EUROPEAN ARREST WARRANT
Draft Council Framework Decision on the European arrest warrant and the surrender procedures between the Member States.
||Articles 31(a) and (b), 34(2)(b); consultation; unanimity
|Basis of consideration:
||EM of 11 December 2001
|Previous Committee Report:
||None; but see (22625) 12102/01: HC 152-ii (2001-02), paragraph 7 (17 October 2001), and (22593) 10912/01: HC 152-vi (2001-02), paragraph 2 (14 November 2001) and HC 152-viii (2001-02), paragraph 1 (28 November 2001)
|To be discussed in Council:
||14- 15 December 2001
||Legally and politically important
5.1 We considered a draft of a proposal
for the European arrest warrant (which would supplant the current
system of extradition between Member States) on 17 October,
and again on 14, 21 and 28 November. We noted that the proposal
would lead to a major change in extradition arrangements with
other EU Member States and would lead to the abandonment of traditional
safeguards such as the requirement for dual criminality
and the speciality rule.
5.2 We recommended that the document be
debated on the floor of the House and that the debate might appropriately
address the following points in particular:
(1) the absence of any definition of the term
'judicial authority' or of any means of ensuring that orders made
by police forces, with no recognisable judicial involvement in
the making or approval of such orders, are excluded from the scope
of the proposal;
(2) the absence of any provision to ensure that
the return of a person convicted in absentia may be made
subject to a guarantee of a retrial in the issuing State; and
(3) the vagueness, or in some cases complete
absence, of definition of offences under Article 2(2) in respect
of which the safeguard of dual criminality is to be abandoned.
5.3 The document was debated in Standing
Committee B on 10 December. In the course of that debate the Parliamentary
Under-Secretary of State at the Home Office (Mr Bob Ainsworth)
explained that a more recent version of the document was considered
at the Justice and Home Affairs Council on 6 and 7 December and
was further updated. The Minister also explained that the concerns
which had been expressed about the definition of judicial authorities
and the conditions in which a European arrest warrant would be
executed in the case of a conviction in absentia would
be answered in the new text.
5.4 The Minister deposited the new text
(14867/1/01 REV 1) on 11 December, together with an Explanatory
The revised proposal
5.5 The revised proposal is a text of 10
December recording the outcome of discussions at the Justice and
Home Affairs Council on 6 and 7 December. Although the document
retains the same structure as the previous document, it is apparent
that it has undergone substantial change in relation to the three
areas of concern which we had identified on 14, 21 and 28 November.
5.6 In the first place, Article 1(1) of
the revised proposal states that "the European arrest warrant
shall be a court decision issued by a Member State with a view
to the arrest and surrender of a requested person by another Member
State". The previous version did not refer to the arrest
warrant as being a decision by a court.
5.7 The material scope of the proposal has
also been changed. Article 2(1) provides that a warrant may be
issued for offences punishable with a maximum of at least twelve
months or in the case of a conviction, with a sentence of four
months or more. Article 2(2) sets out a list of offences punishable
with a maximum of at least three years to which the proposal will
apply, 'without verification of the double criminality of the
action'. The offences are not defined, but are described by reference
to acts which are criminal under the law of the issuing State.
Some of these acts, such as terrorism, money-laundering or trafficking
in drugs or human beings are or will be defined at EU level, whilst
others, such as murder or grievous bodily injury, are referred
to in the Europol Convention.
This leaves a number of offences which are not defined at EU level,
but where the precise scope of the offence will vary from Member
State to Member State. The list is substantially the same as that
under the previous version, but there are some additions such
as rape, arson and 'motor vehicle crime', crimes within the jurisdiction
of the International Criminal Tribunal, unlawful seizure of aircraft
or ships and 'sabotage.'
The list still contains a reference to the offences of 'racism
and xenophobia'. A draft Council statement indicates that Member
States' definitions of this latter crime are to be guided by the
definition in the Joint Action of 15 July 1996 (96/443/JAI).
5.8 Article 2(3) provides a mechanism for
the Council to add other offences to the list in Article 2(2).
Article 2(4) provides for the application of dual criminality
on a wider basis than under the previous version. Surrender may
now be made subject to dual criminality for any offence which
is not in the Article 2(2) list 'whatever the constituent elements
or however it is described'.
5.9 Article 3 sets out grounds on which
an executing State must refuse execution of a warrant and is in
substantially the same terms as the previous text.
5.10 Article 4 sets out grounds on which
an executing State may refuse execution of a warrant. Accordingly,
a State may refuse execution if the requirement of dual criminality
is not met in the case of an offence falling under Article 2(4),
save that in relation to tax offences execution may not be refused
on the basis that the executing state does not impose the same
kind of duty or tax. Other grounds of refusal are substantially
unchanged. However, a new ground of refusal is provided by Article
4(7) based on the assertion by the issuing State of extra-territorial
jurisdiction. Accordingly, execution may be refused where the
warrant concerns offences which are regarded by the executing
State as committed in whole or in part in its territory, or where
the offence is committed outside the territory of the issuing
State and the executing State does not allow prosecution for the
same offences when committed outside the territory of the executing
5.11 Article 5 sets out a number of guarantees
which are to be given by the issuing State in cases of judgments
given in absentia, in cases where a sentence of life imprisonment
may be imposed, or where the person is a national or resident
of the executing State.
5.12 Where the arrest warrant is issued
for the purposes of executing a custodial sentence or detention
order imposed by a decision rendered in absentia, Article
5(1) provides that, where a person is convicted without having
been summoned in person or otherwise informed of the date and
place of the hearing, the surrender may be made subject to the
condition that the issuing judicial authority gives assurances
deemed adequate to guarantee the person who is the subject of
the warrant 'that he or she will have an opportunity to lodge
an appeal or opposition in the issuing State and be present at
the judgment'. This is to be compared with the Second Additional
Protocol to the 1957 European Extradition Convention which makes
the return of a person in such circumstances subject to an assurance
of a retrial. Under the provisions of Article 5(1) as they now
stand, it is by no means clear that the executing judicial authority
may insist on a retrial as a condition of returning the arrested
5.13 Article 6 addresses the central question
of who is to issue and enforce a European arrest warrant. Article
6(1) now provides that the 'issuing judicial authority' shall
be the issuing judicial authority which is competent to issue
an arrest warrant by virtue of the law of the issuing State. Article
6(2) similarly provides that the executing judicial authority
shall be the executing judicial authority which is competent by
virtue of the law of the executing State. Article 6(3) requires
each Member State to inform the General Secretariat of the Council
of the competent authority under its law. The question of who
is to qualify as a 'judicial authority', whether in the issuing
or executing State, is not defined in the Framework Decision but
since Article 1(1) now refers to the warrant as being a 'court
decision' it would seem reasonably clear that what is meant is
an authority with recognisably judicial functions exercised independently
from police forces or prosecuting authorities.
5.14 Articles 7 to 21 deal with the transmission
of a warrant, the designation by Member States of a central authority,
the content and form of the warrant, surrender procedure, transmission
of the warrant, recognition, assistance to the arrested person,
consent to being surrendered, multiple requests and time limits.
These provisions do not appear to have undergone any substantial
5.15 A change has been made in respect of
the principle of speciality. Whereas Article 22 of the previous
version sought to abolish speciality by providing that a person
surrendered pursuant to a warrant may be prosecuted, sentenced
or detained in the issuing State for an offence other than the
one for which the warrant was issued, this provision has now been
replaced. By virtue of Article 22(1) a Member State may declare
that its consent to prosecution for other offences may be presumed
(except where consent is withdrawn in a particular case). If no
such declaration is made, then the surrendered person may not
be prosecuted for any offence committed prior to his surrender
other than the one for which he was surrendered. Article 22(3)
provides an exception from Article 22(2) where the person has
had an opportunity to leave the State to which he has been surrendered,
but has not done so within 45 days, where the offence is not punishable
by deprivation of liberty, or where the person renounces his entitlement
to the rule of speciality. The effect of the re-introduction of
speciality appears to be limited by the provisions of Article
22(4) which prevent consent being refused for the prosecution
of another offence which could have been the subject of a warrant.
In these cases, consent may only be refused on the grounds provided
for in Article 3 and 4.
5.16 Article 23, which is concerned with
the further surrender of a requested person by the issuing Member
State to another Member State or to a third country, has been
complemented by a new Article 23a dealing with the handing over
of property which may be required as evidence or has been acquired
by the person as a result of the offence. The relationship of
this provision to the draft Framework Decision
on the execution of orders freezing assets or evidence is far
from clear. It does not, for example, contain the rights of appeal
enjoyed by bona fide third parties available under that draft
5.17 The general safeguard clause in Article
24 (by which a Member State may make a declaration suspending
the application of the Framework Decision with regard to another
Member State 'in the event of a serious and persistent breach
or violation of fundamental human rights as provided in Article
6(1) of the Treaty on European Union in that Member State') appears
to have been abandoned. Transitional provisions in Article 26920
will permit Austria to continue to refuse to extradite its own
nationals until the end of 2008.
The Government's view
5.18 In his Explanatory Memorandum of 11
December the Parliamentary Under-Secretary of State at the Home
Office (Mr Bob Ainsworth) describes the main features of the proposal
"Traditional extradition procedures are abolished
within the EU area of freedom, justice and security. Instead,
a European Arrest Warrant is created which must be recognised
by the judicial authorities of every Member State. It serves as
a request for location, arrest, detention and surrender of a fugitive.
"The warrant can only be executed by a judicial
authority in the executing state, and there is virtually no involvement
for the executive in the decision-making process. The central
authority (the Home Office) may have a small role to play in transmitting
documents, requests for additional information and facilitating
translations and may be involved in some limited elements of the
"The warrant must be executed, and the fugitive
surrendered, unless one of a very small number of exceptions can
be shown to apply. Strict time limits will seek to ensure that
the whole process takes place very rapidly.
"Major reforms include the removal of dual criminality,
specialty and of the bar on the extradition of own nationals.
Article 2(2) removes the test of dual criminality for a wide range
of serious offences provided that they are covered by the list
and attract a maximum sentence of at least 3 years under the law
of the issuing state. For other offences the application of the
dual criminality test is permissive. The UK government has consistently
argued for the removal of the test, but is still considering whether
to apply it in particular cases (eg. abortion and euthanasia).
The Framework Decision leaves the UK government free to decide
this in its domestic legislation.
"Mandatory bars to surrender contained in the
Framework Document are set out in Article 3, and optional grounds
are set out in Article 4. There are provisions relating to temporary
surrender, and what happens in the case of multiple requests being
received for the same person.
"Extradition may no longer be refused for own
nationals, (with the exception of Austria, who are permitted to
refuse under certain circumstances laid out in Article 26, until
2008). A state which surrenders someone may insist that the person
is returned after trial to serve any sentence imposed, where the
executing state wants to help ensure the person's reintegration.
In the case of nationals, and of persons resident in the territory
in question, execution of the arrest warrant may be made dependent
on their being returned to their country of nationality or residence
for the purpose of serving their sentence to aid in reintegration.
Alternatively, where the execution of a custodial sentence is
required, an executing state may allow fugitives to serve their
sentence in its own prisons, for the same reason as given above.
"The Framework Decision guarantees certain rights
for fugitives. These are the automatic right to a lawyer and,
if necessary, to an interpreter from when they are arrested onwards.
Decisions on detention or bail are to be made under each Member
States' national law.
"The preamble to the Framework Document makes
reference to the ECHR, but there is no explicit bar to surrender
based on human rights considerations. The Government is satisfied
that decisions made under the Framework Decision will be ECHR
compliant and the UK implementing legislation will be compatible
with Convention rights. The question of compatibility with ECHR
rights will be addressed again by the Government as part of the
legislative process to implement the Framework Decision."
5.19 In the extremely short time which
we have had to consider this revised proposal, we have concentrated
our attention on those issues raised in our Report recommending
5.20 We welcome the reference in article
1(1) to the arrest warrant being a 'court decision issued by a
Member State' and the references to issuing and executing judicial
authorities in Article 6. From these it appears to us to be established
that the relevant authorities must have recognisably judicial
functions which are exercised independently.
5.21 We welcome the greater, though still
limited, scope which is now made available for the operation of
the traditional safeguards of dual criminality and the speciality
rule. We also welcome the attempt which has been made to provide
greater certainty as to the scope of some of the offences listed
in Article 2(2) such as 'racism and xenophobia'.
5.22 Nevertheless, we repeat our concern
that there is no provision to entitle the executing State to require
a guarantee of a retrial in cases where a person is surrendered
following a trial held in absentia. We do not consider
that being given 'an opportunity to lodge an appeal or opposition'
provides equivalent protection to the right to demand a retrial.
In our view, no justification has been made out for this regression
from the standards established under the Second Additional Protocol
to the European Extradition Convention (which do guarantee a right
to a retrial in the like circumstances).
5.23 We have made this point on several
occasions as clearly as we can, and recommended the previous
document for debate (which took place in European Standing Committee
B on 10 December). We reluctantly conclude that no useful purpose
is served by asking the Minister yet more questions on the point
and holding the present document under scrutiny, but we shall
call the Minister to attend the Committee at the first opportunity
to answer the points made in this Report, to explain further the
latest text and to give an account of the outcome of discussions
on it at the European Council at Laeken.
8 (22625) 12102/01; see headnote to this paragraph. Back
requirement that the conduct which is the subject of the extradition
request should be regarded as criminal in both the requesting
and the extraditing State. Back
principle in extradition law under which a person may not be prosecuted
in the receiving State for any offence other than the one for
which he was extradited. Back
No. C 316, 27.11.95, p. 2. Back
is defined in draft Council statement as large-scale damage to
a government installation, another public installation, a public
transport system or other infrastructure which entails or is likely
to entail considerable economic loss. Back
OJ No L 185, 24.07.1996 p. 5. The Joint Action refers to incitement
to discrimination, racial violence, public condoning of crimes
against humanity, denial of war crimes as defined in the London
Agreement of 1945, dissemination of material containing expressions
of racism and xenophobia and participation in groups or organisations
which involve discrimination, violence, or racial, ethnic or religious
12445/01; see HC 152-vi (2001-02), paragraph 2 (14 November 2001). Back