the European arrest warrant - Statewatch

More documents

Recommendations

Info

EXPLANATORY MEMORANDUM 1. BACKGROUND TO EXTRADITION Extradition came about as a means of arranging for a foreigner found in one State to be handed over to another State for prosecution or punishment in an often complicated context of political and diplomatic relations between States. It is often a slow and complex business, and it is not suited to a frontier-free area such as the European Union in which there is a high degree of trust and cooperation between States that share a sophisticated concept of the State based on the rule of law. It is currently governed by the European Extradition Convention of 13 December 1957 (“the 1957 Convention”), the Additional Protocol to that Convention of 15 October 1975 (“the 1975 Protocol”), the second Additional Protocol of 17 March 1978 (“the 1978 Protocol”) and the European Convention of 27 January 1977 on the suppression of terrorism (“the Terrorism Convention”). These instruments represented real progress at the time of their signature, but today they constitute a heavy and obsolete mechanism in view of what relations between the Member States of the European Union have now become. The Convention Implementing the Schengen Agreement, by setting up the SIS, created a mechanism that will considerably improve practical information mechanisms between Member States relating to persons who are sought and facilitate contacts between national authorities at the time of the arrest of a person. Legally, however, the Schengen Convention adds nothing to the traditional extradition mechanisms laid down in the 1957 Convention. The Convention on the simplified extradition procedure between the Member States of the European Union of 10 March 1995 (“the 1995 Convention”) and the Convention on the extradition between the Member States of the European Union of 27 September 1996 (“the 1996 Convention”) are intended to accelerate and simplify the mechanisms of the 1957 Convention and to remove most of the grounds for reservations with respect to it. But they do not break with the extradition mechanism that is by definition political and intergovernmental. And they have been ratified only by nine and eight Member States respectively. 2. THE IMPLICATIONS OF MUTUAL RECOGNITION By entering the creation of space of freedom, of safety and of justice in the list of objectives of the Union, the Treaty of Amsterdam opens the door to a radical change of perspective. The Tampere European Council stated that “mutual recognition of judicial decisions and judgments ... should become the cornerstone of judicial cooperation in both civil and criminal matters”. As regards extradition, the implementation of the principle of mutual recognition means that each national judicial authority should ipso facto recognise requests for the surrender of a person made by the judicial authority of another Member State with a minimum of formalities. 3. THE NEW BILATERAL TREATIES InparallelwithworkinhandintheUnion,andinconsiderationoftheurgentneedtofind effective responses to fight against the increasing internationalisation of crime, several Member States have started bilateral discussions on measures to replace the obsolete extradition mechanism by mechanisms of simple surrender to judicial authorities. Italy and 2
Spain, for instance, signed a Treaty last December. A corresponding Treaty is being prepared between Spain and the United Kingdom. These initiatives are to be welcomed, for they underscore the mutual confidence between Member States’ legal systems. But they highlight the urgent need to reform existing multilateral mechanisms so as to avoid further complicating the existing abundance of extradition measures through the adoption of bilateral agreements between Member States. 4. THE EUROPEAN ARREST WARRANT 4.1. Context The Vienna Action Plan called on the Member States to speedily ratify and implement the existing extradition instruments (item 45 c). The conclusions of the Tampere European Council state that “the formal extradition procedure should be abolished among the Member States as far as persons are concerned who are fleeing from justice after having been finally sentenced, and replaced by a simple transfer of such persons, in compliance with Article 6 TEU. Consideration should also be given to fast-track extradition procedures, without prejudice to the principle of fair trial” (item 35). The Commission is invited “to make proposals on this matter in the light of the Schengen Implementing Agreement”. This mandate was recalled in Recommendation 28 of the strategy of the European Union for the next millennium as regards prevention and control of organised crime, which calls on the Commission “to make proposals for expedited extradition of convicted persons fleeing from justice as well as on fast-track extradition procedures”. It further recommends that “consideration should be given to the long-term possibility of the creation of a single European legal area for extradition. The issue of extradition in relation to procedures in absentia, with full respect to fundamental rights granted by the European Convention on Human Rights, might also be examined in this context”. Recently again, following the unprecedented, tragic and murderous terrorist attacks against the people of the United States of America on 11 September 2001, the heads of State and Government of the European Union, the President of the European Parliament, the President of the European Commission, and the High Representative for the Common Foreign and Security Policy have called for "the creation of a European warrant for arrest and extradition in accordance with the Tampere conclusions, and the mutual recognition of legal decisions and verdicts". 4.2. Scope In preparing this proposal, the Commission departments organised a series of interviews in the Member States with legal practitioners, judicial officers, lawyers, academics and ministry officials responsible for extradition in almost all the Member States. It emerged that there was no reason for distinguishing between situations in which extradition is requested at the pre-trial stage and those in which it is requested for the execution of an enforceable judgment. No bilateral or multilateral instrument makes this distinction, for which there is no justification in practice. Consequently, to simplify the existing legal order, the European arrest warrant must have the same scope as the extradition which it replaces and apply both before trial and afterwards. 3
Page 1: COMMISSION OF THE EUROPEAN COMMUNIT
Page 5 and 6: 7. the removal of the principle of
Page 7 and 8: But as the principle of double crim
Page 9 and 10: Where a Member State makes use of t
Page 11 and 12: case-law of the European Court of H
Page 13 and 14: decision, it must always be a judic
Page 15 and 16: Article 23 - Time-limit for the sur
Page 17 and 18: Article 29 - Non bis in idem The no
Page 19 and 20: incompatible with the principle of
Page 21 and 22: This Article deals with the rather
Page 23 and 24: Article 46 - Transmission The provi
Page 25 and 26: Proposal for a 2001/0215 (CNS) COUN
Page 27 and 28: sentence to be served in the Member
Page 29 and 30: (f) “requested person” means a
Page 31 and 32: Chapter II: Procedure SECTION 1-GEN
Page 33 and 34: Article 14 - Provisional release 1.
Page 35 and 36: Article 21 - Refusal and expiry of
Page 37 and 38: Chapter III - Grounds for non-execu
Page 39 and 40: Chapter IV - Grounds for refusal to
Page 41 and 42: 2. Where a European arrest warrant
Page 43 and 44: Chapter VI - Relation to other lega
Page 45 and 46: 2. All other expenses, including tr
Page 47 and 48: Chapter IX - General and final prov
Page 49 and 50: (b) The judicial authority, which i
Page 51 and 52: (h) Other consequences of the offen
Page 53:
CHAPTER IV: GROUNDS FOR REFUSAL TO
show all

the European arrest warrant - Statewatch

Create successful ePaper yourself

Delete template?

Save as template?