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Statewatch News online: Analysis of secret EU-US agreement on extradition and mutual assistance

28 March 2012

Statewatch analysis
EU/US agreement on extradition and mutual assistance

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Introduction

Council document 6438/2/02 sets out the secret negotiating agenda for a treaty between the EU and the US on extradition and mutual assistance in criminal matters.

This document suggests that the treaty between the EU and the US could drop or significantly weaken many of the traditional protections for the individual found in extradition and mutual assistance treaties, without expressly planning to provide for sufficient protection for human rights and civil liberties which the EU and the US claim to protect.

In particular:

- some Member States are willing to become 'accomplices' to the death penalty, by supplying evidence and witnesses to the US in death penalty trials;

- protection for suspects and witnesses could be reduced;

- civil liberties guarantees against search and seizure, confiscation of property and interception of telecommunications could be weakened;

- the traditional 'political offence' exception to extradition could be weakened;

- many Member States' constitutional ban on extraditing their own nationals could be dropped; and

- many other traditional grounds for refusal to extradite are not mentioned; and

- there are grave doubts abut adequate parliamentary or judicial control over the ratification and implementation of the treaty.

Background

The planned treaty with the US will be, if agreed and implemented, the first comprehensive treaty between the EU as a whole and any non-EU state on criminal law or policing issues. Following the Treaty of Amsterdam, which came into force 1 May 1999, the EU has the power under Article 38 of the Treaty on European Union (TEU) to negotiate and agree such treaties, and it is this Article which will be used to agree the planned treaty with the US.

To date, the only formal agreed link between the EU and any non-EU state in policing or criminal stems from the previous "association" with the Schengen Convention agreed between the EU and Norway and Iceland. However, a similar "association" with the Schengen rules is being negotiated with Switzerland. Also, the EU Council has since July 2001 been trying to apply Article 38 of the TEU to negotiate a treaty with Norway and Iceland to extend to those countries all EU rules on extradition and mutual assistance which have been agreed on top of the extradition and mutual assistance rules set out in the Schengen Convention, or which build upon those Schengen rules (such rules already apply to Norway and Iceland).

The treaty with the US will build on the existing treaties which most Member States have with the US as regards mutual assistance (which governs the collection and provision of evidence, but which extends in EU practice to cover such controversial matters as undercover policing operations and interception of telecommunications), and which all Member States have with the US as regards extradition.

General concerns

The first general concern is the parliamentary control over the treaty. Given the importance of the planned treaty for the rights of accused persons, and its likely broad scope given the scope of the planned treaty and the extent of Member States' links with the US, parliamentary control is essential. However, Article 38 of the TEU does not provide for any parliamentary involvement (of national parliaments or the European Parliament) at the stage of agreeing the mandate for negotiations or during the negotiations. In fact, up until conclusion of any negotiations, the content of those talks is, in principle, secret. While there is a long-established practice of involving the European Parliament (EP) informally at the early stages of negotiating treaties which will bind the European Community, this practice apparently has not been extended to policing and criminal matters.

As for the conclusion of the agreement, Article 38 TEU makes no reference to any involvement of the European Parliament. While it is arguable that conclusion of such agreements will be covered by the general obligation to consult the European Parliament on all EU policing and criminal law measures as set out in Article 39 TEU, it is not clear yet whether the EU Council and the Member States agree with this interpretation. In any event, Article 39 of the TEU only gives the EP the right to be consulted, not to veto or to insist on amendments to a proposed treaty.

Despite this limited or non-existent role for the EP, can national parliaments nonetheless assert control over implementation of the planned treaty? The answer is no. Article 38 TEU only gives each Member State the option (acting individually) to require national parliamentary assent before conclusion of a treaty on criminal law or policing. It remains to be seen whether any Member States will insist on this requirement. In fact, no Member State required national parliamentary assent when the EU last year agreed foreign policy treaties, subject to identical decision-making rules (according to Article 24 TEU), with the Federal Republic of Yugoslavia and the Former Yugoslav Republic of Macedonia. Even if some individual Member States do insist on national ratification of the future treaty, Article 38 TEU permits the other Member States to decide that the treaty will nonetheless apply to them provisionally. So the only way that national parliaments can block the application of the planned treaty is if (improbably) all Member States opt to require national parliamentary assent before the treaty is concluded, or if those Member States which do not submit the treaty to their national parliaments decide that they will not apply the future treaty provisionally.

What about judicial control? It is not clear whether the usual powers of the EU Court of Justice over criminal law and policing matters will apply to treaties concluded following the application of Article 38 of the TEU. In any event, the UK, Ireland and Denmark have decided to date that the Court of Justice will have no powers to receive any cases from their national courts concerning any aspect of EU policing and criminal law.

The draft mandate is also vague as regards human rights protection. In recent years, the argument for accelerated extradition proceedings and measures to ensure more mutual assistance in criminal matters within the EU has been based on the principle that all Member States have ratified the European Convention on Human Rights (ECHR), so all can be assumed to guarantee a minimum level of protection in criminal trials. Obviously, the US has not ratified the ECHR and cannot ratify it, any more than the EU or its Member States can apply the United States Bill of Rights. But there is no suggestion in the Council document that the future treaty will have a general provision allowing extradition or mutual assistance to be refused in particular cases where there are grounds for doubting that a person will receive a fair trial, particularly where the standards that would be applied are below the minimum guarantees in the ECHR or the Bill of Rights respectively.

Concerns on mutual assistance

The mandate provisions on banking secrecy make no references to the limits on banking secrecy which were agreed within the EU when the Member States negotiated the Protocol to the EU Mutual Assistance Convention (signed in October 2001).

There is also limited specific reference to data protection concerns, which are particularly relevant to banking enquiries. The mandate indicates that these issues will only be raised by the EU side at a later date in the negotiations, raising the risk that an adequate level of data protection will not be agreed at the outset.

The mandate suggests that the 'probable cause' requirement will be dropped by the US side. This will likely also entail dropping any such requirement applied by the common law Member States of the EU (the UK and Ireland) as regards requests from the United States. Historically, this requirement has been considered essential by common law countries to ensure that requests for mutual assistance are genuinely motivated.

Next, the mandate envisions US participation in joint investigation teams. But there is no reference to the controls on such teams set out in the EU Mutual Assistance Convention or the proposed framework decision on such teams, such as data protection rules, rules on the civil and criminal liability of team members and the legal rules applied to the operation of the teams.

The provisions on videoconferencing similarly omit to mention the protections in the EU Mutual Assistance Convention, such as the protection of either state's law as regards the refusal to testify, the power of a suspect to refuse to testify, and protections for a suspect under the ECHR and possible further measures.

As for investigation procedures, the mandate foresees measures on searches and seizure and interception of telecommunications. There is no express reference to protecting the reservations on many grounds (for instance, dual criminality, extraditability, national law rules) which EU Member States can maintain to refuse to apply a search and seizure request from another Member State, even after extensive discussion of this issue when agreeing the EU Mutual Assistance Convention and its Protocol. Similarly, there is no express reference to the need to ensure that the guarantees of Article 8 of the ECHR (concerning the right to private and family life) and any higher standards applied by national law of the Member States, along with the corresponding protections in the US Bill of Rights, are applied fully when the two sides cooperate on interception of telecommunications.

Next, as regards the death penalty, it is highly questionable that some Member States appear willing to assist the US in cases where the death penalty might be applied, even though all Member States have ratified Protocol 6 to the ECHR (which bans the death penalty except in wartime) and all have signed the very recent Protocol 13 to the ECHR (which bans the death penalty absolutely). It is clear that assisting a state to carry out the death penalty amounts to complicity with the application of that punishment, and so at the very least violates the spirit of the Member States' obligation to abolish that penalty and the EU's frequently-expressed commitment to abolish it world-wide.

Finally, as regards asset forfeiture and confiscation, there is no reference to the protections provided for in Protocol 1 to the ECHR on property rights or Article 6 ECHR on the right to a fair trial.

Concerns on extradition

The EU wants the US to remove the probable cause requirement for extradition, a traditional safeguard which common law countries require to ensure that all intended prosecutions following an extradition are genuine, particularly to protect their own nationals from facing an unfair trial in a foreign country. This could well mean that the UK and Ireland have to remove any similar protection against extradition to the United States.

The mandate suggests reducing the scope of the classic political offence exception to extradition. Within the Council of Europe, where all states have ratified the ECHR, this protection has only been weakened for certain specified very serious offences closely connected with terrorism, subject to possible reservations (see the European Convention on Suppression of Terrorism). Even within the EU, where the exception would be abolished completely by the Framework Decision on the European Arrest Warrant, there is still a possibility of refusing extradition in cases of persecution of the requested person, according to the preamble to the Framework Decision. In relations with the United States, given the differences in the legal, political and constitutional structures of the two sides, any significant reduction in the scope of the exception would be highly questionable.

As for extradition of nationals, a ban on extraditing nationals is considered an essential protection in a number of Member States, featuring in national constitutions. While the EU Framework Decision on arrest warrants will require Member States to drop that protection as between the Member States, this protection has been dropped in the context of a common citizenship of the European Union, a move toward harmonising criminal law in the EU, the creation of an area of 'freedom, security and justice' and ratification of the ECHR by all Member States. It is rather more questionable to drop this protection with a non-Member State which has, moreover, not ratified the ECHR.

As regards the limitation period for crime, the EU Extradition Convention of 1996 still permits a requested State to refuse to extradite a fugitive where the requesting state has run out of time to prosecute that person. In fact, the Council of Europe Convention on extradition still permits refusal due to lapse of time in either the requesting or requested state. It is obviously questionable whether the EU should go further than these provisions in a treaty with the US.

Finally, the mandate makes no reference to further reasons for refusing to extradite. For example, there is no reference to protection against double jeopardy for persons subject to extradition requests. This rule (often referred to as ne bis in idem) protects against a second criminal trial for the same facts in a Member State after a person has been finally judged in another Member State. It is set out in the Schengen Convention and also in the EU Charter of Fundamental Rights, and is a mandatory reason for refusing to execute a European arrest warrant, according to the Framework Decision on that issue. Because it is in the Schengen Convention, the rule also covers Norway and Iceland, and will cover Switzerland if that state becomes associated to the Schengen rules. Moreover, the Council of Europe Convention on extradition also sets out a more limited rule on ne bis in idem, and a Protocol to that Convention ratified by most EU Member States extends that principle further. In light of this, it is questionable whether an extradition treaty should be concluded with the US without the inclusion of this essential protection. Logically, the rule should also be a mandatory ground for refusal to cooperate with a mutual assistance request, as it arguably is at present within the EU (along with Norway and Iceland).

Similarly, following other essential protections in EU and Council of Europe measures, it will be questionable if the planned treaty fails to include rules regarding refusal to extradite if one state does not recognise the criminal jurisdictional rules of the other, or where the requested person should not be moved on humanitarian grounds.

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