EUROPEAN ARREST WARRANT
|Draft Council Framework Decision on the European arrest warrant and the surrender procedures between the Member States.
||Articles 31(a) and (b), 34(2)(b); consultation; unanimity
|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
||Legally and politically important
||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.
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
and the speciality rule.
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
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
5.5 As promised in his letter of 6 November,
the Minister has now deposited the latest English version of the
and submitted an Explanatory Memorandum on 16 November.
The revised proposal
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
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.
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.
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,
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),
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',
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.
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
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
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.
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.
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,
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'.
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'.
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',
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,
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
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
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.
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'.
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'.
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.
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
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
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
"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
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
15 (22625) 12102/01; see headnote to this paragraph. Back
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
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
10912/01; see headnote to this paragraph. Back
is an English translation of the French text we took into account
on 14 November. Back
is, the State seeking extradition. Back
No. C 316, 27.11.95, p. 2. Back
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
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
is not clear why offences under Article 2(4) are not also covered. Back
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
(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
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
Schengen Information System. Back
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
is not stated, but presumably the 'awareness' relates to the resulting
consequences in Article 14(2). Back
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
present stage of negotiations on Eurojust is described in (22455)
7408/2/01; HC 152-vi (2001-02), paragraph 1 (14 November 2001). Back
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
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
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
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
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