Select Committee on European Union Thirty-Eighth Report



21. There is no substantive provision in the Agreement explicitly regulating instances in which there may be a ECHR bar to extradition. The Preamble to the Agreement refers to the Parties having "due regard for rights of individuals and the rule of law" (third recital). Article 17(2) on the other hand enables "consultations" to take place between the requested and requesting States "where the constitutional principles of, or final judicial decisions binding upon, the requested State may pose an impediment to fulfilment of its obligation to extradite".[16] The reference to "final binding judicial decisions" was added in the very last stages of the negotiations and may be read as covering decisions by the European Court of Justice and the European Court of Human Rights. The Greek Minister of Justice Mr Petsalnikos (who chaired the JHA Council during the Greek Presidency) emphasised to the European Parliament's Citizens' Rights Committee that this provision "has no precedent and it certainly constitutes the common point between these agreements and the European Convention on Human Rights".[17]

22. In his evidence to the Committee, Mr Ainsworth repeatedly emphasised that nothing in the Agreement was intended to disturb the current domestic law position in the UK that extradition would be refused by our courts in the event of a successful ECHR challenge to extradition (QQ 47, 56, 58, 59). The Minister further confirmed that Article 17(2) constituted an implied ground for refusal of extradition on ECHR grounds (Q 67) and that that interpretation was shared by other Member States (QQ 64, 65). We welcome the Minister's assurances. It would be preferable, however, if the Agreement explicitly provided for the possibility of extradition being refused on ECHR grounds, as the Convention forms an integral part of Union law.[18] Such express reference would constitute considerable "added value" in an agreement concluded between the EU (and not each Member State individually) and the US. It might also enhance human rights safeguards in future bilateral agreements between Member States and the US, which must, according to Article 18, be consistent with this Agreement.


23. Article 13 enables extradition to be granted "on the condition that the death penalty shall not be imposed on the person sought, or if for procedural reasons such condition cannot be complied with by the requesting State, on condition that the death penalty if imposed shall not be carried out". The wording is a departure from the initial negotiating mandate, which envisaged guarantees on the non-imposition (and not the non-execution) of capital punishment sentences (see para. 2 above). By way of explanation Government officials indicated that the wording used reflected the fact that in some states courts were obliged to impose the death penalty for certain offences but "it is then discretionary whether or not it is carried out" (Q 80).

24. Article 13 has been criticised by Amnesty International, on various grounds including the leaving of what it considers "an unacceptable margin of discretion with regard to conditioning and refusing extradition in the face of the death penalty".[19] The Citizens' Rights Committee of the European Parliament was, however, more positive in its assessment. Its Report pointed out that "contrary to what is the case at present under almost all bilateral extradition treaties, the non-execution of the death penalty by the US Administration is not contingent upon assurances on a case-by-case basis to be provided by the US Administration in every case on an ad hoc basis, it may be imposed as a condition by an EU Member State from which the United States seeks the extradition of a person".[20] This is a welcome step.

25. It should be noted that, pursuant to Article 3(i)(j), Article 13 "may be applied by the requested State in place of, or in the absence of, bilateral treaty provisions governing capital punishment". Consistent with UK practice the new bilateral treaty with the US contains (in Article 7) such a provision. Under it extradition may be refused "unless the Requesting State provides an assurance that the death penalty will not be imposed or, if imposed, will not be carried out". In evidence to us the Government emphasised that they will always seek appropriate assurances in death penalty cases. This has been the practice for many years and it was stressed that there has never been an instance in which such assurances have not been fully honoured (QQ 16, 80, 81). We welcome this clarification.

26. Death penalty concerns can also arise in the context of the relaxation of the protections afforded by the doctrine of speciality (specialty). In contrast to Article 27 of the Framework Decision on the European Arrest Warrant the EU-US Extradition Agreement does not contain detailed treatment of this important topic.[21] We note, however, that Article 18 of the new UK-US bilateral treaty does. In this regard we welcome the indication that the relaxation of the rule of speciality contained in Article 18(1)(a)[22] is not intended to lessen protection for the individual in a capital punishment context. It is our understanding from the Government's oral evidence to us that if, post extradition, a charge for a capital offence were to be substituted for, or added to, the extradition offence not carrying such a penalty, even though based on the same facts, the Government would regard it as an act of bad faith for the capital offence to be prosecuted otherwise than on the footing that the death penalty would not be imposed or, if imposed, would not be executed (QQ 99, 100).


27. There has been great concern over whether the extradition agreement would allow extradition to the US of suspects who could face trial in a military tribunal. One of the Recommendations of the European Parliament's Citizens' Rights Committee, which was endorsed by the plenary, has been that the Agreements "should explicitly exclude every form of judicial cooperation with American exceptional and/or military courts and that all discrimination should be abolished between European and American citizens which might arise from application of the Patriot Act and of the Homeland Security Act".[23]

28. Along with the general human rights safeguards mentioned above (which would include fair trial rights), the Preamble of the Extradition Agreement states that the Parties are "mindful of the guarantees under their respective legal systems which provide for the right to a fair trial to an extradited person, including the right to adjudication by an impartial tribunal established pursuant to law". This is a welcome (even if indirect) acknowledgement of this important matter, though its legal force is debatable. This also departs from the wording of the ECHR which requires an "independent" and impartial tribunal (Q 62). Once more we note the Minister's assurances that extradition will be refused by our courts in the event of a successful ECHR challenge to extradition including breach of fair trial rights (QQ 47, 56, 58, 59). We recommend that the Government adopt a practice of requiring, as a condition of extradition in cases where trial before a military tribunal or other similar exceptional court is an option under US or State law (as the case may be), an assurance that the extradited person will be tried before a normal federal or State court.


29. A controversial issue during the negotiation of the Agreement was whether requests pursuant to the European Arrest Warrant should take precedence over extradition requests by the US. The French Government has sought to delete Article 10(2) which treated European Arrest Warrants as normal extradition requests received by Member States for the purposes of the agreement.[24] The Article went through a last minute amendment to address these concerns. According to the Government, the amendment is designed to ensure that should the EU decide in the future that European Arrest Warrants should be afforded primacy, the EU would not be bound by this Agreement to set aside that primacy in the case of a request by the US (Q 104). This has been reinforced by Article 21,[25] which provides for the agreement to be reviewed no later than five years after its entry into force and that the review may include issues "such as the consequences of further development of the European Union relating to the subject matter of this Agreement, including Article 10".

16   This was Article 16(a)(2) in the version that was formally submitted for scrutiny (document 8295/1/03). It was amended and renumbered in a subsequent version of the Agreement (document 9153/03 CATS 28 USA 41) dated 3 June. Back

17   Address by Mr Petsalnikos to the LIBE Committee of the European Parliament, 11 June 2003, Back

18   See Article 6(2) TEU. Back

19   Amnesty International, EU-US extradition agreement still flawed on human rights, 4.6.03, The same report also draws attention to various other ECHR issues including fair trial rights and those in issue in the European Court of Human Rights judgment in Soering v UK, 7.7.1989, 1/1989/161/217. Back

20   Op. cit., p 12. Emphasis added. Back

21   However, Article 11 envisages simplified extradition with the consent of the individual concerned and stipulates that such consent may include waiver of protection of the rule of speciality. Back

22   "A person extradited under this Treaty may not be detained, tried, or punished in the Requesting State except for: (a) any offence for which extradition was granted, or a differently denominated offence based on the same facts as the offence on which extradition was granted, provided such offence is extraditable, or is a lesser included offence". Back

23   Op. cit., p.6. Back

24   See the Report by the French Parliament: Assemblée nationale, Rapport d'information sur la cooperation judiciaire entre l'Union européenne et les Etats Unis d'Amerique, no 716, p 45. It should be noted that European Arrest Warrants do not at present have priority under Article 16(3) of the Framework Decision. Back

25   Article 19a in the draft formally submitted for scrutiny. Back

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