Friday 30 April 2010

European arrest warrant: EU & UK

In the report Justice issues in Europe, the UK House of Commons Justice Committee discusses matters relevant to the development of the European Union’s area of freedom, security and justice (FSJ).

This timely report is interesting both generally and from a British point of view.

In this blog post we look at the European arrest warrant.

Stockholm Programme

In the European Union’s 2010─2014 Stockholm Programme – An open and secure Europe serving and protecting citizens, the European Council invited the European Commission to (document 5731/10; page 40):

… explore the results of the evaluation of the European Arrest Warrant, and, where appropriate, make proposals to increase efficiency and legal protection for individuals in the process of surrender, by adopting a step-by-step approach to other instruments on mutual recognition; ...

Stockholm Programme Action Plan

Since then, the proposed Action Plan for the implementation of the Stockholm Programme has been published in 21 official EU languages:

Delivering an area of freedom, security and justice for Europe's citizens - Action Plan Implementing the Stockholm Programme; Brussels, 20.4.2010; COM(2010) 171 final

(The Justice and Home Affairs (JHA) Council has issued its first conclusions on the Action Programme (document 8920/10).)

In the Action Plan, under the headline Furthering the implementation of mutual recognition (in the area of criminal law), the Commission has promised to report on the implementation of the Framework Decision 2002/584/JHA on the European Arrest Warrant in 2010 and to contribute with “appropriate follow-up” in 2014.

European arrest warrant

For an overview of the European Arrest Warrant, you can consult the relevant summary of EU legislation on Europa (latest update 8 January 2010).

You can also read the Wikipedia encyclopedia entry European Arrest Warrant, including critical viewpoints (last update 29 April 2010).

Here is the consolidated version (28 March 2009) of:

COUNCIL FRAMEWORK DECISION 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States

The provisions defining the European arrest warrant and setting out its scope:


Article 1
Definition of the European arrest warrant and obligation to execute it

1. The European arrest warrant is a judicial decision issued by a Member State with a view to the arrest and surrender by another Member State of a requested person, for the purposes of conducting a criminal prosecution or executing a custodial sentence or detention order.

2. Member States shall execute any European arrest warrant on the basis of the principle of mutual recognition and in accordance with the provisions of this Framework Decision.

3. This Framework Decision shall not have the effect of modifying the obligation to respect fundamental rights and fundamental legal principles as enshrined in Article 6 of the Treaty on European Union.

Article 2
Scope of the European arrest warrant

1. A European arrest warrant may be issued for acts punishable by the law of the issuing Member State by a custodial sentence or a detention order for a maximum period of at least 12 months or, where a sentence has been passed or a detention order has been made, for sentences of at least four months.

2. The following offences, if they are punishable in the issuing Member State by a custodial sentence or a detention order for a maximum period of at least three years and as they are defined by the law of the issuing Member State, shall, under the terms of this Framework Decision and without verification of the double criminality of the act, give rise to surrender pursuant to a European arrest warrant:

— participation in a criminal organisation,
— terrorism,
— trafficking in human beings,
— sexual exploitation of children and child pornography,
— illicit trafficking in narcotic drugs and psychotropic substances,
— illicit trafficking in weapons, munitions and explosives,
— corruption,
— fraud, including that affecting the financial interests of the European Communities within the meaning of the Convention of 26 July 1995 on the protection of the European Communities' financial interests,
— laundering of the proceeds of crime,
— counterfeiting currency, including of the euro,
— computer-related crime,
— environmental crime, including illicit trafficking in endangered animal species and in endangered plant species and varieties,
— facilitation of unauthorised entry and residence,
— murder, grievous bodily injury,
— illicit trade in human organs and tissue,
— kidnapping, illegal restraint and hostage-taking,
— racism and xenophobia,
— organised or armed robbery,
— illicit trafficking in cultural goods, including antiques and works of art,
— swindling,
— racketeering and extortion,
— counterfeiting and piracy of products,
— forgery of administrative documents and trafficking therein,
— forgery of means of payment,
— illicit trafficking in hormonal substances and other growth promoters,
— illicit trafficking in nuclear or radioactive materials,
— trafficking in stolen vehicles,
— rape,
— arson,
— crimes within the jurisdiction of the International Criminal Court,
— unlawful seizure of aircraft/ships,
— sabotage.

3. The Council may decide at any time, acting unanimously after consultation of the European Parliament under the conditions laid down in Article 39(1) of the Treaty on European Union (TEU), to add other categories of offence to the list contained in paragraph 2. The Council shall examine, in the light of the report submitted by the Commission pursuant to Article 34(3), whether the list should be extended or amended.

4. For offences other than those covered by paragraph 2, surrender may be subject to the condition that the acts for which the European arrest warrant has been issued constitute an offence under the law of the executing Member State, whatever the constituent elements or however it is described.

House of Commons Justice Committee

One of the relatively rare assessments of Justice and Home Affairs (JHA) in the European Union published after the Stockholm Programme and before the adoption of the implementing Action Plan is:

UK House of Commons Justice Committee: Justice issues in Europe (HC 162-I; published 6 April 2010; 60 pages)

On page 19 the Committee noted that according to the Ministry of Justice, the European arrest warrant had:

• transformed extradition arrangements between EU member states
• played an important role in the UK’s fight against international and trans-national criminality
• prevented countries from refusing to surrender fugitives
• reduced the time taken to surrender fugitives from an average of 18 months under previous extradition arrangements to around 50 days, and
• enabled the UK to extradite over 1000 fugitives to other EU member states (since introduction) and, in 2008, nearly 100 wanted persons were surrendered back to the UK to face criminal proceedings.

Some problematic questions have surfaced as shown by the cases mentioned in Box 2 (pages 21 and 22).

After a discussion of difficulties with regard to individuals’ rights, the possible need for a proportionality test and potential means to remedy application problems, the Justice Committee concluded (on pages 24 to 25; point 50):

50. It is unfortunate that the successful use of the European arrest warrant, and the reduced time taken to process intra-EU extraditions, has been overshadowed by perceived injustices in individual cases. We welcome the conclusions of the evaluation of the warrant, adopted by the Council in June 2009, and the subsequent progress that has been made. However, we believe that the time it takes to review and reform such instruments undermines the mutual trust approach. Legislation should be used only as a last resort to resolving the issues over proportionality and we hope that the current approach bears fruit before the predicted growth in demand for European arrest warrants takes place.

The Committee then went on to discuss the threshold of inoperability regarding amending or accompanying EU measures, when the United Kingdom does not opt in. Regarding future developments under the Lisbon Treaty, matters were left suspended in thinnish air (page 26; point 54):

54. We are encouraged that neither the Minister, nor any of our witnesses, were able to provide a convincing example of a situation in which an existing measure would be rendered inoperable as a result of the UK’s decision not to participate. Nevertheless, we are concerned that the term “inoperable” is not defined in the protocol and that guidance is not available on its interpretation.

Ralf Grahn

P.S. If you have information about general or national publications assessing the EU’s justice and home affairs (JHA), the Stockholm Programme or the proposal for the implementing Action Plan, please feel free to share it with the readers of Grahnlaw, by posting a comment or by sending me an e-mail.

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