Transcript The transition to surrender based on a European Arrest Warrant

The transition to surrender
procedures based on a European
Arrest Warrant
Wouter van Ballegooij LLM
TMC Asser Instituut
The Hague
Introduction
• Objectives:
• Provide an overview of “traditional” extradition
procedures (based on European Convention on
Extradition 1957 and Dutch Extradition Act)
• Introduce surrender procedures based on a European
Arrest Warrant in accordance with the aims and scope of
the Framework decision on the European Arrest Warrant
• Illustrate problems that remain to be solved by judicial
authorities
• Explain the aims of the www.eurowarrant.net project
European Arrest Warrant
• European Arrest Warrant: form sent by a
judicial authority in Member State A to a
Judicial authority in Member State B to
obtain the surrender of a suspect or
convicted person in B´s jurisdiction´
• Tool to simplify and expedite Extradition, which
is renamed Surrender in the Framework decision
on the European Arrest Warrant and surrender
procedures in the Member States
Extradition
• Extradition: ´the removal of a person from
State A with the object of surrendering him
to State B for the purpose of a criminal
investigation concerning him in State B or
of enforcing a penalty or measure imposed
on him in State B´.
Extradition
• Most countries demand a Extradition Treaty
• Extradition can be based on bi- or multilateral
treaties (1957 European Convention on
Extradition being the most important).
• In the Netherlands the Framework decision on
the European Arrest Warrant has been
construed as a measure implementing the
European Union Treaty.
Extradition
• Extradition in the Netherlands involves
courts as well as administrative
authorities.
• Two stages:
• Judicial stage: admissibility
• Political stage: actual granting of
extradition request by Minister of Justice
Extradition
• Judicial stage:
• >receipt of extradition request by Netherlands
Ministry of Justice
• >request is forwarded to public prosecutor of the
Court district where the person remains
• >In case the requested person opposes
extradition…
• >District Court hears the requested person and
public prosecutor on the extradition request
Extradition
• The Court checks:
• Mistaken identity or it has become
manifest that the requested person cannot
possibly have committed the offence
• Lapse of time: it has been established
beyond reasonable doubt that legal
obstacles prevent the requesting state
from successfully trying the person.
Extradition
• Double Criminality: the act for which
extradition has been granted constitutes
an offence according to both the
requesting and the requested state.
• >Qualified double criminality: the offence
should be punishable under the law of
both the requesting and requested State
by a custodial sentence of at least one
year
Extradition
• Double criminality (ctd.):
• The Court bases itself on the facts
contained in the extradition request.
• The question is whether, assuming these
facts to be true, they may come within
reach of a provision of Dutch law declaring
similar behaviour to be a criminal offence
• “Singemäße Umsetzung des
Tatbestandes”
Extradition
• Ne bis in idem:
• Proceedings for the same offence are pending,
have been discontinued and have ended in a
final verdict.
• Many problems with the concept. Is smuggling
drugs from Holland to Belgium different from
importing drugs to Belgium? What is to be
understood under ´final verdict´? (the latter issue
was resolved by the European Court of Justice)
Extradition
• Human Rights: Conflicting treaty
obligations; duty to extradite versus the
duty to uphold human rights (European
Convention on Human Rights).
• ´The European Convention may stand in
the way of extradition if there is a real risk
that the person sought would suffer a
flagrant denial of a fair trial in the
requesting state´ (taken from ECHR in
Soering versus UK).
Extradition
• If, however, that State is a party to the
European Convention is must be assumed
that it will honour its obligations under the
Convention unless the perons sought is
able to show that this is not or will not be
the case´
• The Supreme Court points to the fact that
the individual can appeal to the ECHR
after trial in the requesting State.
Extradition
Guarantees
• In absentia trials: extradition for the purpose of
enforcing a judgment rendered in absentia shall
be granted only if the person claimed has had or
will still be given an adequate opportunity to
defend himself in person.
• Nationals: Dutch nationals will only be extradited
to State that guarantee their return to serve their
sentence in the Netherlands.
Extradition
• The decision of the District Court may be
appealed to the Supreme Court by the
requested person or the public prosecutor.
• Administrative stage:
• If the Court finds the extradition inadmissible the
Minister of Justice has to refuse surrender
• If the Court finds the extradition admissible, the
Minister of Justice has to decide whether to
actually grant extradition based on his own
considerations and the issues raised in the
Court decision.
Extradition
• The Minister considers: human rights,
hardship.
• Under the Civil Code, the requested
person may approach a District Court for
an injunction ordering the government not
to surrender him.
Extradition
• Weaknesses in the extradition system:
• 1957 European Extradition Convention allows for
possibility to enter reservations
• >lead to the non-extradition for political offences, often
people accused of taking part in acts of terrorism
• >many countries did not allow the extradition of their
nationals
• The extradition procedure is/was long and bureaucratic
(Public Prosecutor A> Minister of Justice A>Minister of
Justice B>Public Prosecutor B>Court B>Minister of
Justice B >Court II B)
Extradition
• The problem was exacerbated by the
removal of the internal borders in the
context of the development of the
European Communities internal market
programme.
• It was now easier for suspects and
convicted criminals to move across
Europe's borders.
Extradition
• Attempts were made to simplify and
expedite extradition in two EU
Conventions on Extradition (1995 and
1996).
• They were slowly ratified and many
reservations (to the extradition of nationals
in particular were entered)
Treaty of Amsterdam
• The recognition that we´re part of a single
law enforcement area (the area of
freedom, security and justice).
• This calls for enhancement of judicial
cooperation in criminal matters. In 1999
European leaders decided the best way
would be mutual recognition of judicial
decisions, provided human rights are
ensured.
Surrender
• What does mutual recognition entail in principle:
• You accept the warrant for arrest issued by your
colleague in the other Member State as equal to
an arrest warrant issued in your own Member
State
• Therefore, if something is a criminal offence
there, you should surrender the person,
provided his rights are ensured.
• However, you trust these rights will be ensured
since all Member States of the European Union
are party to the European Convention on Human
Rights.
Surrender
• The European Commission drafted a Programme of
measures implementing mutual recognition of judicial
decisions (January 2001). Mutual recognition is made
dependent upon:
• The definition of minimum common standards necessary
to facilitate application of the principle of mutual
recognition
• Mechanisms for safeguarding the rights of third parties,
victims and suspects
• Whether enforcement of the decision is direct or indirect
and the definition and scope of a validation procedure if
any
• Determination and extent of grounds for refusing
recognition, where those grounds are the sovereignty or
other essential interests of the requested State or relate
to legality.
Surrender
• Mutual recognition of arrest warrants was
speeded up after 9/11 in order for there to be a
quick system for surrendering terrorists
• Main changes introduced:
• 1. Direct contacts between judicial authorities
(called the “issuing” and the “executing” judicial
authority). The administration is no longer
involved in the procedure itself. It merely
provides assistance where necessary.
Surrender
• 2. A granting procedure is maintained.
However, the procedure is significantly
expedited. A decision on surrender should
be taken within a maximum of 60 plus 30 =
90 days.
• 3. The double criminality test no longer
applies to 32 categories of crime
• 4. A standard European Arrest Warrant
form is to be used.
Surrender
• Problems:
• Should the issuing judicial authority provide the
executing judicial authority with a full description
of the facts underlying the surrender request,
even if it concerns one of the 32 categories of
crime?
• May the executing judicial authority check
whether the issuing judicial authority was
“reasonable” in qualifying certain acts as a
category of crime mentioned on the list?
Surrender
• Can the executing judicial authority refuse
surrender for acts that are not punishable
under its own jurisdiction?
• How should the executing judicial authority
deal with human rights concerns?
• Who is the judicial authority anyway?
Surrender
• Problems are exacerbated by divergent
implementation
• European Community Law > Directive
• The European Commission can take action
against Member States for failing to implement
provisions of a directive
• It is possible for Courts to ask preliminary
questions on how certain provisions of directives
are to be understood
• Citizens can rely directly on provisions of
directives in case they are sufficiently clear
Surrender
• European Union (intergovernmental) police and
judicial cooperation in criminal matters>
framework decision
• Commission has no right to bring an
infringement action
• Not all Member States allow their courts to ask
preliminary questions to the Court of Justice in
Luxembourg
• Citizens may not directly rely on provisions of
framework decisions.
European Arrest Warrant project
• We have divergent implementation of the
framework decision on the European
Arrest Warrant.
• A judicial authority in Holland f.i. does not
understand the surrender procedure and
its background in France
• Neither does it have access to case law in
which the national provisions are
elaborated.
European Arrest Warrant Project
• The substantive elements of the 32
categories of crime have not been
harmonized.
• Minimum standards concerning the rights
of the defence have not been adopted.
Suspects and their council need to be
made aware of their rights under the
various legal systems.
European Arrest Warrant project
• Setting up a network of experts
• Providing an overview of surrender procedures
in the 25 current Member States, the acceding
States (Romania and Bulgaria), Croatia,
Switserland, Norway and Iceland.
• Providing summaries of important national
surrender decisions (with full text adopted)
• Providing comments, analysis and best practices
based on comparative research
• Results to be published on www.eurowarrant.net