Select Committee on European Scrutiny Sixth Report


EUROPEAN ARREST WARRANT


(22625)

12102/01

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
Department: Home Office
Basis of consideration: Minister's letter of 6 November 2001
Previous Committee Report: HC 152-ii (2001-02), paragraph 7 (17 October 2001)
To be discussed in Council: 6-7 December 2001
Committee's assessment: Legally and politically important
Committee's decision: Cleared, but further information requested

Background

  4.1  We considered the first draft of a proposal for the European arrest warrant (which would supplant the current system of extradition between Member States) at our meeting on 17 October. We noted that the proposal would lead to a major change in extradition arrangements with other EU Member States and would lead to the abandonment of traditional safeguards such as the requirement for dual criminality[13] and the speciality rule.[14]

  4.2  We also noted that the Parliamentary Under-Secretary of State at the Home Office (Mr Bob Ainsworth) himself raised in his Explanatory Memorandum of 9 October the question of the implications of the Framework Decision for the operation of the Human Rights Act 1998.

  4.3  In addition to asking him to report to us on the outcome of his consideration of the effect of the proposal on the Human Rights Act 1998, we asked the Minister a number of further questions. These concerned the definition of 'judicial authority'(and, in particular, whether there would be a right to object to a designation made by a Member State), the entitlement to bail of a person subject to provisional release, the conduct in respect of which a person would not be extradited from this country, the extradition of persons who have been tried in absentia, the operation of measures of clemency and whether the proposal should contain an explicit reference to Article 6 of the European Convention on Human Rights (ECHR) as a ground for refusing to surrender an arrested person.

The Minister's letter

  4.4  In his letter of 6 November the Minister explains that a revised text of the proposal has been produced,[15] but that it is presently available only in French. The Minister undertakes to deposit an English version as soon as it is available. Having regard to the urgency with which the proposal is being considered, we make our comments on the Minister's letter in the light of the latest French version of the proposal, a copy of which we have seen.

  4.5  We recognise that some of our earlier questions have been overtaken by the new version. In particular, we note the radical change of approach on the question of dual criminality. The previous version was to apply to all offences carrying a penalty of twelve months or more imprisonment, subject to exceptions listed by Member States under Article 27. The present version contains (in Article 2(2)) a positive list of named offences to which the proposal will apply, regardless of any question of dual criminality. Article 2(3) of the present version also provides for the European arrest warrant to apply to offences which are not on the positive list, but in these cases the execution of the warrant can be made subject to the requirement of dual criminality where the conduct has taken place in whole or in part in the territory of the executing State. Article 2(4) further provides for refusal to execute a warrant on the grounds of dual criminality where the facts relate to abortion, euthanasia, 'morals and sexuality'[16] or to freedom of expression and association.

— definition of judicial authority

  4.6  On the question of the definition of 'judicial authority', the Minister comments as follows:

"The revised draft of the framework decision does not include the original list of definitions contained in Article 3 of 2001/0215 (CNS). The phrase is deliberately generic, so as to allow each Member State to designate an authority within their system. Although this will need to be settled in greater detail, we envisage that the 'judicial authority' for the UK would be the Bow Street Magistrate. The term 'judicial authority' corresponds, as in the 1957 Convention, to the judicial authorities as such and the prosecution services, but not the authorities of the police force. The issuing judicial authority will be the judicial authority that has the authority to issue the European arrest warrant in the procedural system of the Member State.

"With regard to the executing judicial authority, several procedural mechanisms are possible depending whether the individual has consented to their return. It will be the prosecution service or a judge, depending on the procedure applicable in the Member State. The term 'executing judicial authority' will cover one or the other, as the case requires. It must always be the authority that takes the decision to execute the warrant. All Member States will be required to make a central registration of their 'judicial authorities'. There is no supervision or control now over designation, nor do we believe that this is necessary for this instrument."

— provisional release

  4.7  On the question of provisional release, we asked the Minister if he agreed that where a judicial authority has no reason to believe that an arrested person will not escape, continue to commit offences, or destroy evidence and where that person undertakes that he will remain available, then that person would be released on bail in this country and that, having regard to the provisions of Article 5 ECHR, the proposal ought to require release in those circumstances. The Minister replies as follows:

"Article 14 has been replaced by Article 12 of 13425/01, which now refers to procedures regarding the detention to follow national law. The Government does not believe that there should be a presumption either way in bail decisions. They will be made as now by the magistrate, who will take Article 5 considerations into account."

— "exhaustive list of conduct" (i.e. conduct in respect of which a person would not be extradited from this country)

  4.8  The Minister comments as follows:

"Article 27 is now Article 2.4 of 13425/01. The Government has, at this stage in the negotiations, no specific proposals to add to this, as it believes that abolition of the principle of dual criminality would be the most effective way forward, but if such a 'negative list' is agreed, we would support the inclusion of areas like abortion, euthanasia and homosexuality."

— extradition of persons tried in absentia

  4.9  In reply to our concern that the proposal would make it impossible to refuse to surrender a person who had been tried in absentia, the Minister comments as follows:

"Under Section 6(2) of the Extradition Act 1989, a person who is unlawfully at large shall not be extradited if it appears to an appropriate authority that the conviction was obtained in his absence; and that it would not be in the interests of justice to return him on the ground of that conviction. It is therefore not correct to state that currently a conviction in absentia, per se, would preclude extradition. Under current case law, if the fugitive was unaware of the proceedings against him, the only scenario which would meet the interests of justice is a guaranteed re-trial. However, if the fugitive deliberately absented himself then it may not be contrary to the interests of justice to return him or her without a guaranteed re-trial.

"Article 35 of 12101/01 has now been replaced by Article 5 of 13425/01. Article 35 required that where a European Arrest Warrant had been issued on the basis of a judgment in absentia, a new hearing of the case must take place after surrender. The executing judicial authority would be required to inform the fugitive of his or her right to oppose a judgment in absentia and of the procedures for doing so. It would also have to be able to receive the opposition and inform the issuing judicial authority of the opposition. Read in conjunction with the definition of a judgment in absentia set out in Article 3 of 12101/01, this would not extend to someone who deliberately decided not to be present or represented at the original proceedings. Although Article 35 refers to 'hearing', it was our understanding that this would extend to a retrial as the Explanatory Memorandum to 12102/01 (page 19) refers to a trial.

"Article 5 of 13425/01 is different in that it allows the execution of the European Arrest Warrant to be conditional, one of which is the receipt of a sufficient assurance from the issuing judicial authority guaranteeing the fugitive the right to new judgment proceedings (in French, 'une nouvelle procedure de jugement') which safeguards the defendant's rights. Our interpretation of this less prescriptive language is that it would require the production of a sufficient assurance of a guaranteed retrial in circumstances where the fugitive was unaware of the original trial against him, but that this would not always be necessary if the fugitive had deliberately absented himself from his original trial."

— operation of measures of clemency

  4.10  In reply to our question on the effect of Article 37 of the previous proposal (under which the issuing State undertook to 'encourage' the application of measures of clemency to which the arrested person was entitled) the Minister points out that this provision has now been replaced. By virtue of Article 5(2) in the revised text, the surrender of a person liable to a sentence of life imprisonment may be made subject to the provision, in the law of the issuing State, of a periodic review of the sentence.

— explicit reference to Article 6 ECHR

  4.11  We drew attention to the references to the Charter of Fundamental Rights in the recitals to the previous version, which suggested that the Charter in some way 'guaranteed' respect for human rights. On this point, the Minister comments as follows:

"The Charter is a political declaration. It is not part of the treaties. We do not believe that there is any serious difficulty in there being a reference to the Charter in the preamble to the draft decision, although we would need to make clear the Government's position that it is not, in itself, a 'guarantor' of respect for human rights."

  4.12  We also asked the Minister if it would be preferable to include, in the safeguard provision in Article 49 of the previous text, a reference to Article 6 ECHR 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. The Minister replies as follows:

"The Government does not believe that there is a need for explicit references to individual articles of the ECHR in this instrument. The preamble to the Framework Document makes reference to the ECHR, and there is provision for deferral of surrender, but there is no explicit bar on the face of the draft proposal to surrender based on human rights considerations."

Conclusion

  4.13  We thank the Minister for his helpful reply to our questions, and for informing us of the progress of negotiations on this Framework Decision. We look forward to the early deposit of the latest version.

  4.14  We regret to note that there is no further clarification of what is meant by the term 'judicial authority'. Indeed, in the current version there is no definition at all. We note the Minister's view that "the term 'judicial authority' corresponds, as in the 1957 European Convention on Extradition, to the judicial authorities as such and the prosecution services, but not the authorities of the police force". We agree that orders made only by police authorities should not be recognised and enforced under the Framework Decision, but ask the Minister how this result is to be achieved where there is no agreed definition of 'judicial authority', where the 1957 Convention to which the Minister refers does not use the term, and where there is to be no supervision or control over the designations made by Member States.

  4.15  We also ask the Minister to explain the extent to which the Framework

    Decision would require the execution in the United Kingdom of warrants issued by prosecuting authorities, without any judicial involvement in the issuing State, and if he considers that the principle of mutual recognition and enforcement is still appropriate in respect of decisions by prosecuting authorities.

  4.16  In relation to the question of provisional release, we ask the Minister to confirm that implementation of the Framework Decision will not require any change to the presumption of release in the Bail Act 1976.

  4.17  We are grateful for the Minister's explanation of the new provisions on the return of persons who have been tried in absentia. We note that execution of a warrant is to be conditional, in all cases of a judgment in default, on receipt of a sufficient assurance from the issuing judicial authority to new judgment proceedings guaranteeing the rights of the defence. However, we also note that the Second Additional Protocol to the 1957 European Extradition Convention makes the return of the person subject to an assurance of a retrial. We ask the Minister if he agrees that this formulation is to be preferred, as it will preserve the right (presently contained in section 6(2) Extradition Act 1989) to refuse to return a person where this would not be in the interests of justice.

  4.18  We understand that the version of the proposal we considered on 17 October has now been superseded. On this basis and on the assurance given by the Minister that he will deposit a new text as soon as possible, we are content to clear the document. We shall, nevertheless, expect a reply to the points we have raised on the Minister's letter.


13  The requirement that the conduct which is the subject of the extradition request should be regarded as criminal in both the requesting and the extraditing State. Back

14  The principle in extradition law under which a person may not be prosecuted in the receiving State for any offence other than the one for which he was extradited. Back

15   13425/01. Back

16  'Aux moeurs et la sexualité' in the French version. Back


 
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Prepared 27 November 2001