20 Implementation of European Arrest
Warrant
| (26399)
6815/05
COM(05) 63
+ ADD 1
| Commission report based on Article 34 of the Council Framework Decision of 13 June 2002 on the European Arrest Warrant and the surrender procedures between Member States
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| Legal base | — |
| Document originated | 23 February 2005
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| Deposited in Parliament | 3 March 2005
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| Department | Home Office |
| Basis of consideration | EM of 1 September 2005
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| Previous Committee Report | None; but see HC 152 xvii (2001-02), 30 January 2002
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| To be discussed in Council | No date set
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| Committee's assessment | Legally and politically important
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| Committee's decision | Cleared
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Background
20.1 The European Arrest Warrant (EAW) was adopted by the Council
as a Framework Decision on 13 June 2002.[52]
It replaces the existing arrangements between Member States and
is designed to accelerate the extradition process. It provides
for the abolition of safeguards traditionally applied in extradition
treaties such as dual criminality (the principle that a person
may only be extradited for conduct which is unlawful in the country
requesting extradition and the country from which extradition
is sought). It presupposes a high level of trust between the judicial
and other authorities of the Member States.
20.2 The previous Committee considered the EAW on
a number of occasions, concluding with its report of 30 January
2002. The previous Committee regretted that there was no definition
of the authority which could request extradition, and that this
might make it impossible to prevent the enforcement of orders
made only by police forces. However, it welcomed the assurance
by the then Minister that a warrant which was not a court decision
would not be executed in the United Kingdom.[53]
The Committee also regretted the absence of any explicit provision
to the effect that a Member State might refuse extradition of
a person to a Member State where the guarantees under Article
6 of the European Convention on Human Rights in respect of the
fairness of trials were not sufficiently observed.[54]
The Committee also considered that the safeguard of dual criminality
had been too lightly discarded, and that the listing of offences
in descriptive generic terms such as "racism and xenophobia"
(in respect of which dual criminality would not be required as
a condition of extradition) would give rise to difficulties which
had not been fully thought through.[55]
20.3 The Framework Decision was due to be implemented
into national laws by 31 December 2003, but only Belgium, Denmark,
Finland, Ireland, Portugal, Spain, Sweden and the United Kingdom
met the required deadline. (The EAW was transposed into the law
of the United Kingdom by the Extradition Act 2003 and orders made
under that Act). In July 2005, the German constitutional court
(Bundesverfassungsgericht) ruled that the law implementing
the EAW was incompatible with the German constitution (Grundgesetz).
That case (Mamoun Darkanzali) concerned a request by Spain
for the extradition of a German national. In consequence, it appears
that Spain will no longer apply the EAW procedure in respect of
extradition requests by Germany.
The Commission's report
20.4 The Commission's report is made under Article
34 of the EAW Framework Decision. It reviews the implementing
legislation of Member States and notes, overall, that the EAW
had been implemented in 24 Member States by 1 November 2004, with
legislation being considered in Italy by the national parliament.
The report nevertheless asserts that a number of Member States
have not fully implemented the EAW or have qualified its operation
in the national system.
20.5 In the discussion of the scope of the EAW, the
report concludes that there have been no major difficulties with
the transposition of the list of 32 offences in respect of which
dual criminality cannot be required as a condition for extradition.
However, this conclusion is hardly borne out by the more detailed
Commission staff working paper. This shows that a number of Member
States have indeed found difficulty with the transposition of
such concepts as 'swindling' or 'racketeering and extortion'.
The working paper refers to Estonia, Greece, France and Slovenia
as omitting categories from the list. It also notes that Belgium
has provided that "murder or grievous bodily harm" as
referred to in the list in Article 2(2) of the EAW does not include
abortion or euthanasia. The Commission considers this to be contrary
to the Framework Decision since "it is the law of the issuing
State and not the executing State which determines whether an
offence is in the list".
20.6 Attempts and participation in criminal offences
have also given rise to difficulty in some Member States. The
paper notes that Ireland and Estonia will continue to apply the
safeguard of dual criminality in relation to such cases. It also
appears that Estonia, Greece and France have not referred to "racketeering"
in transposing the Article 2(2) list. Slovenia has not included
"swindling" and has only included "racketeering"
and "extortion" when committed by a group or with the
use of weapons.
20.7 The main points made in the Commission staff
paper may be summarised as follows: On the implementation by Member
States of the mandatory grounds for refusing to execute a warrant
under Article 3, the paper criticises Denmark for referring to
a pardon rather than an amnesty, and Ireland for providing for
an immunity by reason of a pardon or amnesty in the issuing Member
State rather than the executing State. The Commission asserts
that this "is not in line with" the Framework Decision,
which provides for a refusal only where there has been an amnesty
in the executing State, and considers that "this may have
an impact on the efficiency of the EAW system since it may result
in Ireland always requiring this additional information, which
was not foreseen in the EAW form". The Commission asserts
that the UK's implementation is contrary to the Framework Decision
in that in cases where a person has already been "finally
judged" (and therefore extradition must be refused) UK law
requires the offence also to be an offence under UK law for the
purposes of Article 3(2).
20.8 A number of Member States are criticised for
including additional mandatory grounds for refusing extradition.
The law of Malta provides that extradition may be refused where
it would be unjust or oppressive to surrender the person to a
Member State, where that person has been extradited to Malta from
a third State. The Commission points out that there may be such
a refusal even where the third State has agreed to the extradition
and argues that this may be contrary to the Framework Decision
if "it were to go beyond Article 6 TEU or the ECHR".[56]
The Netherlands have provided that extradition will be refused
if its executing authorities find that there can be no suspicion
that the person whose extradition is sought is guilty of the offence
charged. The Commission complains that this is contrary to the
Framework Decision, since it requires an examination of the substantive
case and is also contrary to the principle of mutual trust between
Member States. Portugal has provided for extradition to be refused
if the warrant has been issued on account of political reasons
and Denmark provides for extradition to be refused where there
is a danger that, after his extradition, the person will suffer
persecution for political reasons.
20.9 The Commission criticises the UK for providing[57]
a power for the Secretary of State to direct that a warrant should
not be proceeded with if he believes that the requested person
was acting in the interests of the UK by carrying out functions
conferred or imposed by or under an enactment or was otherwise
not liable under the criminal law of any part of the UK by reason
of an authorisation given by the Secretary of State. The Commission
states that this is contrary to the Framework Decision, since
this ground of refusal is not envisaged and also because the decision
making power is transferred from a judicial authority to the executive.[58]
The UK and the Netherlands are also criticised for introducing
additional grounds for refusal based on international conventions
which have not been set aside by the Framework Decision. The Netherlands
has indicated that it will not apply the Framework Decision to
the extradition of members of crews who are deserters, or to the
surrender of foreign military personnel, where such surrender
takes place by virtue of an agreement with an allied State. The
UK is criticised for including a ground of refusal based on the
International Convention against the Taking of Hostages 1979.[59]
The Commission notes that these conventions and agreements have
not been set aside by the Framework Decision, but argues that
a Member State cannot rely on the provisions of an international
agreement preceding the EC Treaty to avoid its Community law obligations,
and that these doctrines developed under the EC Treaty apply by
analogy to Framework Decisions.
20.10 In relation to the optional grounds under Article
4 for refusing extradition, the Commission notes that practice
has varied. Some Member States have adopted them only in part
or have left a margin of discretion to their judiciary, while
others have made them all mandatory.
20.11 Article 5 provides for extradition to be made
subject to guarantees being provided by the executing State. These
relate to the right of a retrial where there has been a conviction
in the executing State in the person's absence (Article 5(1)),
where a life sentence has been imposed (Article 5(2)) or where
the person who is the subject of the warrant is a national of
the executing State and is to be returned to the executing State
for the purposes of carrying out the sentence (Article 5(3)).
20.12 In relation to the guarantee under Article
5(1), the Commission criticises the UK and Malta for imposing
additional conditions, not provided for in the Framework Decision,
concerning the right of the person extradited to defend himself
in person or be represented by a legal representative of his choice,
or to be given free legal assistance and be entitled to examine
witnesses.[60]
20.13 In relation to the guarantee under Article
5(3) the Commission draws attention to the legislation in the
Netherlands which provides that a Dutch national may be extradited
if it is guaranteed that if the person convicted and imprisoned,
he will be entitled to serve out his sentence in the Netherlands.
The Commission reports that the Netherlands has stated that it
will not extradite a Dutch national to face prosecution for an
offence which is not an offence under Dutch law. The Commission
comments that the Netherlands' position "obviously runs counter"
to the abolition of dual criminality for the offences listed in
Article 2(2) of the EAW.
20.14 Article 6 of the EAW does not define the concept
of judicial authority, but leaves it to each Member State to designate
the authority which is to be competent to issue or execute the
EAW. The Commission report notes that Denmark has designated its
Ministry of Justice and comments that although the Minister of
Justice is regarded as a judicial authority under Danish law "it
is difficult to view such a designation as being in the spirit
of the Framework Decision". It appears to be the case that
in Estonia and Latvia a warrant for the return of a convicted
person is issued by the Ministry of Justice.
20.15 A number of more technical points relating
to implementation by the Member States are made. Those concerning
the UK have been commented on by the Minister in his Explanatory
Memorandum.
20.16 The Commission report recalls that "although
more efficient and faster than the extradition procedure, the
arrest warrant is still subject to full compliance with the individual's
guarantees". However, the reports goes on to state that
"contrary to what certain Member States have done, the Council
did not intend to make the general condition of respect for fundamental
rights a ground for refusal in the event of infringement".
The report concedes that a judicial authority is entitled to refuse
to execute a warrant if it finds that the proceedings have been
vitiated by infringement of Article 6 EU and the constitutional
provisions common to the Member States, but suggests that "in
a system based on mutual trust, such a situation should remain
exceptional".
20.17 The report concludes that the impact of the
EAW is "positive, since the available indicators as regards
judicial control, effectiveness, and speed are favourable, while
fundamental rights are equally observed". However, it also
states that this overall success should not cause sight to be
lost of the effort that is still required by Italy and a number
of other Member States (which include the UK along with the Czech
Republic, Denmark, Estonia, Ireland, Luxembourg, Malta, the Netherlands
and Slovenia) to comply fully with the Framework Decision "and
for the Union to fill certain gaps in the system".
The Government's view
20.18 In his Explanatory Memorandum of 1 September
the Parliamentary Under-Secretary of State at the Home Office
(Mr Paul Goggins) concentrates on the comments which the Commission
has made on United Kingdom law and practice. The Minister points
out that the Commission has made a number of criticisms which
are factually inaccurate, and that it did not circulate the report
to Member States for comment in order to ensure that any inaccuracies
were corrected. The Minister adds that the UK and other Member
States believe that the Commission should circulate such reports
before making them public to avoid inaccurate reports which may
limit their usefulness.
20.19 In relation to the criticism by the Commission
that the UK has not transposed Article 3(2) correctly in that
UK law requires the dual criminality test to be met for double
jeopardy to apply, the Minister replies that the Government believes
the Commission has misunderstood the effect of section 12 of the
Extradition Act 2003 which provides that the judge must be satisfied
that, if the conduct had occurred in the UK, the rule against
double jeopardy would apply, but does not require that the conduct
in question has to satisfy the dual criminality test.
20.20 In relation to the Commission's criticism of
the Secretary of State's power of direction under section 208
of the 2003 Act, the Minister considers that this provision merely
introduces another instance of the privileges and immunities referred
to in Article 20 of the EAW. In relation to the refusal to execute
warrants by reason of international conventions which have not
been set aside by the EAW, the Minister states that it is correct
that section 16 of the 2003 Act allows execution of a warrant
to be refused for reasons of hostage taking considerations in
specific situations where the International Convention against
the Taking of Hostages of 18 December applies. However, the Minister
states that this ground of refusal is necessary to ensure that
the UK can meet its international obligations under the 1979 Convention,
and that the Government would welcome the Commission's further
views on this matter, particularly on whether the 1979 Convention
should have been set aside by the Framework Decision.
20.21 In relation to the guarantees which may be
sought under Article 5 as a condition for extradition, the Minister
replies that section 20 of the 2003 Act requires the judge to
discharge the person requested if he has been convicted in his
absence and the judge is not satisfied that the person would be
entitled to a retrial. The Minister adds that if a person is entitled
to a retrial, then he must also be given the right to defend himself,
to be represented and to examine witnesses.
20.22 In response to the criticism that "in
spite of the general philosophy of Article 5" the UK does
not allow for the direct transmission of an EAW where the exact
location of the person is known, the Minister replies that the
UK, along with a number of Member States, has decided to avail
itself of the provisions of Article 7(2) of the EAW to designate
a central authority for the handling of requests, and does not
consider that this is contrary to the spirit of the Framework
Decision.
20.23 The Minister notes that the Commission report
states that "in spite of Article 24" a decision on postponed
or temporary surrender is a matter for the Ministry of Justice
in the UK (and Estonia and the Netherlands), but points out that
in the UK it is for the judge to decide these questions, and that
this has been made clear in the UK's designations of its judicial
authorities. The Minister makes a number of further detailed responses
to the criticisms made by the Commission.
Conclusion
20.24 We note with concern that the Commission
published its report containing criticisms of Member States without
first circulating the report in draft so that factual inaccuracies
could be addressed. We think this an inherently unfair way of
proceeding. It is also inefficient, since the credibility of the
report is seriously undermined by the inaccuracies which are subsequently
revealed.
20.25 It is apparent that a number of Member States
have had serious difficulties in transposing the list of offences
in Article 2(2) and in abolishing the safeguard of dual criminality
and we recall the conclusion of the previous Committee that the
safeguard of dual criminality had been too lightly discarded and
that the listing of offences in generic descriptions would give
rise to difficulties which had not been thought through.
20.26 It is also evident that a number of Member
States have had concerns about the protection of fundamental rights
and have considered it necessary to make specific provision for
these to be safeguarded. We find the Commission's criticisms in
this regard to be misplaced.
20.27 The report is now effectively spent and
we are content to clear it from scrutiny. However, we take note
of the Minister's detailed rebuttal of the Commission's criticisms
of UK law and look forward to an account by the Minister of the
Commission's further response. We also ask the Minister for an
assessment of the effect of recent legal developments in Germany
and Spain on the continuing viability of the European Arrest Warrant.
52 OJ L 190 of 18.07.02, p.1. Back
53
The Extradition Act 2003 defines a relevant warrant as one 'issued
by a judicial authority' see s.2(2). Back
54
However, s.87(2) Extradition Act 2003 provides that a judge must
order the person's discharge if he decides that his extradition
would not be compatible with the Convention rights within the
meaning of the Human Rights Act 1998. Back
55
The list is set out in Article 2(2) of the EAW. Back
56
This seems rather improbable. Back
57
In s.208 Extradition Act 2003. Back
58
It is worth noting that such provisions may well not have been
necessary if the safeguard of dual criminality had been retained.
Back
59
See s.16 Extradition Act 2003. Back
60
Since these requirements correspond to the minimum requirements
of Article 6 ECHR, it is hard to see why the Commission considers
them a matter for criticism. Back
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