Select Committee on European Scrutiny Seventh Report


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: None; but see (22625) 12102/01: HC 152-ii (2001-02), paragraph 7 (17 October 2001), and (22593) 10912/01: HC 152-vi (2001-02), paragraph 2 (14 November 2001)
To be discussed in Council: 6-7 December 2001
Committee's assessment: Legally and politically important
Committee's decision: Not cleared; further information requested


5.1  We considered the first draft of a proposal for the European arrest warrant (which would supplant the current system of extradition between Member States) on 17 October.[15] 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[16] and the speciality rule.[17]

5.2  We raised a number of points on that first draft. These concerned the effect of the proposal on the operation of the Human Rights Act 1998, the definition of 'judicial authority' as an authority entitled to issue and execute a warrant, 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.

5.3  The Parliamentary Under-Secretary of State at the Home Office (Mr Bob Ainsworth) replied to our questions in his letter of 6 November. The Minister explained that a revised text of the proposal had been produced and undertook to deposit the English version of that text as soon as possible. Having regard to the urgency with which the proposal is being considered, we considered the Minister's letter on 14 November[18] in the light of the latest version, which then existed only in French and a copy of which we had seen.

5.4  We raised a number of questions which appeared to us to arise from the Minister's letter and which had not been resolved by the then latest French text. We reiterated our concern over the absence of any definition of 'judicial authority', and asked whether a principle of mutual recognition ought to apply to decisions taken by prosecution authorities without any judicial involvement in the issuing State, whether the proposal would have any effect on the operation of the Bail Act 1976 and whether there was any sufficient guarantee of a retrial in the issuing State in cases where a person was surrendered following a trial held in absentia.

5.5  As promised in his letter of 6 November, the Minister has now deposited the latest English version of the proposal[19] and submitted an Explanatory Memorandum on 16 November.

The revised proposal

— general principles

5.6  The revised proposal is a Presidency text of 31 October setting out the results of discussions since submission of the Commission proposal. We recall from our last consideration of this matter that there has been a radical change of approach on the question of dual criminality. The previous version was to apply to all offences carrying a penalty of imprisonment of twelve months or more, subject to exceptions listed by Member States. The present version (in Article 2) distinguishes three classes of offence for the purpose of dual criminality, abolishing the requirement only in respect of the first class.

5.7  Article 2(1) of the text sets out the basic material scope of the measure by providing that it is to apply to any offence punishable under the law of the issuing State[20] by a custodial sentence or a detention order of at least twelve months, or in the case of a conviction, where the sentence imposed is of at least four months.

5.8  Article 2(2)) sets out a positive list of named offences to which the proposal will apply, 'without verification of the double criminality of the action'. The offences are not defined, but are described by reference to acts which are criminal under the law of the issuing State. Some of these acts, such as terrorism, money-laundering or trafficking in drugs or human beings are or will be defined at EU level, whilst others, such as murder or grievous bodily injury, are referred to in the Europol Convention.[21] This leaves a number of offences which are not defined at EU level, but where the precise scope of the offence will vary from Member State to Member State. For example, the list includes a reference to the offences of 'racism and xenophobia'.

5.9  Article 2(3) provides for the European arrest warrant to apply to offences which are not on the positive list in Article 2(2), 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 that the execution of the warrant may be made subject to the condition of dual criminality in cases where the acts relate to abortion, euthanasia, morality, sexuality or freedom of expression and association.[22]

5.10  Article 3 sets out grounds on which an executing State must refuse execution of a warrant. These grounds cover the case where the offence is committed on the territory of the executing State and is covered by an amnesty there. They also cover the case where the person has been finally judged in a Member State and where, if sentenced, the sentence has been served, is currently being served, or may no longer be served under the law of the sentencing State, or where another final judgment in the sentencing State prevents further proceedings. Finally, execution of a warrant must be refused if the person may 'no longer,[23] due to his age, be held criminally responsible for his acts under the law of the executing State'.

5.11  Article 4 sets out grounds on which an executing State may refuse execution of a warrant. Accordingly, a State may refuse execution if the requirement of dual criminality is not met in the case of an offence falling under Article 2(3),[24] where the person is being prosecuted in the executing State for the same act on which the European arrest warrant is based, or where the judicial authorities in the executing State have decided either not to prosecute or to 'halt the proceedings' in respect of the offence on which the warrant was based.

5.12  Article 5 sets out a number of guarantees which are to be given by the issuing State in cases of judgments given in absentia, in cases where a sentence of life imprisonment may be imposed, or where the person is a national or resident of the executing State.

5.13  Where the arrest warrant is issued for the purposes of executing a custodial sentence or detention order 'passed by an in absentia judgment',[25] Article 5(1) provides that the surrender may be made subject to the provision by the issuing judicial authority of assurances deemed adequate to guarantee the person who is the subject of the warrant 'the right to a new judgment procedure which safeguards the rights of the defence'. The concept of 'a new judgment procedure' is not defined. It would seem to include, but not require, a right to a retrial. This is to be compared with the Second Additional Protocol to the 1957 European Extradition Convention which makes the return of a person subject to an assurance of a retrial. Under the provisions of Article 5(1) as they now stand, it is by no means clear that the executing judicial authority may insist on a retrial as a condition of returning the arrested person.[26]

5.14  In cases where the arrest warrant is issued for an offence which carries a sentence of life imprisonment, Article 5(2) provides that the surrender may be made subject to the law of the issuing State allowing 'periodic appeal by the sentenced person with a view to a review of execution of the sentence or order'.

5.15  Where the person who is the subject of the warrant is a national or resident of the executing State, Article 5(3) provides that the surrender may be made subject to a condition that the person is returned to the executing State to serve his sentence.

5.16  Article 6 addresses the central question of who is to issue and enforce a European arrest warrant. Article 6(1) provides that the 'issuing judicial authority' shall be the issuing State authority which is competent to issue an arrest warrant by virtue of the law of the issuing State. Article 6(2) similarly provides that the executing judicial authority shall be the issuing State authority which is competent by virtue of the law of the executing State. Article 6(3) requires each Member State to inform the General Secretariat of the Council of the competent authority under its law. The question of who is to qualify as a 'judicial authority', whether in the issuing or executing State, is not defined in the Framework Decision but is a question which is remitted entirely to the relevant national law. On its face, the Framework Decision seems to require Member States to accept each other's determinations of judicial authorities under its law, but does not impose any minimum standards as to independence from police forces or prosecuting authorities.

5.17  In his letter of 6 November describing this provision, the Minister tells us that "the phrase is deliberately generic, so as to allow each Member State to designate an authority within their system." He further explains that "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." It may well be the intention that police forces should not be designated as a 'judicial authority' for the purposes of the Framework Decision, but there seems to be no provision to prevent this. Moreover, once a designation is made, it would seem that it must be recognised by other Member States, as there is no provision for entering a reservation or otherwise objecting to designation.[27] Indeed, as to this latter point, the Minister comments that:

    "There is no supervision or control now over designation, nor do we believe that this is necessary for this instrument."

5.18  The execution of a warrant is a matter for the executing 'judicial authority'. The Minister comments in his letter to us of 6 November that this:

    "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."

5.19  It therefore seems possible for a 'prosecution service' rather than a judge to take the decision under Article 15 to execute the warrant in the executing Member State. Such a decision would appear also to involve a decision to detain the person for a period of up to 10 days before he is surrendered (Article 18). The 'judicial authority' in this sense will already have taken "all necessary measures to ensure that the person is detained or is kept in detention" under Article 12.

5.20  Articles 7, 8 and 9 deal with the transmission of a warrant, the designation by Member States of a central authority, and the content and form of the warrant respectively.

— Surrender procedure

5.21  Chapter II (Articles 10 to 20) is concerned with surrender procedure. Article 10 requires the issuing judicial authority to instigate an alert through Interpol or the SIS,[28] and for the authority carrying out the arrest to inform the issuing and executing judicial authorities. Article 11 provides for the transmission of the warrant.

5.22  Article 12 is the central provision on recognition. It provides that the competent judicial authority of the executing State is to 'recognise all European arrest warrants, without any further formality being required' and to take all necessary measures to detain the person or to keep him detained 'in the same way as for an arrest warrant issued by any competent authority of the executing State'.[29]

5.23  Article 13 provides that the requested person is to have, from the moment of his arrest, a right 'to be assisted by a legal counsel, and, if necessary, by an interpreter' in accordance with the national law of the State in which he was arrested. Article 14 makes provision for those cases where the arrested person consents to his surrender. Consent is to be noted under conditions which show that the person 'has expressed it voluntarily and in full awareness of the resulting consequences'. Consent is to be recorded in accordance with the procedure laid down by the law of executing State. It is to be worded 'in such a way as to show that it was expressed voluntarily and in full awareness'.[30] However, consent once given may not be revoked (Article 14(4)), and its effect is to allow surrender of the person without further formality (Article 14(5)).

5.24  Article 15 provides for the executing judicial authority to reach a decision on whether to execute the warrant. By virtue of Article 15(3) all Member States may provide that the decision of the executing judicial authority may be subject to 'a single legal appeal',[31] the arrangements for which are to be laid down by national law.

5.25  Article 16 addresses the question of multiple requests for the surrender of the same person. In such a case, the executing authority is to make its decision 'with due consideration of all the circumstances and especially the relative seriousness and place of the offences, and the respective dates of the European arrest warrants'. Article 16(2) provides that such multiple requests may be submitted to Eurojust,[32] which is to deliver its opinion as soon as possible. In the case of extradition requests by third countries, Article 16(3) provides for a decision by the executing authority taking into account all the circumstances, including in particular those mentioned in the applicable convention. It is apparent from this that no priority is to be given, on any automatic basis, to the European arrest warrant.

5.26  Article 17(1) provides for a final decision on execution of a warrant within five days in cases of consent, and thirty days in all other cases. Article 17(4) provides that, in the absence of a decision within the above time limits, the executing judicial authority is to order the surrender of the person to the issuing State. It is further provided that any appeal still pending in the executing State is not to prevent surrender. In such a case, the surrender is to be conditional and the person must be returned to the executing State if the final decision is to refuse surrender. The one exception to the duty to surrender notwithstanding any appeal is the case where the issuing judicial authority has failed to provide sufficient information under Article 15(2).

5.27  Article 18 provides for time limits of ten days for surrender of the person, following his consent or a decision to execute the warrant.[33] Article 18(4) allows an executing State temporarily to defer surrender if there are substantial grounds for believing that execution of the warrant would manifestly endanger the person's life or health because of 'his age or state of health or because of other peremptory humanitarian reasons.' By virtue of Article 18(5) a person held in detention is to be released on expiry of the time limits referred to in Article 18(3) to (5) 'unless the delay is linked to his personal situation'[34].

5.28  Article 19 permits an executing judicial authority to adjourn the surrender of the requested person, so that he may be prosecuted in the executing State, or serve a sentence already passed, for an act other than that referred to in the warrant. Article19(2) provides that instead of adjourning the surrender, the executing State may 'temporarily hand over' the requested person under conditions to be established by mutual agreement between the authorities concerned. Article 20 provides for the transit of a requested person through the territory of a Member State.

— Effects of the surrender

5.29  By virtue of Article 21, the issuing State may deduct any period of detention arising from the execution of a warrant from the total period of detention.

5.30  Article 22 abolishes the principle of speciality by providing that a person surrendered pursuant to a warrant may be prosecuted, sentenced or detained in the issuing State for an offence other than the one for which the warrant was issued. However, where the offence is one which is referred to in Article 2(3) or (4) (i.e. an offence which is not on the positive list, and where dual criminality may still be required), any prosecution, sentence or detention for an offence not covered by the warrant shall be subject to the agreement of the executing State.

5.31  Article 23 is concerned with the further surrender of a requested person by the issuing Member State to another Member State or to a third country. In the case of a surrender to another Member State, Article 23(1) provides that the consent of the executing State is required if the offence for which the other Member States is seeking surrender is one of the offences referred to in Articles 2(3) and (4), 'with regard to the executing State of the first European arrest warrant'.[35]

5.32  Article 23(2) provides a similar rule in respect of surrender to a third country. It further provides that the consent of the executing State must be obtained if the action for which the person is being extradited to the third State is punishable by the death penalty in that State.[36]

— General and final provisions

5.33  By virtue of Article 24, a Member State may make a declaration suspending the application of the Framework Decision with regard to another 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 Treaty on European Union in that Member State'. Such a unilateral suspension is to operate for no longer than six months, unless the procedure under Article 7 EU[37] has been initiated within that time.

5.34  Apart from this provision, there is no express provision permitting a Member State to refuse to execute a warrant, or to surrender a person, on the grounds that this would involve the Member State in a breach of the European Convention on Human Rights. In his letter of 6 November the Minister stated that the Government did not believe that there was a need for explicit references to individual articles of the ECHR in this instrument. He further stated that the preamble to the Framework Decision made reference to the ECHR and that there was provision for surrender to be deferred, but that there was no explicit bar on the face of the draft proposal to surrender based on human rights considerations.

5.35  Article 25 provides that the Framework Decision will prospectively replace existing extradition conventions between the Member States, but that it will not affect the application of 'simplified proceedings or conditions' existing in bilateral or multilateral agreements. Articles 26 to 28 are concerned respectively, with transitional provisions, implementation and entry into force.

The Government's view

5.36  In his Explanatory Memorandum of 15 November the Parliamentary Under-Secretary of State at the Home Office (Mr Bob Ainsworth) explains that primary legislation will be needed in the UK to enable the proposals contained in the draft Framework Decision to be put into effect. The Minister comments as follows on the main features of what he describes as a 'slimmed-down surrender procedure':

    "Traditional extradition procedures are abolished within the EU area of freedom, justice and security. Instead, a European Arrest Warrant is created which must be recognised by the judicial authorities of every Member State. It serves as a request for location, arrest, detention and surrender of a fugitive.

    "The warrant can only be executed by a judicial authority in the executing state, and there is virtually no involvement for the executive in the decision-making process. The central authority (the Home Office) will have a small role to play in transmitting documents, requests for additional information and facilitating translations and can be involved in some limited elements of the decision-making process.

    "The warrant must be executed, and the fugitive surrendered, unless one of a very small number of exceptions can be shown to apply. Strict time limits will seek to ensure that the whole process takes place very rapidly. The finalisation of what time limits will apply (draft Article 17) is still under negotiation.

    "Major reforms include the removal of dual criminality, specialty and of the bar on the extradition of own nationals. (Dual criminality is the principle whereby, for a crime to be extraditable, it must be an offence in both jurisdictions party to the extradition request. Specialty is the principle which states that a person extradited may only be tried for the offences for which they were extradited.) Although the current draft Article 2 proposes the removal of the test of dual criminality for a wide range of serious offences, and a list of offences for which dual criminality and specialty would be retained, this is still a point under negotiation. The UK supports proposals to remove the dual criminality test, and believes that the widespread bar to the extradition of own nationals should not apply within the EU.

    "Mandatory bars to surrender contained in the Framework Document are set out in draft Article 3, and optional grounds are set out in draft Article 4. There are provisions relating to temporary surrender, and what happens in the case of multiple requests being received for the same person.

    "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.

    "The Framework Decision guarantees certain rights for fugitives. These are the automatic right to a lawyer and, if necessary, to an interpreter from when they are arrested onwards. Decisions on detention or bail are to be made under each Member States' national law."

5.37  In relation to human rights considerations, the Minister repeats the substance of his letter to us of 6 November. He adds the following comment:

    "The Government is satisfied that decisions made under the Framework Decision will be ECHR compliant and the UK implementing legislation will be compatible with Convention rights. The question of compatibility with ECHR rights will be addressed again by the Government as part of the legislative process to implement the Framework Decision."


5.38  We repeat our concern that there is no agreed definition of the term 'judicial authority' either in relation to the issuing of a European arrest warrant, or in relation to its execution. We consider it essential that the orders which Member States are being required to recognise and enforce should have been made, or at least approved, by a body which was clearly judicial in its functions and entirely independent of the police. At present, we see no provision in the proposal which clearly prevents the recognition and enforcement of an order made only by a police force, and we ask the Minister if he agrees that this is unacceptable.

5.39  We also repeat our concern that there is no clear guarantee of a retrial in cases where a person is surrendered following a trial held in absentia. This seems to us to mark a regression from the standards established under the Second Additional Protocol to the European Extradition Convention, and we ask the Minister if he agrees that the executing State must be entitled to make surrender conditional on a guarantee of a retrial, and not merely a right to 'a new judgment procedure'.

5.40  In addition to these major issues of principle, we have noted a number of technical problems with the proposal, which are no doubt a reflection of the haste with which it is being prepared. We draw particular attention to the following:

    (i) the absence of definition of many of the offences in Article 2(2); in particular we would be grateful for an explanation from the Minister as to how the domestic courts will recognise whether the offence of 'racism and xenophobia' has been committed,

    (ii) which system of law will be used to determine whether an act relates to any of the matters in Article 2(4) (abortion, euthanasia, morality, sexuality or freedom of expression and association),

    (iii) whether the provision in Article 3(3) is meant to refer to an upper or lower age limit for criminal responsibility,

    (iv) the meaning of 'in absentia judgment' in Article 5(1).

5.41  We look forward to the Minister's reply on the technical points, as well as on the issues of principle we have identified, and in the meantime we shall hold the document under scrutiny.

15  (22625) 12102/01; see headnote to this paragraph. Back

16  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

17  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

18  (22593) 10912/01; see headnote to this paragraph. Back

19  This is an English translation of the French text we took into account on 14 November. Back

20  That is, the State seeking extradition. Back

21  OJ No. C 316, 27.11.95, p. 2. Back

22  It is not clear if the characterisation of an act as relating to these matters is a question for the law of the issuing or the executing State. For example, if the law of State A characterises a criminal act as relating to infanticide rather than abortion, it is not clear if State B is entitled to apply a dual criminality test if its own law regards the matter as relating to abortion. As the question is one of dual criminality, the law of the executing State ought more naturally to apply, but this could lead to limits on the operation of the Framework Decision. Back

23  The meaning of 'no longer' in this context is far from clear. It suggests an upper age limit for criminal responsibility, but we are not aware that there is such upper age limit in the law of the United Kingdom. On the other hand lower age limits for criminal responsibility are common in the laws of EU Member States. Back

24  It is not clear why offences under Article 2(4) are not also covered. Back

25  The meaning of this is not defined, and it is not clear whether the meaning falls to be determined under the law of the issuing or the executing State. It would presumably cover both those cases where the accused does not attend court at all, and those where the accused does not attend throughout the proceedings.  Back

26  See (22625) 10912/01; see headnote to this paragraph, in which we ask the Minister if he agrees that the provisions of the Second Additional Protocol are to be preferred. Back

27  The 1957 Council of Europe Convention allows reservations in respect of any of its provisions. For these reservations, see Schedule 3 to the European Convention on Extradition Order 1990 (S.I. 1990/1507). The mechanism of the Convention is not one of automatic and mutual recognition of warrants for arrest, but requests for extradition between competent authorities. Back

28  The Schengen Information System. Back

29  The previous provisions, which appeared to conflict in their effect with the Bail Act 1976, have been deleted. The question of bail now seems wholly a matter for the law of the executing State. Back

30  It is not stated, but presumably the 'awareness' relates to the resulting consequences in Article 14(2). Back

31  The scope and nature of this 'appeal' are not clear. For example, it is not clear if the appeal is to be on grounds both of fact and law. Back

32  The present stage of negotiations on Eurojust is described in (22455) 7408/2/01; HC 152-vi (2001-02), paragraph 1 (14 November 2001). Back

33  The English text of Article 18(2) refers to the person being 'released', but this appears to be an error in the translation of the French text 'remise'. Back

34  The scope of this proviso is not clear, since a deferment on health or humanitarian grounds under Article 18(4) already operates to suspend the time limit. Back

35  This appears to make the characterisation of the offence as falling within Article 2(3) or (4) a question of the law of the first executing State. Back

36  A surrender in such cases seems likely to involve the Member State concerned in a breach of Article 3 ECHR (which prohibits torture and inhuman or degrading treatment) c.f. Soering v UK (1989) 11 EHRR 439. Back

37  Article 7 EU (which is prospectively amended by the Treaty of Nice) provides for the suspension of a Member State's rights under the EU Treaty. Back

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