15 Judicial cooperation with the United
States of America
| (a)
(24433)
8296/03
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(b)
(24475)
8295/1/03
—
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Draft Council Decision concerning the signature of the Agreements between the European Union and the United States of America on extradition and mutual legal assistance in criminal matters.
Draft Agreements between the European Union and the United States of America on extradition and on mutual legal assistance.
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| Legal base | Articles 24 and 38 EU
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| Document originated | 9 April 2003
9 April 2003
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| Deposited in Parliament | 11 April 2003
6 May 2003
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| Department | Home Office |
| Basis of consideration | EM of 28 April 2003
EM of 13 May 2003
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| Previous Committee Report | None
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| To be discussed in Council | 5/6 June 2003
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| Committee's assessment | Legally and politically important
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| Committee's decision | (Both) Cleared
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Background
15.1 These agreements were proposed as part of the counter-terrorism
package agreed at the extraordinary Justice and Home Affairs Council
on 20 September 2001, shortly after the terrorist attacks on New
York and Washington on 11 September 2001. The Council authorised
the Presidency on 26 April 2002 to enter into negotiations with
the United States, and these negotiations have led to a draft
agreement on extradition and one on mutual legal assistance.
The agreements are designed to improve judicial cooperation between
the Member States of the European Union and the United States
of America in those fields. The agreements either supplement existing
bilateral treaties between individual Member States and the United
States or, where no such agreements exist, they are intended to
provide a basis for judicial cooperation in relation to terrorism
and other criminal offences.
15.2 The United Kingdom has long been a party to judicial cooperation
agreements with the United States. The current treaty on mutual
legal assistance was concluded in 1994, and the current agreement
relating to extradition dates from 1972. The United Kingdom is
currently negotiating a revised extradition agreement with the
United States and the text of that agreement is to be published
shortly.
The draft Council Decision (document (a))
15.3 The draft Council Decision (which is attached to document
(a)) authorises the Presidency to sign the agreements on behalf
of the European Union. Document (a) also describes the procedure
for making an agreement under the provisions of Articles 24 and
38EU.[53] The document
explains that it is envisaged that the Council will first take
a decision under Article 24 EU authorising the signature of the
agreements, and then a further decision, also under Article 24
EU, on the conclusion of the agreements.
15.4 The document also indicates that those Member States which
wish to make a declaration under Article 24 EU that they do not
consent to be bound by the agreements until they have complied
with their own constitutional procedures, will be expected to
make such a declaration at the latest at the time signature of
the agreements is authorised.[54]
Such a declaration would need to be made by any Member State which
needed to pass domestic legislation to give effect to the obligations
imposed by the agreements.[55]
Conclusion of the agreement by the Council under Article 24 EU
would then follow the enactment by the Member States of any necessary
domestic legislation. In substance, therefore, conclusion by the
Council under Article 24 EU is similar in its effect on the European
Union and its Member States to ratification of a treaty by an
individual Member State.
15.5 Article 1 of the draft Council Decision provides for the
President of the Council to be authorised to sign the Agreements
on behalf of the European Union. Article 1 also provides for the
texts of the Agreements to be annexed to the Decision. Article
2 requires Member States to take the necessary steps to draw up
the written instruments between them and the United States acknowledging
the effect of the Agreements on their existing bilateral treaties
with the United States on extradition and mutual legal assistance.
(Such instruments are provided for in Article 3(2) of the extradition
Agreements and Article 3(2) and (3) of the Agreement on mutual
legal assistance). Article 3 provides for the publication of the
Decision and its annexes in the Official Journal of the European
Communities.
The draft Agreements between the European Union and the United
States (document (b))
15.6 The draft Agreements between the European Union and the United
States are set out in document (b). The Agreements consist of
an agreement on extradition and an agreement on mutual legal assistance.
In both cases the agreements are to operate in the context of
existing bilateral agreements between Member States and the United
States, and in some respects modify those agreements. In neither
case does the conclusion of the EU/US agreement preclude any subsequent
conclusion of a bilateral agreement between a Member State and
the United States.
The extradition Agreement
15.7 By virtue of Article 1 of the extradition Agreement, the
parties (i.e. the European Union and the United States) undertake
'to provide for enhancements to cooperation in the context of
applicable extradition relations between the United States of
America and Member States governing extradition of offenders'.
Article 2 sets out a number of definitions.
15.8 Article 3 provides for the application of the Agreement in
relation to existing bilateral extradition treaties. It provides
that the provisions of Articles 4 to 14 are to be applied either
in place of existing bilateral treaty provisions or in the absence
of such provisions. (Articles 4,5 and 10 are in the former category
and Articles 6,7,8,9,11,12, 13 and 14 are in the latter). Article
3(2) requires the European Union to ensure that each Member State
'acknowledges' the operation of its bilateral agreement as amended
by the EU/US Agreement in a written instrument between that Member
State and the United States.
15.9 Article 4 (which is to apply in place of existing bilateral
treaties which provide for extradition exclusively with respect
to a list of specified criminal offences) defines what constitutes
an extraditable offence. An offence is an extraditable offence
if it is punishable under the laws of both the requested and requesting
States by imprisonment for a term of at least one year. Attempts
or conspiracies to commit an extraditable offence are also to
be regarded as extraditable offences. In the case of extradition
following a conviction, the term of imprisonment imposed must
be for at least four months. Where extradition is granted for
an extraditable offence, it shall also be granted for any other
offence specified in the request provided all the other requirements
for extradition are met. An offence is to be considered an extraditable
offence regardless of whether the laws in the requesting and requested
State place the offence in the same category of offences or describe
the offence by the same terminology and regardless of whether
it is an offence over which the federal courts (as opposed to
the state courts) of the Unites States have jurisdiction by reason
of interstate transportation, or use of the mails or other facilities
affecting interstate or foreign commerce.[56]
Article 4(4) deals with the case where the offence for which extradition
is sought is committed outside the territory of the requesting
State. In such cases, extradition cannot be required unless the
laws of the requested State also provide for the punishment of
an offence committed outside the national territory in similar
circumstances. Extradition may nevertheless be granted by the
requested State, if all other requirements for extradition are
met.
15.10 Article 5 (which is to apply in place of the provisions
of existing bilateral treaties) provides for the transmission
of requests and supporting documents by means of the diplomatic
channel. Article 6 provides that transmission in the case of requests
for provisional arrest may be made directly between ministries
of justice, and that the facilities of Interpol may also be used.
Article 7 makes further provision for the transmission of documents
following provisional arrest and Article 7(2) exempts a State
from giving effect to provisional arrest if the 'established jurisprudence
of its domestic legal system' prevents this.[57]
Article 8 provides for the transmission of supplemental information.
15.11 Article 9 (which applies in the absence of any bilateral
treaty) provides that a requested State may temporarily surrender
a person who is being proceeded against or is serving a sentence
in that State, for the purposes of prosecution in the requesting
State. In such cases, the person surrendered is to be kept in
custody in the requesting State and shall be returned to the requested
State at the conclusion of the proceedings.
15.12 Article 10 (which applies in place of, or in the absence
of, any bilateral treaty) prescribes a series of factors to be
applied by a requested States in cases where there are several
requests for extradition. In deciding which request to accept,
the requested State is to consider whether the requests were made
pursuant to a treaty, the place of commission of the offence,
the respective interests of the requesting States, the gravity
of the offence, the nationality of the victim, the possibility
of any subsequent extradition and the order in which the requests
were made. Article 10(2) provides that a request for arrest and
surrender under the European Arrest Warrant is to be considered
by the requested Member State as a request for extradition for
the purposes of the factors in Article 10(1).[58]
An Explanatory Note attached to the Agreement explains that Article
10 is not intended to affect the obligations of the States Parties
to the Rome Statute of the International Criminal Court, nor to
affect the rights of non-States Parties with regard to the International
Criminal Court.
15.13 Article 11 provides for a simplified procedure where the
person concerned consents to his extradition, and Article 12 is
concerned with arrangements for transit of an extradited person
through the territory of a Member State or of the Unites States.
15.14 Article 13 (which may be applied by the requested State
in place of, or in the absence of, any bilateral treaty provisions)
is concerned with extradition for an offence punishable by capital
punishment. In such cases, the requested State may grant extradition
on the condition that the death penalty shall not be imposed on
the extradited person. If for procedural reasons such a condition
cannot be complied with by the requesting State, extradition may
be made subject to the condition that the death penalty, if imposed,
shall not be carried out. The requesting State is bound to comply
with such conditions, and if the conditions are not accepted the
extradition request is to be refused.
15.15 Article 14 makes provision for the handling of sensitive
information, and Article 15 provides for consultations between
the Contracting Parties. Article 16 provides that the Agreement
is to apply to offences committed before as well as after it enters
into force. Article 16a is a provision entitled 'Non-derogation'.
It provides that the Agreement is to be without prejudice to the
invocation by a requested State of a ground for refusing extradition
which is provided for in a bilateral treaty between the Member
State and the United States. It also provides for consultations
where the constitutional principles of the requested State 'may
pose an impediment to fulfilment of its obligation to extradite'.
15.16 Article 17 provides that the Agreement does not preclude
the conclusion of future bilateral agreements between a Member
State and the United States which are consistent with the present
Agreement. Articles 18, 19, 19a and 20 are concerned with designations
and notifications, territorial application, review and entry into
force respectively.
The Agreement on mutual legal assistance
15.17 The Agreement on mutual legal assistance follows a similar
pattern to that of the Agreement on extradition. It contains a
number of provisions which provide for modifications of existing
bilateral mutual legal assistance treaties. These are referred
to in Article 3, which contains a similar mechanism for acknowledging
the application of this Agreement in relations between the Member
State and the United States.
15.18 Article 4 (which applies in addition to the provisions of
any bilateral treaty) requires the requested State to ascertain,
on request, whether a bank located within the national territory
has information on an identified natural or legal person suspected
or charged with a criminal offence who is the holder of an account
with that bank. The request for assistance may not be refused
on the grounds of bank secrecy, but requests are to be responded
to in accordance with the provisions of any existing bilateral
mutual assistance treaty or, in the absence of such treaty, with
the law of the requested State.
15.19 Article 5 provides for the establishment of joint investigative
teams. Details relating to the composition, location, organisation
and functions are to be agreed by the competent authorities concerned.
Where investigative measures are to be taken in the State setting
up the team, the competent authorities may be requested by a member
of that team to undertake such measures. The required legal standard
for obtaining such measures is to be the standard applying to
domestic investigations.
15.20 Article 6 provides for video conferencing, including the
taking of witness statements. The procedure is to be that provided
for under any applicable bilateral treaty or, in the absence of
such a treaty, in accordance with the law of the requested State.
Article 7 provides for the expedited transmission of requests
by e-mail and fax.
15.21 Article 8 provides that mutual legal assistance shall also
be afforded to a national administrative authority investigating
conduct with a view to prosecution, or referral for prosecution,
but assistance is not to be made available where the administrative
authority anticipates that no prosecution or referral for prosecution
will take place.
15.22 Article 9 is concerned with data protection. It provides
that a requested State may use information obtained pursuant to
a request for the purposes of its own criminal investigations
and proceedings, for preventing an immediate and serious threat
to its public security, for non-criminal judicial or administrative
proceedings directly related to criminal investigations or proceedings,
and for any other purpose provided the information has been made
public in the proceedings for which it was transmitted. In any
other case, the consent of the requested State is required for
use of the information. Article 9(2) (3) and (4) makes provision
in respect of the imposition of additional conditions by the requested
State.
15.23 Article 10 requires the requested State to use its best
efforts to keep the fact of a request and its subject-matter confidential
if this is requested by the requesting State. Article 11 provides
for consultations between the parties, and Article 12 makes the
Agreement applicable to offences committed before as well as after
it enters into force. Article 13 contains a 'Non-derogation' provision,
such that the Agreement is without prejudice to the invocation
by a requested State of a ground for refusal of a request available
under an existing bilateral treaty or where execution of the request
'would prejudice its sovereignty, security, ordre public
or other essential interests.
15.24 Article 14 provides that the Agreement does not preclude
the conclusion of future bilateral mutual legal assistance agreement
between a Member State and the United States. Articles 15 to 17
make similar provision to that made in the extradition Agreements
relating to designations and notifications, territorial application,
review and entry into force.
The Government's view
15.25 In his Explanatory Memorandum of 28 April the Parliamentary
Under-Secretary of State at the Home Office (Lord Filkin) explains
the policy implications of document (a), the Council Decision
authorising signature of the EU/US Agreements. The Minister explains
that the Council must take two decisions, the first to authorise
signature and the second to conclude the Agreements under Article
24EU. The Minister points out that on the occasion of the adoption
of a Decision to authorise signature, the United Kingdom will
make a declaration under Article 24(5)EU stating that the Agreements
will not be binding on the UK until the necessary parliamentary
procedures have been completed. The Minister further explains
that this would include scrutiny of the draft Council Decision
to conclude the Agreements and the introduction of any necessary
legislation to give effect to the obligations undertaken under
the Agreements.
15.26 In his Explanatory Memorandum of 13 May the Parliamentary
Under-Secretary of State at the Home Office (Mr Bob Ainsworth)
describes the policy implications of the Agreements (document
(b)). The Minister first addresses the question of the identity
of the Contracting Parties to the Agreements, stating the Government's
view that agreements under Article 24 EU are concluded by the
Council on behalf of the Union, and that it is the Union which
is a party to such agreements, rather than the Member States.
The Minister explains that 'to this extent Article 24 has by implication
conferred a limited legal personality on the Union'.
15.27 The Minister explains that the Agreements extend some features
of judicial cooperation applying between Member States (such
as the EU mutual legal assistance Convention of 2000, the Schengen
Convention and the Framework Decision on the European Arrest Warrant)
to relations between the European Union and the United States.
However, the Minister also points out that dual criminality will
continue to be required as a condition of extradition. The Minister
adds that the United Kingdom already employs extensive judicial
cooperation mechanisms with the United States. These are based
on an extradition treaty of 1972 and an agreement on mutual legal
assistance concluded in 1994. In the Minister's view 'the Extradition
Agreement will therefore have little added value for the UK, beyond
some improved administrative arrangements to speed up procedures
for transmitting documents'.
15.28 The Minister summarises the policy concerns of the UK as
follows:
"The Government's policy concerns were that the EU/US Agreements
should add value to existing bi-lateral treaties for other Member
States even if not for the UK, and that they should neither inhibit
existing bi-lateral co-operation, nor the conclusion of future
bi-lateral Treaties with the US. The Government is satisfied that
the provisions of the draft EU/US Agreement meet these objectives.
Articles 3 (both agreements), 17 (extradition) or 14 (mutual legal
assistance), and 18 (extradition) or 17 (mutual legal assistance)
enable full clarification of the relationship between existing
bi-lateral arrangements and the EU/US agreement. For example,
the provisions of Article 4, especially subsection (2), of the
Extradition Agreement would not apply to the UK because the new
UK/US bilateral treaty applies a sentence threshold, not a list
of offences, to extraditable offences. In addition, the exchange
of designations and notifications will allow further clarification
of the relationship between these Agreements and UK/US bilateral
arrangements.
"Similarly the Government wished to ensure that the Article
38 Agreement, the first with legislative consequences, did not
give rise to excessive interference in UK/US relations. We are
satisfied that neither ECJ jurisdiction, not infraction proceedings,
would apply. The method by which the EU would ensure UK compliance
with the agreement, following the specified consultation procedures,
would be through the principles of loyalty and good faith to unanimous
Council decisions."
15.29 The Minister points out that the extradition Agreement does
not require the extradition of the requested State's own nationals,
or the abolition of a political offence exception. The question
of mutual assistance in relation to money-laundering and the seizure
and confiscation of the proceeds of crime has been deferred to
a future agreement on mutual legal assistance. The Minister explains
that the United States was anxious to retain the provisions of
Article 10(2) of the extradition Agreement and to avoid any specific
references to the International Criminal Court or to military
tribunals which could be used to try some terrorist cases. The
Minister adds that the Government was satisfied that the extradition
Agreement would not inhibit the UK from giving priority to a request
for extradition to the International Military Tribunal, or from
refusing extradition to face a military tribunal which did not
meet the fair trial requirements of Article 6 of the European
Convention on Human Rights.
15.30 The Minister makes a number of detailed points in relation
to the mutual legal assistance Agreement. He points out, in relation
to the identification of bank accounts under Article 4, that the
provisions of the Crime (International Co-operation) Bill must
first be enacted before such assistance can be provided. On the
establishment of joint investigative teams under Article 5, the
Minister explains that the Government is considering whether to
negotiate a supplementary bi-lateral agreement with the United
States (which could, inter alia, address the question of civil
and criminal liability as provided for in sections 88 and 89 Police
Act 1996) or to establish procedures on a case-by-case basis.
In relation to Article 8 the Minister explains that this provision
is consistent with the current US/UK bilateral agreement and section
4 of the Criminal Justice (International Co-operation) Act 1990.
With regard to Article 9 (data protection) the Minister explains
that these provisions are not significantly different from those
of the UK/US bilateral agreement, except for Article 9(1)(b) providing
for the use of information to prevent an immediate and serious
threat to public security without first obtaining the consent
of the requested State. The Minister adds that such cases will
be rare and that the requested State would be likely to be aware
of such use in any event under existing arrangements.
Conclusion
15.31 We thank the Ministers for their comprehensive and detailed
Explanatory Memoranda on these proposals. We note their explanation
that the provisions of Article 24 EU have conferred a limited
legal personality on the European Union, and we agree that this
appears to be the implication of the provisions.
15.32 We note the Ministers' assessment that the Agreements
will provide little added value for the United Kingdom in its
legal relations with the United States, and that they will not
prevent future bilateral cooperation. We also note that traditional
safeguards, such as the maintenance of the principle of dual criminality,
have been maintained.
15.33 We also agree with the provisions of Article 10(2) of
the Extradition Agreement on the priority to be given to multiple
extradition requests. We do not consider that requests under the
European Arrest Warrant should be given any automatic precedence
over extradition requests from other States, including the United
States. In our view, the requested State should be permitted to
take into account all the circumstances of the various requests.
15.34 As the Agreements reflect current practice between the
United Kingdom and the United States we see no reason not to clear
them from scrutiny, together with the draft Council Decision authorising
signature.
53 Article 38 EU applies the provisions of Article
24 EU to agreements made in the field of police and judicial cooperation
in criminal matters (Title VI of the EU Treaty). Back
54
Article 24(5) EU permits a Member State to declare that it will
not be bound by an agreement until it has complied with its own
procedural requirements. In the absence of such a declaration
(or where it is unnecessary in the Member State concerned) the
agreement will bind the Union and its Member States when it is
concluded. Back
55
This would be the case for the United Kingdom, and we understand
that the UK intends to make such a declaration. Back
56
The conduct must, however, be criminal in both the requested and
the requesting State. The safeguard of dual criminality therefore
still applies. Back
57
The footnote to the text indicates that this is the case in Germany. Back
58
The effect of this provision appears to be that a request under
the EAW by another requesting State is not, by reason of that
fact alone, to be given any priority over a request by the United
States. Back
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