19 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 | — |
| Department | Home Office |
| Basis of consideration | Minister's letter of 28 March 2006
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| Previous Committee Report | HC 34-xx (2005-06), para 17 (1 March 2006); and 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 (decision reported 1 March 2006)
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Background
19.1 The European Arrest Warrant (EAW) was adopted by the Council
as a Framework Decision on 13 June 2002.[58]
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.
19.2 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 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. We also noted that a number
of Member States had experienced serious difficulties in transposing
the list of generic offences in Article 2(2) and in abolishing
the safeguard of dual criminality, notably in relation to the
extradition of a State's own nationals. 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.
19.3 On 1 March 2006 we considered a re-issued report
which the Commission had revised to take account of measures taken
by Italy to implement the EAW. The Commission noted that Italy
had reserved the right to refuse to extradite a person where this
would be contrary to the Italian Constitution, and on a number
of additional grounds including the case where the evidence or
grounds on which the EAW is based are insufficient.
19.4 We noted that it was evident from the Commission's
report that Italy, along with a number of other Member States,
had had concerns over the protection of fundamental rights of
its nationals when extradited under a European Arrest Warrant
and had considered it necessary to introduce further safeguards
in its national law. We reminded 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.
The Minister's reply
19.5 In his letter of 28 March 2006 the Parliamentary
Under-Secretary of State at the Home Office (Andy Burnham) replies
to the request we made for an assessment of the continuing viability
of the European Arrest Warrant. The Minister begins by stating
that he is unable to comment on bilateral co-operation between
Germany and Spain, but informs us that amending legislation to
give effect to the EAW has been prepared in Germany and that it
may be adopted in April of this year.
19.6 The Minister also informs us that there are
no current plan to amend the EAW. The Minister nevertheless acknowledges
that "all Member States have experienced practical difficulties
with the application of Articles 4(6) and 5(3) of the Framework
Decision which allow Member States to impose certain conditions
where the extradition of one of their own nationals has been requested".
The Minister explains that these provisions allow the executing
State to insist that their own nationals serve any custodial sentence
within the territory of the executing State, but that the EAW
is silent on the mechanisms for the transfer of custodial sentences
from one Member State to another. The Minister refers in this
context to the draft Council Framework Decision on the application
of the principle of mutual recognition of judgments in criminal
matters imposing custodial sentences or measures involving deprivation
of liberty,[59] which
he understands will clarify this issue.
Conclusion
19.7 We regret that we did not find the Minister's
reply to be particularly informative in relation to the current
application of the EAW between Spain and Germany. We note that,
in evidence to our sister Committee in the Lords on 18 January
2006 the Minister did feel able to express the view that Spain
took a "very firm view" that extradition must be based
on reciprocity and that he had "considerable sympathy"
with that view.[60]
19.8 We have already cleared the document from
scrutiny, but we shall look forward to the Minister's comments
on the Commission's second report on the operation of the EAW,
which we understand will be published later this year.
58 OJ No. L 190, 18.07.2002, p.1. Back
59
See also (26317) Draft Council Framework Decision on the European
enforcement order and the transfer of sentenced persons between
the Member States of the EU, which we are holding under scrutiny
HC 38-xv (2004-05), para 6 (6 April 2005). Back
60
HL Paper 156 (2005-06), Q57. Back
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