European Arrest Warrant: enough is enough

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Julian Assange of Wikileaks is not the only one who thinks there are flaws in the working of the European Arrest Warrant (EAW).

He has been joined now by no less than the Commissioner of Justice, Viviane Reding, on the occasion of the third European Commission report on the implementation of the EAW.

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There have been grave reservations about the use of the EAW for some time.

Fair Trials International has recently listed some of the problems.

The Commission’s report also outlines some: firstly, no entitlement to legal representation in the issuing state during the surrender proceedings in the executing state.

Secondly, detention conditions in some Member States, combined with sometimes lengthy pre-trial detention for surrendered people; and the non-uniform application of a proportionality check by issuing states, resulting in requests for surrender for relatively minor offences that, in the absence of a proportionality check in the executing state, must be executed.

These anxieties have percolated right to the top of the system: last year, the EU’s Council of Ministers amended its handbook on how to issue an EAW, to make sure that there was more proportionality in its use and that Member States considered other measures they could take to achieve their ends.

First, some facts and figures.

Between 2005 and 2009, 54,689 EAWs were issued and 11,630 EAWs were executed.

During that period, between 51% and 62% of requested persons consented to their surrender, on average within 14 to 17 days.

The average surrender time for those who did not consent was 48 days. (This contrasts with the pre-EAW position of a one-year average for the extradition of requested people.)

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More than 1,000 EAWs are currently issued every month.

Much attention is focused in this country on the UK-US extradition treaty, but figures from 2009 show that since 2003, 63 people were extradited to the US from the UK, while in 2009/10 699 people were extradited from the UK to other EU member states under the EAW.

There are differences in the way Member States use it, too: Poland requested 4,844 extraditions in 2009, by far the highest number of any Member State (twice that of its nearest rival, Germany, which had a figure of just half that) and accounting for 40% of all those dealt with by Britain, whereas the UK made just 220 requests in all.

Now Commissioner Reding has waded in, following the adoption of the report mentioned above.

The report indicated that the system is clogged with extradition requests for minor crimes, such as possession of small quantities of prohibited substances or minor thefts, which is not at all what was originally envisaged by the system.

The Commissioner said: ‘European arrest warrants should not be issued mechanically, or automatically, for crimes that are not very serious such as bicycle theft.’

Instead, the Commission would like the Member States to take account of a number of factors, including the seriousness of the offence, the length of the sentence, the existence of an alternative approach that would be less onerous for both the person sought and the executing authority, and a cost/benefit analysis of the execution of the EAW.

There is a disproportionate effect on the liberty and freedom of requested people when EAWs are issued concerning cases for which (pre-trial) detention would otherwise be felt inappropriate.

In addition, an overload of such requests may be costly for the executing Member States.

It might also lead to a situation in which the executing judicial authorities (as opposed to the issuing authorities) feel inclined to apply a proportionality test, thus introducing a ground for refusal that is not in conformity with the Council Framework Decision or with the principle of mutual recognition on which the measure is based.

To counter criticisms, the Commission places heavy emphasis on the minimum procedural safeguards that are being introduced for suspects and defendants at EU level, as a way of rebalancing the equilibrium between prosecution and defence.

The Commission has already seen to the safe passage of the right to interpretation and translation in October 2010.

The right to a letter of rights is in the pipeline, and coming up soon will be the right to pre-trial legal advice and at-trial legal aid.

That will correct somewhat the current very pronounced pro-prosecution bias that the EAW has introduced.

It is good to know that at least the Commission is aware of the problems of the EAW, and is continuing to try to resolve them.

That might not be much comfort to people currently suffering without good cause under its weight, but it might ensure that there are fewer of them in the future.

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