The European Union first became actively involved in question of extradition between member states when, in October 1996, the latter adopted a convention on the subject, using the provisions for intergovernmental cooperation in the field of Justice and Home Affairs (JHA), under (then) Article K.3 TEU, introduced by the 1992 Maastricht Treaty. Based in part on the existing European Convention on Extradition drawn up by the Council of Europe in 1957 and on an extradition treaty agreed among the Benelux countries in 1962, the EU convention set out agreed definitions of extraditable offences and addressed certain problems arising from differences between the member states’ legal systems (such as the concept of conspiracy and the treatment of ‘political’ offences, fiscal crime and abortion). The convention also sought to remove procedural obstacles to the handling of requests for extradition. Even though there was a presumption of consent on the part of member states to which applications for extradition were addressed, they remained free to refuse such requests.
The 1996 convention was superseded by a ‘framework decision’, adopted by the EU Council of Ministers in June 2002, which established a European Arrest Warrant (EAW) and reformed surrender procedures between member states. After transposition of the measure by the member states into national law, the EAW system entered into force in January 2004. An EAW is defined as ‘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’. It relates specifically to offences carrying a custodial sentence of at least one year and for fugitives already sentenced to custody or detention for four months or more. For 32 particularly serious offences – those carrying a sentence of at least three years – it is no longer necessary to prove that the offence is recognised in the legal systems of both the country in which the EAW has been issued and the country in which the person charged with the offence has been apprehended (‘double criminality’). These 32 offences include participation in a criminal organisation, terrorism, trafficking in human beings, sexual exploitation of children and child pornography, illicit trafficking in arms, ammunition and explosives, corruption, fraud, and the laundering or counterfeiting of money.
The core principles underlying the EAW are the mutual recognition of criminal offences, the inability of member states to refuse to execute a warrant on the grounds of the nationality of the individual concerned, and insistence that the issuing of a warrant is an entirely a matter for the national judicial authority in question, in which no political consideration or decision-making is allowed. However, a member state may refuse to surrender a person if he or she has already been tried and acquitted of the same offence (‘double jeopardy’), if the country has an amnesty covering the offence in its national law, if a statute of limitation (time limit) applies to the crime which has already been exceeded, or if the person is too young to be tried in that country.
According to figures published by the European Commission, from 2005 to 2009, a total of 54,689 EAW requests were made across the European Union, of which 11,630 were executed. The average time taken to secure the surrender of individuals has fallen from over nine months to just under 50 days. This figure does not include cases in which individuals voluntarily surrender themselves, where the average time is 15 days. In some cases, the perpetrators of extremely serious crimes – for example, Hussain Osman, one of July 2005 London bombers – have been successfully prosecuted as a result of the EAW system (he was extradicted from Italy to the United Kingdom). In other cases, the use of EAWs has proved more controversial, as when an Australian citizen, accused of holocaust denial, was arrested in transit at Heathrow airport to the outrage of the British popular press. (The German prosecutor later dropped the case, after it became embroiled in the UK courts).
Certain member states have proved much more inclined to use EAWs than others: of the 15,827 requests made in 2009, fully 6,744 came from Poland and Romania (2,244 of which were executed). There has been criticism that trivial cases are being subject to EAWs – famously the theft of two motorcar tyres and a piglet, as well as minor driving and drugs offences. More seriously, the Commission has expressed concern about whether the procedural rights of suspects are being fully and consistently respected in certain member states – in respect of access to legal advice and interpretation or to communicate with family members, employers and consular services, for example – and whether the physical conditions of detention are always acceptable. In 2007, the Commission requested 26 of the 27 member states to make changes to their measures to implement the EAW system, but so far only 14 countries have complied.
Under the Lisbon Treaty, the ‘pillared’ structure of the European Union, dating from the Maastricht Treaty, has been abolished. As a result, those areas of JHA which still operated on an intergovernmental basis – notably police and judicial cooperation in criminal matters – have been brought within the remit of the ‘Community’ method. Since December 2009, the adoption of legislation on subjects like the EAW no longer takes the form of ‘framework decisions’, as this type of legal act, specific to the JHA pillar, has been discontinued (and replaced in this case by a directive). Moreover, legislation in this field will now be adopted jointly by the European Parliament and Council, under the co-decision procedure, with the Council deciding its position on the basis of qualified majority voting (QMV), rather than unanimity. As a consequence, a higher emphasis is likely to placed on individual rights in future decision-making on issues such as the EAW – a process reinforced by the Charter of Fundamental Rights being made legally binding and the European Union becoming a signatory in its own right to the European Convention on Human Rights (ECHR).
Copyright: Anthony Teasdale, 2012
Citation: The Penguin Companion to European Union (2012), additional website entry