensible.
…
Perhaps the most powerful argument - from a British point of view - against the
European Arrest Warrant is the practice of investigating magistrates in France, Italy,
Germany Spain and Belgium of holding people in custody for questioning for long
periods of time. This serves to deliberately build up pressure on the detained person
to strike a bargain with the prosecutor and concede guilt. Dominique Strauss-Kahn,
the former French finance minister, recently said, “In our system you are presumed
innocent until declared guilty. The reality is you are seen as guilty from the moment
the judicial system is interested in you.” 31
31
http://www.brugesgroup.com/mediacentre/comment.live?article=175
18
6.
Justice
In November 2003, the human rights organisation Justice published European Arrest
Warrant: A solution ahead of its time? The introduction concludes:
The functioning of the EAW will be a litmus test for the whole principle of mutual
recognition in European judicial co-operation in criminal matters. Before it is even in
force, a number of practical problems are beginning to emerge at the implementation
stage, in particular in relation to the protection of individual rights and legal certainty
in the European judicial space. The way in which these problems are tackled will be a
test of the reality of respect for fundamental rights in the EU in the field of justice and
home affairs. This book seeks to highlight the problems inherent in the rapid
development of the principle of mutual recognition and to suggest ways in which
tehse problems can be addressed allowing for full protection of fundamental rights
within a fully functioning European area of freedom, security and justice. 32
D.
Implementation across Europe
The EAW is now in force between all EU member states. The first 15, which met the EU
deadline, were:
Belgium
Denmark
Finland
Ireland
Portugal
Spain
Sweden
UK
The other seven member states failed to meet the implementation deadline of 31 December
2003 laid down in Article 34(1) of the Framework Decision on the EAW. 33 An added
complication in Austria and Germany was that their constitutions had prohibited extradition
of own nationals. 34
The Federal Republic of Germany had been facing similar problems, because Article
16 Para. 2 of the German Constitution contained a comparable absolute prohibition of
the extradition of German nationals. When amending this provision, the German
Parliament solved the problem of the principle of non-extradition of own nationals
with regard to the cooperation with the international tribunals, and created at the same
time the basis for the implementation of the European Warrant of Arrest. While
emphasizing the general principle of non-extradition of own nationals, the amended
article admits the extradition of nationals “to a member state of the European Union
32
33
34
p11
France, Germany, Austria, The Netherlands, Italy, Greece, Luxemburg
http://www.statewatch.org/news/2003/jul/18wk.htm
19
or to an international court of justice as long as the rule of law is upheld”, if such
extradition is provided by law. 35
In 2005 the Commission evaluated the implementation of the Framework decision, finding
that as of 1 November 2004, all the Member States except Italy had transposed the
Framework Decision. 36 In a second evaluation report, the Commission evaluated the
measures - taken by what were then the 27 Member States - to transpose the Framework
Decision into national law up to 1 June 2007. All 27 had transposed the decision, but the
Commission found that there were some shortcomings:
The major difficulty resides in the different degrees of transposition of those articles
of the Framework Decision which deal with the optional and mandatory grounds for
non-execution. Article 3 of the Framework Decision provides for only three
mandatory grounds for non-execution, namely: amnesty, ne bis in idem (no one may
be prosecuted, sentenced or punished twice for the same offence) and the fact of the
wanted person being below the age of criminal responsibility. Article 4 lays down
only seven optional grounds for non-execution which Member States may or may not
transpose into their domestic law.
Some Member States are still reluctant to surrender their nationals and have
reintroduced the double criminality test, making such surrenders much more
complicated. In so doing, some Member States have limited the application of the
principle of mutual recognition. Other Member States have, moreover, stopped
surrendering their nationals while insisting on additional safeguards not provided for
in the Framework Decision.
Lastly, numerous problems have arisen in relation to the determination of the
competent judicial and central authorities pursuant to Articles 6 and 7 of the
Framework Decision. Although the Framework Decision on the European arrest
warrant provides that the issuing judicial authority shall be the judicial authority of
the issuing Member State which is competent to issue a European arrest warrant by
virtue of the law of that State, and that the executing judicial authority shall be the
competent judicial authority of the executing Member State, some Member States
have in fact designated either directly or indirectly the Ministry of Justice. Other
Member States have designated the Ministry of Justice to fulfil the task of the central
authority by entrusting to it powers akin to those of a judicial authority. This is
contrary to the terms of the Framework Decision. 37
35
Dr Helmut Epp, http://www.justice.org.uk/images/pdfs/eurepp.pdf
36
http://ec.europa.eu/justice_home/doc_centre/criminal/doc/com_2005_063_en.pdf
37
More than 1 700 suspects arrested in Europe in 2005: Commission’s second report confirms effectiveness of
European arrest warrant, press notice
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