EU Cooperation in Criminal Matters:
A Critical Assessment of the European Arrest Warrant
By Susie ALEGRE
Legal Officer for EU Criminal Justice at JUSTICE
(JUSTICE - a British NGO – is the British Section of the International Commission of Jurists)
Lecture in the International Seminar for Experts “Justice and Home Affairs – Toward the Full Implementation of the Amsterdam Treaty”, organised by the Cicero Foundation in Paris in the series Great Debates on 14-15 February 2002.
Where I think that my contribution to this seminar could be most useful is in taking a look at the European arrest warrant from a rights based perspective, highlighting the issues that still need to be resolved if the system is to be workable and credible. I will break this talk into four sections, an introduction to the background of the European arrest warrant, key rights affected, specific concerns arising from the text and finally a suggestion as to how fundamental rights could be better protected in this context.
1. The idea of a European Arrest Warrant system whereby a judge in one Member State of the EU could directly enforce a warrant for arrest issued by a judicial authority in another Member State has long been under consideration as part of the European Union’s move towards an “area of freedom, security and justice”. The Tampere Conclusions’ (1999)[i] opened the door to the Commission’s work which resulted in the proposal for a Council Framework Decision on the European arrest warrant and the surrender procedures between the Member States[ii] presented in late September last year. While the Commission had been working on the proposal for a long time, the Extraordinary Council held in response to the events of September 11th in the US requested the JHA Council to reach agreement on the proposal by Christmas. This meant that the Council’s work on the issues has been extremely rushed with Member States bending over backwards to bury their differences. The result is an instrument which goes a long way to facilitating co-operation between prosecuting authorities but barely even gives lip service to the rights of the defence.
2. The ever-increasing openness and co-operation within the EU, the lowering of internal borders and the rapid development of telecommunications and the internet have provided a fertile ground for cross-border crime. High profile cases such as the Pinochet case have shown up the current Extradition arrangements as cumbersome and the ultimately political decisions that govern the granting of an extradition request seem out of place in a genuine European judicial space. The European Arrest Warrant is clearly necessary and timely in today’s Europe where the political and administrative aspects of extradition are outdated.
3. The wide variety of substantive and procedural criminal laws across the EU, however, means that a great deal of careful consideration needs to be given to the practical aspects of such an instrument. Any measure which will make a radical change in the workings of the criminal justice system across Europe should be backed up with a complete functional set of procedural safeguards to ensure that an effective stripping of rights and freedoms is not an unintended by-product of the new system. The pressure to reach agreement has led to a final draft of the Framework Decision (a draft which bears little resemblance to the original proposal) which has not gone far enough to ensure the inclusion of adequate procedural safeguards.
4. The Conclusions of the Extraordinary European Council Meeting on 21 September approve the introduction of the European arrest warrant to supplant the current extradition system but explicitly state that “In parallel, fundamental rights and freedoms will be guaranteed.”
5. Unfortunately, although the Commission is currently working on a proposal relating to minimum standards in criminal procedures across the EU, there has been little sign of parallel protection of the fundamental rights and freedoms which could be at risk from the European arrest warrant. It is likely that the Framework Decision will be adopted at the end of the month having been approved by the European Parliament last week. We can expect it to be in force in 2004. The absence of adequate safeguards within the text and the slow prognosis for a sister instrument to meet the potential risks to civil liberties posed by the European arrest warrant leave the system open to abuse pending a remedy.
6. It is often argued that as all the Member States of the EU have signed up to the European Convention on Human Rights and the European Charter on Fundamental Rights and Freedoms, there is no threat posed to individual rights through judicial cooperation within the EU. The Commission in its consultation paper on procedural safeguards for suspects and defendants in criminal proceedings recognises that:
“A feature of these treaty rights is often their lack of detail, since the intention was to lay down the principles and leave implementation to the signatory States. This has led to certain areas not being adequately covered and it is hoped to be more specific as regards mechanisms for enforcing existing rights rather than to establish new rights.”
7. There is a danger that when the European Arrest Warrant Framework Decision comes into force, a suspect might find himself in a kind of limbo, with limited recourse to either an insufficiently precise instrument, the ECHR, or a non-binding instrument, the Charter, to protect his rights.
Three Key Human Rights Affected
8. The exercise of the right to liberty enshrined in Article 5 ECHR is affected by the category of justification used for curtailing that right. If a person is deprived of his liberty according to Article 5(1)(c):
“the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;”
then the procedural safeguard in Article 5(3) applies, that is that:
“Everyone arrested or detained in accordance with the provisions of para 1(c) of this article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial”.
If, however, the deprivation of liberty is in accordance with Article 5(1)(f) “…with a view to deportation or extradition.” That safeguard is not available.
9. The Commission proposal for the European Arrest warrant states clearly that the procedure is to be treated as extradition for the interpretation of Article 5 ECHR. There is no mention, however of the classification in terms of Article 5 in the final text and as, unlike a Convention, the Framework Decision will have no explanatory note, this point is likely to be decided in the courts of the Member States and eventually perhaps in the ECtHR.
10. The Framework Decision states that a decision on detention shall be taken by a judicial authority in the executing Member State. Provisional release may be allowed “at any time in conformity with national law, provided that the competent authority of the executing State takes all the measures it deems necessary to prevent the person absconding.”[iii]
11. According to UK law at least, while bail may be granted in extradition proceedings, there is no presumption in favour of bail for extradition cases as there is in purely domestic proceedings. Depending upon the way that the UK government chooses to implement the Framework Decision, the definition of the European arrest warrant could become a crucial deciding factor in the exercise of Article 5 rights including the right to bail.
12. Aside from the legal minutiae of distinctions between the nature of a provisional arrest under the Extradition Convention and arrest on the basis of a formal extradition request[iv], the case of Quinn v France[v] seems to establish that there is no question of the procedural guarantees contained in Art. 5.3 applying to cases covered by Art. 5.1.f. The European Commission of Human Rights did, however, clarify in the case of Osman v UK[vi] that the refusal of bail to an individual could affect the general notion of lawfulness in Article 5 if it could be said to be unreasonable or arbitrary. These are issues that will no doubt fall to be reconsidered within the scope of the European arrest warrant as it replaces formal extradition within the EU.
13. While all the European Union member states recognise the right to a fair trial enshrined in Article 6 of the ECHR, it is clear that the application of that right varies from country to country. While the actual proceedings in the executing state would not be classified as the “determination … of any criminal charge” and therefore would not be protected by Article 6, the guarantee of the right to a fair trial in the issuing country could become an issue when executing the European arrest warrant. In cases of requests from countries with a persistent track record of breach of Article 6 through unreasonable delays in proceedings which indicate an endemic procedural problem, the executing state’s responsibility for the actual or potential breach on surrender could be decided along the lines of the Soering decision (which related to Article 3 and the death row phenomenon).
14. It is unclear where exactly the routes of appeal or judicial review lie in cases of serious breach of international or national law or procedures in the issuing Member State following surrender. In the interests of clarity and a genuine protection of the rights of the defence, clear routes of appeal should be drawn up. This could include widening the jurisdiction of the ECJ or an increased role for judges from an executing Member State in proceedings in the issuing Member State. Mechanisms such as a European habeas corpus order as proposed by Neil MacCormick MEP or time-limits for the conduct of proceedings in the issuing Member State as well as for proceedings in the executing Member State could play an important part in addressing this problem.
15. Legal aid is a matter that is also dealt with very differently in different Member States. The original Commission proposal recognises the absolute necessity of legal representation and interpreting facilities in European arrest warrant cases. The complexity of the law and procedures involved in international co-operation in criminal matters, the potential linguistic disadvantage to the defendant in such cases and the particularly coercive nature of the European arrest warrant demands that in the interests of the “equality of arms” principle, this must be so. The Commission proposed that this guarantee should be “specific to the European arrest warrant and independent of the procedure applicable in the Member State in the event of arrest on the basis of a national arrest warrant”. The final text has once again compromised the rights of the defence in the interests of reaching agreement quickly so that the right to legal representation is now in accordance with the law of the Member State, which varies from country to country.
The Right to Family Life - Article 8 ECHR
16. While the case law relating to Article 8 of the ECHR is reluctant to find breaches of Article 8 in cases of prisoners being kept at a great distance from their family for extended periods[vii], the Convention is a living instrument and is developed on a case by case basis. The court and the commission have not ruled out the possibility that the distance of a prisoner from their family could form a breach and if the European arrest warrant were to lead to significant periods of custody on remand at a great distance from ones family or residence, this could eventually give rise to breaches of article 8. Mechanisms for European wide bail or the transfer of prisoners on remand to their countries of origin or residence while awaiting trial could go some way to alleviating this problem.
Five Principle Areas of Concern
A. Dual Criminality
The principle that in order for an extradition to take place the conduct alleged must constitute an offence both in the requesting and the requested state.
17. The European arrest warrant signals a significant erosion of the principle of dual criminality which applies to current extradition procedures in the European Union under the European Convention on Extradition. This raises major issues in a European Union with such a wide variety of criminal laws. The historical and cultural frameworks in different countries mean that democratically elected governments have reached very different positions in relation to a number of what could be described as “ethical issues”. There is no Europe wide consensus as to the criminality or acceptability of many types of conduct such as abortion, euthanasia, soft drug use and those relating to freedom of expression like blasphemy and defamation.
18. The final text contains a positive list of types of offence for which the principle of dual criminality will be abolished across the European Union for offences carrying at least a three year maximum sentence. This list has been criticised for being vague and ill-defined with types of conduct such as “motor-vehicle crime” and “swindling” having a potentially broad ambit. Most of the types of offence on the list, however, do cover conduct that on first sight we assume to be unproblematic. “Murder”, for example – yes, well, of course everyone in the European Union considers murder to be a crime. But before we accept murder so readily as common ground, let us not forget that one man’s legitimate euthanasia is another man’s murder[SB1]. In a cultural and legal mixture as varied as the European Union, even the most obvious common ground does not bear close scrutiny.
19. Extra-territorial jurisdiction provisions contained in Article 4(7) as grounds for optional non-execution go some way to meeting these concerns. It may be that this is sufficient to prevent circumstances arising that could involve the judicial authorities of Member States having to enforce decisions that run contrary to the accepted ethical framework of their own criminal law systems. The issue of dual criminality, however, requires careful scrutiny in each Member State when implementing the draft Framework Decision so that legal systems are not put into the unhappy position of providing double standards in criminal procedure depending on whether a matter is domestic or international.
20. The draft also provides for a general opt out of the dual criminality principle. This could create another level of inequality in criminal law across the European Union. Some Member States may become a soft touch for executing European arrest warrants whether or not they relate to conduct that that Member State has criminalized while others will provide safe havens for certain kinds of conduct. This type of inequality goes against the principle of mutual recognition and the move towards harmonisation in criminal law signalled by the arrival of the European arrest warrant. It is exacerbated by the variation in sentencing practices across the EU, a matter which is yet to be resolved.
21. The extremely coercive nature of surrender under a European arrest warrant means that a common standard of procedural safeguards and certainty as to its application is necessary in order to avoid a multi-tiered approach to rights across the EU.
B The Specialty Principle
A person shall be tried or punished, after extradition, only for the criminal conduct for which his surrender has been made, unless the requested state, after surrender, gives consent to further trial or punishment.
23. The right to a retrial following extradition for a conviction in absentia is found in the 2nd Protocol of the European Convention on Extradition. The final text for the European arrest warrant, however, reduces the guarantee to “an opportunity to lodge an appeal or opposition in the issuing State and to be present at the judgment”. It seems extraordinary that the European Union with its avowed dedication to the protection of citizens’ fundamental rights and freedoms should feel it necessary to lower the level of protection afforded to the individual from that which has already been agreed within the context of the Council of Europe. It is of particular concern given the very different practices in relation to conviction in absentia across the European Union. The result would seem to be that if you are the subject of an extradition request based on a conviction in absentia from a Council of Europe country not a member of the European Union you will have an improved guarantee of justice to that which you would have within the European Union under the European arrest warrant. This surely cannot be the intention of the Council.
E “Court decision”
25. The agreed definition of the European arrest warrant as a “court decision”, while apparently providing a solution to the problem posed by the differences in the nature of a “judicial authority” in various MS, does not address other key differences and possible difficulties which could arise in practice. In some jurisdictions there is a potential for private prosecutions while this is an unknown concept in others. In theory a “court decision” could cover a decision arising from a private prosecution when a public prosecuting authority has taken a decision not to proceed. It is not clear how court decisions emanating from military or quasi-military courts are to be treated or should be treated. While I am not seeking to bring the validity of such courts into question, different practices and attitudes across the European Union demand that the question of whether or not the European arrest warrant should apply to these kinds of “court decision” be addressed. Although this is unlikely to be a widespread problem, it does leave the European arrest warrant open to abuse and it is just this kind of lacuna that could fatally damage the credibility of the system.
The Framework Decision for the rights of the individual
26. The Commission acknowledged the need for safeguards particular to the European Arrest Warrant in its initial proposal. The developments in international co-operation including the Eurowarrant and the Mutual Assistance Convention 2000 create a legal framework which requires a set of mechanisms and procedural safeguards specific to cases with an international aspect additional to the level playing field approach of creating minimum standards in criminal procedure across the European Union. The special council of 21st September 2001 asked for a guarantee of fundamental rights and freedoms to run parallel to the arrangements for a European arrest warrant. Now that the provisions for safeguards and explicit rights for the defence which were included in the Commission’s proposal have been stripped away in the interests of speedy political agreement, it is essential that the guarantee of rights and freedoms be addressed in another way.
27. One way in which those rights could be protected is through the creation of a sister Framework Decision for the rights of the individual in criminal proceedings involving international co-operation[x] to complement the European arrest warrant. If the European Union is serious about creating an area of freedom, security and justice, it is time for concrete, binding and workable mechanisms to be put in place to protect the rights of the individual in criminal proceedings. Justice should not just be seen to be done in Europe through the creation of non-binding instruments full of high ideals, it should be done through clear procedures and a defined jurisdiction for either the ECJ or the EctHR in third pillar issues in the EU.
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[i] See also point 35 - “It considers that the formal extradition procedure should be abolished among the Member States as far as persons are concerned who are fleeing from justice after having been finally sentenced, and replaced by a simple transfer of such persons, in compliance with Article 6 TEU. Consideration should also be given to fast track extradition procedures, without prejudice to the principle of fair trial. The European Council invites the Commission t make proposals on this matter in the light of the Schengen Implementing Agreement.” Tampere Conclusions, para 35.
[ii] Brussels, 25.9.2001, COM(2001) 522 final/2, 2001/0215 (CNS)
[iii] Article 13
[iv] See R v Gov. Pentonville, Ex p. Sotiriadis,  ACI at 11
[v] Judgment of 22.3.95, No.311
[vi] Application 15933/89 (second application to the commission)
[vii] See Hacisuleymanoglu v Italy Appl 23241/94 79-B DR 121, where the Commission rejected the application on the ground that the Convention does not confer a right to transfer, such a transfer being subject to the prior agreement of the sentencing country; Campbell v UK Appl 7819/77, Decision, 6 May 1978 paras 30-32.
[viii] Article 22(1)
[ix] Article 1(1)
[x] See JUSTICE proposal, January 2002.