EU: European arrest warrant
01 August 2001
On 20 September 2001, the European Commission presented its proposal for European arrest warrants as a replacement for extradition procedures to the special Council of justice and home affairs ministers convened to discuss the terrorist attacks in America nine days earlier. The ministers announced that they would agree the text at the justice and home affairs council on 6-7 December 2001.
The speed with which EU governments intend to agree such a complex and detailed proposal is both unprecedented and astonishing. It does not deal solely with terrorist offences, nor does it not seek to “simplify” extradition for serious offences in line with EU mandates. It is in fact so broad that it exceeds the aim of creating a “single European legal area for extradition” that the EU said last year was a “long-term objective” for 2010.
Goodbye extradition, hello ’Eurowarrants’
At present, extradition requests can be made in two ways. ’Provisional arrest requests’, where one state requests another, usually through police channels, to arrest the subject of a domestic warrant. If that person’s whereabouts are known, the request is made bilaterally - if not, an international “alert” is issued (via the Schengen Information System (SIS) in participating states or by way of an international arrest warrant through Interpol). “Full order requests”, are completed extradition papers sent in advance of the arrest through diplomatic channels. The proposed Framework Decision will replace all EU extradition procedures with EU-wide arrest warrants issued directly by a judicial authority in one EU member state and treated in largely the same way as a domestic warrant by the judicial authorities in all the others (the “mutual recognition” principle). These “Eurowarrants” will count as complete requests for the location, arrest, detention and surrender of a fugitive and will also be used for “searching”, and by implication, seizure.
Indictable offences
After their first reading of the Commission’s proposal, EU government delegations were split over the potential range of offences to which EU warrants will apply. Under current extradition rules, the principal requirement is ’dual criminality’ - the offence must be a crime in both the requesting and requested states, and punishable in both states by a minimum custodial sentence (at least 12 months imprisonment in the requesting state and six months in the requested state under the 1996 EU extradition convention). Four options to decide the scope of the new system are now on the table. Widest of these is a “general scope” and the total abolition of dual criminality. This is unlikely because it would mean that a member state could effectively apply its criminal law to legitimate behaviour in another (’extraterritoriality’). The narrowest option, and least objectionable from a civil liberties viewpoint, is restricting the scope to “harmonised”, “positive list” of EU offences. Eurowarrants could then only be issued where EU member states have similar definitions and minimum sanctions for offences in their criminal law, but governments may be reluctant to leave existing extradition procedures in place for other offences. A third option is a restricted dual criminality requirement, where extradition would not be allowed where the acts took place in any state not criminalising those acts, although, alarmingly, no reference is made to maintaining the minimum sentence threshold. The remaining possibility is a positive list combined with a minimum sentence threshold for the remaining offences. The positive list in another EU proposal on the mutual recognition of orders to freeze assets and evidence includes drug trafficking, EC budget fraud, money laundering, counterfeiting of currency, corruption, trafficking in human beings, terrorism, trafficking in firearms, child pornography and sexual exploitation, and participation in a criminal organisation. Murder, theft, blackmail, kidnapping, forgery, facilitatio