17 Implementation of European Arrest
Warrant
| (27242)
5706/06
COM(06) 8
+ 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 | 24 January 2006
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| Deposited in Parliament | 31 January 2006
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| Department | Home Office |
| Basis of consideration | EM of 20 February 2006
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| Previous Committee Report | None; but see HC 34-vi (2005-06), para 20 (19 October 2005) and 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, but further information requested
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Background
17.1 The European Arrest Warrant (EAW) was adopted by the Council
as a Framework Decision on 13 June 2002.[59]
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.
17.2 On 19 October 2005 we considered a report by
the Commission on the implementation by the Member States of the
EAW. On that occasion, we noted that only Belgium, Denmark, Finland,
Ireland, Portugal, Spain, Sweden and the United Kingdom had met
the required deadline for implementation of 31 December 2003.
We also noted that in July 2005, the German constitutional court
(Bundesverfassungsgericht) had ruled that the law implementing
the EAW was incompatible with the German constitution (Grundgesetz)
and that it appeared that, following this judgment, Spain would
no longer apply the EAW procedure in respect of extradition requests
from Germany.
17.3 We cleared the report from scrutiny, having
taken note of the Minister's detailed rebuttal of the criticisms
made by the Commission of UK implementation. We also noted that
a number of Member States have had serious difficulties in transposing
the list of generic offences in Article 2(2) and in abolishing
the safeguard of dual criminality. We recalled 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. We also noted that a number of Member
States had concerns about the protection of fundamental rights
and had considered it necessary to make specific provision for
these to be safeguarded.
The revised Commission report
17.4 The Commission has now re-issued its earlier
report, to take account of measures taken by Italy to implement
the EAW. The revision takes account only of the position in Italy,
and the Commission indicates that it will submit a second report
in June 2006 evaluating the implementation of the EAW by the Member
States in the light of the conclusions of the JHA Council of 2
June 2005.
17.5 The revised report notes that the EAW has now
been implemented by Italy after a delay of 16 months,[60]
and that by 22 April 2005 all the Member States had transposed
the EAW into their national law.
17.6 In its detailed comments on the implementation
of the EAW, the Commission notes that Italy has reserved the right
to refuse to extradite a person where this would be contrary to
the Italian Constitution, and considers that this may go beyond
the Framework Decision since Article 6 EU refers only to those
constitutional principles which are common to Member States.
17.7 The Commission notes that Italian law provides
for a number of grounds for refusing to execute an EAW, which
in its view, appear contrary to the EAW. These include the case
where, under Italian law, the facts constituting the offence relate
to the exercise of a right or duty, where the victim has given
consent to the act in question, where the person whose extradition
is sought is pregnant or is the mother of a child less than three
years old, where the person is an Italian citizen who was unaware
that the conduct for which he is being extradited was criminal,
where the law of the issuing State does not provide for limits
to pre-trial detention, where the offence is of a political nature
(apart from terrorism) and where the evidence or grounds on which
the EAW is based are insufficient.
17.8 The report notes that, in relation to the guarantees
which may be required from the issuing State as a condition of
extradition, Italy may require an additional guarantee in respect
of fundamental rights or Italian constitutional principles, which
the Commission considers "might be contrary to the Framework
Decision".
The Government's view
17.9 In his Explanatory Memorandum of 20 February
2006 the Parliamentary Under-Secretary of State at the Home Office
(Andy Burnham) notes that the Commission has re-issued its earlier
report to take account of the implementation by Italy of the EAW,
and has asked for revised comments from the Member States.
17.10 In his comments, the Minister refers to the
points made in his previous Explanatory Memorandum in relation
to the criticisms the Commission has made of implementation of
the EAW by the UK.
17.11 The Minister notes that, although the EAW does
not contain any further requirements for a review of its operation,
Member States and the Commission have agreed that it would be
useful to conduct a further review at the end of this year.
Conclusion
17.12 It is evident from the Commission's report
that Italy, along with a number of other Member States, has had
concerns over the protection of fundamental rights of its nationals
when extradited under a European Arrest Warrant and has considered
it necessary to introduce further safeguards in its national law.
17.13 We are content to clear the document, but
we take the occasion to remind the Minister of our request for
an assessment of the effect of legal developments in Germany and
Spain on the continuing viability of the European Arrest Warrant.
59 OJ No. L 190, 18.07.2002, p.1. Back
60
In the Hussain Osman case, a suspect wanted in connection with
bomb attacks in London was extradited from Italy under an EAW
in September 2005. Back
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