Select Committee on European Scrutiny Tenth Report




Draft Council Framework Decision on the European arrest warrant and the surrender procedures between the Member States.
Legal base: Articles 31(a) and (b), 34(2)(b); consultation; unanimity
Department: Home Office
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
Committee's assessment: Legally and politically important
Committee's decision: Cleared


  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,[8] 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[9] and the speciality rule.[10]

  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 Memorandum.

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.[11] 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.'[12] 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).[13]

  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 State.

  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 person.

  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 change.

  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[14] 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 Framework Decision.

  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 as follows:

"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 decision-making process.

"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 a debate.

  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

9  The 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

10  The 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

11  OJ No. C 316, 27.11.95, p. 2. Back

12  This 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

13   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 hatred.  Back

14  (22771) 12445/01; see HC 152-vi (2001-02), paragraph 2 (14 November 2001). Back

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