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Spain and Italy pioneer a "common area of security and justice"

28 March 2012

Spain and Italy have taken the lead in EU plans to create a "European area of justice" stemming from the Tampere Summit in October 1999, after signing agreements regarding extradition procedures and judicial cooperation (Statewatch bulletin vol 9 nos 3&4, 5). A bilateral "Protocol on Extradition" signed by Justice Ministers Angel Acebes and Piero Fassino on 20 July 2000 led to the establishment of a joint working group for the development of a "common area of freedom, security and justice" (Statewatch bulletin, vol 10 no 5). It first met on 26-27 October to draft an agreement to abolish extradition procedures between the two countries, replacing them with administrative transfers. On 28 November the resulting treaty, signed in Rome, covers "the pursuit of serious crime by superceding extradition within a common area of justice" for offences including terrorism, drug trafficking, people trafficking, arms dealing and sexual abuse of minors. It will apply to offences carrying a maximum prison sentence of no less than four years, affecting persons who have been sentenced or who are subject to measures limiting their personal freedom.

Apart from replacing extradition procedures with administrative transfers, the treaty signed by the Ministers4 also covers the mutual recognition of criminal judgements, formal procedures for requesting custody, demanding arrests and the transfer of persons facing judicial sentences or proceedings, and for dealing with extradition requests from third countries. The only valid reasons for refusal by authorities in the requested country to hand over suspected or convicted criminals are a) inadequate documentation relating to the extradition request and b) cases in which the object of the request is granted immunity by legislation in the "requested state". If the person requested for custody is serving a custodial sentence or is undergoing criminal proceedings in the requested country, the transfer is postponed to their completion.

Spain and Italy will exchange liaison magistrates to oversee the implementation of the provisions in the treaty after ratification by both countries. The documentation which must be attached to extradition requests includes "a brief account describing the [relevant] criminal events", the judicial classification of these, an outline of the applicable criminal legislation, of expected sentences, length of time required to ascertain events, and available information which is useful for the identification (and arrest) of suspects. A certified copy of the relevant judicial order must also be included. The Italian Justice ministry claimed the treaty will "place Italy and Spain in a position as pioneers of a kind of 'strengthened cooperation' between members of the European Union". This cooperation is explicitly aimed at eliminating obstacles which "may give rise to areas of impunity" in different national territories, resulting from differences in legislation. This would remove the "dual criminality" rule, (Statewatch news online, June) whereby requests for assistance are subject to events constituting an offence in the requested state's legislation, in the instances affected by the treaty.

By converting extradition procedures into administrative transfers, and introducing the principle of mutual recognition, judicial scrutiny of decisions will inevitably be reduced. The grounds for refusal of an extradition request are strictly limited and the power of judicial authorities in requested countries to review decisions will decrease. The impetus for enhanced judicial cooperation was provided by a lengthy controversy over members of Italian organised crime syndicates living in Spain. Italian international arrest warrants and extradition requests were left unattended in cases where sentences were passed after judgements made in absentia. These were not recognised by the Spanish Constitutional Court, prompting accusations that Spain was becoming a haven for mafiosi. The Constitutional Court had ruled in the case of Mafia boss Giovanni Greco that judgements passed in absentia infringe defence rights (see Statewatch bulletin vol 10 no 5) as failure to attend a trial should not be interpreted as a defendant voluntarily waiving his right to a proper defence, "because the appearance of the accused normally results in his/her arrest".

Third pillar agreements at an EU level and the Spanish government's ongoing pursuit of international cooperation to secure the extradition of people linked to Basque separatist armed group ETA were likely motives behind Spain accepting Italy's argument in favour of in absentia trials. Based on the 1979 "Additional Protocol of the European Convention on Extradition", Italy claimed that defence rights are respected if the accused are defended by lawyers of their choice, thereby justifying extradition. Spain's acceptance of orders issued following judgements passed in absentia was the main development featured in the July Protocol on Extradition, alongside plans for fast-track extradition procedures, and a statement by the two countries of mutual confidence and trust in each other's legal systems.

Fair Trials Abroad (FTA), a legal rights group concerned with the treatment of persons in foreign jurisdictions, has stressed that discussions on a European legal space represent a "serious threat" unless a "twin-track" approach is developed to ensure equal weight is given to the fight against crime and the protection of individuals' civil liberties. Concerns include the disproportionate numbers of foreign prisoners in remand across the EU: FTA argued in 1995 that up to half of these would not be imprisoned in their own countries. FTA criticised the Tampere Conference's decision to press ahead with plans for fast-track extradition "without attention drawn to the iniquitous discrimination inherent in current provisions for provisional liberty for foreigners".

FTA also reported a shortlist produced in 1998 by the Council of Europe (Statewatch news online, June), highlighting problems in national jurisdictions which require improvement. These included political interference in the administration of justice, corruption, a shortage of resources, delays, prosecution being too close to the judiciary, racism and xenophobia. FTA singled out Spain (alongside Portugal, Greece and Belgium) as one of the EU countries whose judicial standards caused most concern. Major problems were noted in the field of access to justice, including a lack of funds for persons on trial to obtain legal advice and assistance, and poor standards of interpreting and translation. FTA also labelled the in absentia trials which take place in Italy as "an anachronism". Furthermore, legal reforms are being introduced in Spain to combat terrorism (Statewatch bulletin vol 10 no 5) have important implications on civil liberties and will fall within the scope of the treaty between Spain and Italy. They are aimed at treating minors as adults in cases related to terrorism, and expanding the definition of "terrorism" to include " justifying terrorism" (apologia) and street violence (kale borroka).

Sources: Trattato tra la Repubblica Italiana ed il Regno di Spagna per il perseguimento di gravi reati attraverso il superamento dell'estradizione in uno spazio di giustizia (Treaty between the Italian Republic and the Kingdom of Spain for the pursuit of serious crime through the superceding of extradition in a common area of justice) 28.11.00 Italian Justice Ministry press statements 28.10.00, 28.11.00 Spanish Justice Ministry press statement 20.7.00 Mutual Recognition of final decisions in criminal matters: response to the communication from the Commission to the Council and the European Parliament, dated 26.7.00 ref: COM(2000) 495 final, Fair Trials Abroad, 12.9.00 "A Genuine European Area of Justice", The Tampere Scoreboard and Civil Liberties, Fair trials Abroad, December 1999 Tampere Conference Leaves Citizens at Risk, 10.1.2001 The mutual recognition of criminal judgements in the EU: will the free movement of prosecutions create barriers to genuine criminal justice?, Statewatch news online, June 2000