Select Committee on European Scrutiny Second Report


COM(01) 522

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
Document originated: 19 September 2001
Forwarded to the Council: 19 September 2001
Deposited in Parliament: 24 September 2001
Department: Home Office
Basis of consideration: EM of 9 October 2001
Previous Committee Report: None
To be discussed in Council: 6-7 December 2001
Committee's assessment: Legally and politically important
Committee's decision: Not cleared; further information requested


7.1 The European Council met in extraordinary session on 21 September 2001 to analyse the international situation following the terrorist attacks in the United States on 11 September. The European Council approved a plan of action in which it signified its agreement to the introduction of a European arrest warrant and the adoption of a common definition of terrorism.

7.2 The European arrest warrant would supplant the current system of extradition between Member States.[7] In the European Council's view, extradition procedures do not at present reflect the level of integration and confidence between Member States of the European Union. Accordingly, the European arrest warrant would allow wanted persons to be handed over directly from one judicial authority to another. In parallel, fundamental rights and freedoms would be guaranteed.

7.3 The European Council directed the Justice and Home Affairs Council to 'flesh out' the agreement made by the European Council and to determine the relevant arrangements as a matter of urgency and at the latest at its meeting on 6 and 7 December 2001.

The draft Framework Decision

7.4 The Framework Decision applies to criminal offences in general and is not limited in scope to terrorist offences. It would apply in respect of any offence where there has been a conviction imposing a sentence of at least four months' imprisonment, or where on conviction a sentence of at least twelve months' imprisonment may be imposed. In respect of all such offences, a 'European arrest warrant' procedure would replace the existing arrangements for extradition between the Member States.

7.5 The proposal is based on the principle of mutual recognition. Accordingly, if a judicial authority in one Member State orders the arrest of a person, either in respect of a offence for which a person has been convicted, or in respect of an offence for which he is to face trial, then the order for arrest is to be recognised and executed throughout the European Union. As the Commission concedes, the system of the European arrest warrant 'can function only where there is perfect trust between the Member States as to the quality and reliability of their political and legal systems'.[8] The need for such mutual trust and confidence is particularly marked where, as is usually the case with a warrant for arrest, the accused person will not have had any opportunity to contest the issues in adversarial proceedings.

7.6 The procedure would operate between the judicial authorities of the Member States, and would thus displace the stages in current extradition procedure where decisions are taken by Ministers. It would also remove any requirement of dual criminality,[9] and the speciality rule,[10] both of which are features of the current extradition arrangements between Member States. Certain limited grounds for non-execution of the warrant are set out in Articles 27 to 34. There are further grounds for refusing to surrender a person under Articles 35 to 39, but these grounds do not allow a Member State to refuse to surrender an accused person solely on the ground that he is a national of that State.

7.7 The proposal has the following key features.

7.8 Chapter I (Articles 1 to 6) sets out the scope and general principles of the European arrest warrant system. It is to apply to final judgments in criminal proceedings and judgments in absentia which involve a deprivation of liberty or a detention order of at least four months in the issuing state. It is also to apply as to other enforceable judicial decisions in criminal proceedings which involve deprivation of liberty and relate to an offence which is punishable by deprivation of liberty or a detention order for a maximum period of at least twelve months in the issuing state. A warrant is to be issued only by a 'judicial authority', which is referred to in the proposal as a 'judge or public prosecutor'. Such authorities are to be designated by each Member State (Article 4).

7.9 Chapter II (Articles 7 to 25) is concerned with procedure. Article 11 provides that the person who is arrested pursuant to a European warrant 'shall have the right to be assisted by a legal counsel, and, if necessary by an interpreter'. Article 14 provides for the provisional release of a person arrested under a European warrant. If the executing authority has reason to believe that the person arrested will not escape, continue to commit offences or destroy evidence, it may decide to release the person until a later date fixed by agreement with the issuing authority. Articles 15 to 18 provide for an examination by the executing judicial authority of the arrest warrant and for a hearing. The hearing will consider such matters as whether the arrested person consents to execution of the warrant, or whether he falls within a category of case in respect of which the which the executing state has declared it will not execute European arrest warrants, or where there are other grounds for refusal, as provided for in Articles 27 to 34.

7.10 The executing state must reach a decision on whether to execute the warrant within 90 days of arrest (Article 20). If no decision is taken within that time, the arrested person is to be released, unless there is some other ground for his detention (Article 21). The person is to be surrendered to the issuing state as soon as possible, and in any event within 20 days of the decision to execute the warrant.

7.11 Chapter III (Articles 26 to 32) sets out grounds on which the executing state may refuse to execute the warrant. Dual criminality is not required for the execution of a warrant, but the executing state may refuse to execute the warrant where, in respect of an 'exhaustive list of conduct', it considers that it would be contrary to the fundamental legal principles of that state to execute the warrant (Article 27).

7.12 A state may also refuse to execute the warrant in respect of an act which is not considered an offence under its own law, and which act did not take place, at least in part, in the issuing state (Article 28). Execution is to be refused where the executing state has passed final judgment on the arrested person for the offence for which the warrant has been issued (Article 29.1). Execution is also to be refused where the judicial authorities in the executing state have decided not to institute or to terminate proceedings in respect of the offence (Article 29.2). The executing state may refuse to execute a warrant in respect of an offence covered by an amnesty granted in the executing state (Article 30). Further grounds for refusal relate to immunities (Article 31) and a failure by the issuing state to provide necessary information (Article 32).

7.13 Chapter IV sets out two additional grounds for refusal. The first (Article 33) concerns a 'principle of integration' and allows the executing state to refuse to surrender the person if he consents to serve, in the executing state, the sentence imposed by the issuing state and 'this person would have better possibilities of reintegration in the executing Member State'. Execution may also be refused if it is possible for the accused person to take part in proceedings in the issuing state by means of a video conferencing system, and the issuing and executing states accept such proceedings (Article 34).

7.14 Chapter V (Articles 35 to 42) deals with 'special cases'. Article 35 provides that where a warrant is issued in respect of a person who has been sentenced in absentia, a new hearing of the case is to take place in the issuing state after the surrender. Article 36 allows a warrant to be executed subject to a condition that the person is returned to the executing state to serve his sentence there. Article 37 is concerned with cases where the offence is punishable by life imprisonment. It allows the execution of the warrant to be made subject to the condition that the issuing state 'undertakes to encourage the application of any measures of clemency to which the person is entitled under its national law and practice'. Article 38 allows deferment on humanitarian grounds and Article 39 provides for deferment where proceedings are under way, or a sentence is being served, in the executing state.

7.15 Article 41 provides that a person who has been surrendered pursuant to a warrant may be prosecuted for offences other than those mentioned on the warrant, unless those offences are in the 'exhaustive list of conduct' under Article 27, or in a case covered by Article 28 or 30. Article 42 provides that the executing state shall, 'insofar as its law permits', seize and hand over property required as evidence, or which has been acquired by the accused person as a result of the offence.

7.16 Chapter VI (Articles 43 and 44) provide for the termination, as between EU Member States, of a number of existing European extradition agreements and for a number of provisions of the Schengen Implementing Convention to cease to apply from 1 July 2004. Article 43(2) provides that the Framework Decision is not to affect the application of 'simplified proceedings or conditions' in existing bilateral or multilateral agreements.

7.17 Chapter VII (Articles 45 to 48) deals with the transit of persons under arrest, the transmission of documents, expenses and languages. The warrant may be sent in the official languages of the issuing or the executing state (Article 47.1).

7.18 Chapter VIII (Article 49) contains a 'safeguard' clause, under which a Member State may suspend the operation of the Framework Decision with regard to a 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 EU Treaty'. Such suspension is limited to six months, unless by that time the procedure under Article 7 EU has been initiated.

The Government's view

7.19 In his Explanatory Memorandum of 9 October, the Parliamentary Under-Secretary of State at the Home Office (Mr Bob Ainsworth) points out that the proposal closely resembles the proposals set out in a Home Office consultation document "The Law on Extradition: a Review" and the framework agreed for a bilateral extradition agreement with Spain. The Minister comments further:

    "A slimmed down procedure for UK/EU extradition was recommended in the consultation document, 'The Law on Extradition: A Review'. The proposals made in the Framework Decision complement much of the thinking in this document. They are also in line with principles agreed as the basis for negotiating an updated treaty with Spain announced by the then Home Secretary in March 2001.

    The major changes recommended were to place all parts of the extradition decision in the hands of the courts, to cut back on the number of opportunities open to a fugitive to oppose their extradition, as well as to remove many of the grounds on which a person can argue against being extradited."

7.20 The Explanatory Memorandum gives a detailed description of the provisions of the draft Framework Decision. The Minister refers to the abolition of dual criminality, of the speciality rule and of the bar on the extradition of nationals of the extraditing state as major reforms. The Minister points out that certain offences may be designated by Member States for which surrender will not take place. He indicates that these are likely to be acts which are decriminalised in some countries, but not all, such as euthanasia or abortion, and that the argument would be that 'where a country has chosen to decriminalise a particular offence it would be contrary to the fundamental principles of their legal system to have to surrender an individual for that offence'.

7.21 On the extradition of a state's own nationals, the Minister comments as follows:

    "Extradition may no longer be refused for own nationals. 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."

7.22 The Minister also draws attention to the implications of the proposal for human rights and for asylum seekers:

    "The Framework Document may also, however, have implications for the operation of the Human Rights Act. Although human rights are mentioned within the Framework Document, there is no explicit bar to surrender based on Human Rights considerations. The question of the compatibility of the Framework Document with the Human Rights Act is under consideration, and this policy area is currently unresolved.

    "Article 20 states that surrender must take place within 90 days. Currently, asylum claims are becoming more frequent in extradition cases, and can cause long delays. Resolving this difficulty is currently under consideration. This area is also inter-related with that of Human Rights, especially Article 3 of the ECHR."[11]


7.23 This proposal would lead to a major change in extradition arrangements with EU Member States, with the abandonment of traditional safeguards such as the requirement for dual criminality and the speciality rule, as well as removing the scope for decision by responsible Ministers. We note that the Minister acknowledges that the compatibility of the proposal with the Human Rights Act 1998 is under consideration and that this is a policy area which is unresolved. We therefore ask the Minister to report to us the outcome of his consideration of this important question.

7.24 In addition, we have a number of more detailed questions to put to the Minister before we can consider clearing the document.

7.25 We ask the Minister to explain in more detail what is meant by a 'judicial authority' as defined in Article 3, and to state if the proposal would allow him to object to designations of such authorities by other Member States. We assume that the proposal has no application to the case where a person is arrested without warrant, but would be grateful if the Minister would confirm that this is so.

7.26 We note the provisions on provisional release in Article 14, but ask the Minister if he agrees that a person satisfying those conditions would be (and not merely might be) entitled to bail in this country, and that having regard to Article 5 of the European Convention on Human Rights the Framework Decision ought to require release in those circumstances.

7.27 We ask the Minister to state what proposals he has for inclusion in the 'exhaustive list of conduct' under Article 27 in respect of which a European arrest warrant would not be executed in this country.

7.28 We understand that, unlike current UK extradition arrangements, it will not be possible under the Framework Decision to refuse to surrender a person who has been convicted in absentia. We note that Article 35 requires a 'new hearing of the case' in such circumstances, but we would be grateful if the Minister would confirm that the provision will require a retrial, and that a hearing simply to confirm the conviction will not be sufficient.

7.29 We would be grateful for a fuller explanation by the Minister of the effect of Article 37, and in particular of the purpose of an undertaking by a Member State to 'encourage' the application of any measures of clemency to which the person is already entitled under the law of that state.

7.30 We ask the Minister if he considers the references to the Charter of Fundamental Rights in the recital (1) and (20) of the preamble to be appropriate. We also ask , in relation to the safeguard clause in Article 49, if it would be preferable to refer to Article 6 of the European Convention on Human Rights so that a Member State could refuse to surrender a person to a country where the Article 6 guarantees of the fairness of trials were not being sufficiently observed.

7.31 We ask the Minister to reply to each of these questions in time for us to examine the document again before any decisions are taken. In the meantime we shall hold the document under scrutiny.

7  As to which, see the Council of Europe European Extradition Convention of 1957, together with the Protocols of 1975 and 1978, the 1977 European Convention on the suppression of terrorism, the 1995 Convention on the simplified extradition procedure between Member States of the European Union, and the 1996 Convention on extradition between Member States of the European Union.  Back

8  See the explanatory note to Article 49. Back

9  The requirement that the conduct be criminal in both the requesting state and the extraditing state. Back

10  The principle in extradition law under which a person may not be prosecuted for any offence other than the one for which he was extradited. Such a requirement is contained, for example, in Article 14 of the 1957 European Convention on Extradition. Back

11  "No one shall be subjected to torture or to inhuman or degrading treatment or punishment." Back

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