The transition to surrender procedures based on a European

Arrest WarrantWouter 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 decisionon the European Arrest Warrant and surrenderprocedures 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