The European Arrest Warrant
10 March 2012: Annie Machon - The Extradition Farce - why the delay in reform?: "[The UK Extradition Act] was rushed through Parliament in the midst of the post-9/11 terrorism flap. And, of course, this is the very act that is currently being used and abused to extradite Julian Assange to Sweden merely for police questioning (he has not even been charged with any crime), whence he can be "temporarily surrendered" to the delights of the US judicial process. Hmm, could this possibly be the reason for the delay in reforming the Act?"
5 March 2012: FTI issues statement Three months on and still no extradition reform in sight
5 December 2011: The UK Parliament unanimously votes that the UK Extradition Act 2003 requires ’urgent reform’
The Week: European Arrest Warrants: unjust and ripe for reform? (2 November 2011):
"European Arrest Warrants are once again in the news after WikiLeaks boss Julian Assange lost an appeal against extradition to Sweden and MPs failed in a bid to have the issue debate in the House of Commons. EAWs will now be debated on November 24 at Westminster Hall, but there will be no vote - and MPs and campaigners are baffled." Read the article.
The EAW and Julian Assange
The European Arrest Warrant (EAW) for Julian Assange has a number of problems which are being challenged in UK courts on narrow, technical grounds and substantive grounds - namely that he has not been charged for any offence. Beyond the irregularities of Julian Assange’s EAW, this high profile case has brought attention to the flaws and abuses of the EAW system itself.
The EAW has led to more challenges before European Courts than any other EU law. On average, about 1000 EAWs are issued in the EU every month, the overwhelming majority for minor crimes. Between 2005 and 2009 54,689 EAWs were issued in the EU.
Problems with the EAW for Julian Assange
The EAW for Julian Assange has been challenged on three grounds: Firstly, technical grounds (such as the wording in the EAW, who issued it, and for what purpose); secondly, on grounds that the Prosecution was acting in abuse of process; and thirdly, on the grounds that the EAW conflicts with UK and European Human Rights legislation. While in the February Hearing, Julian Assange’s legal team focussed on all three aspects, in the High Court Ruling the new legal team narrowed the challenge to the EAW to three points relating to the first of these grounds. For the legal arguments, visit February Hearing and High Court Ruling.
In general, the problems with Julian Assange’s EAW come down to:
Facts do not meet the alleged conduct specified in Sexual Offences.
The EAW is based on an Investigation that has been carried out improperly.
The EAW has been issued in abuse of process. The Prosecution issued the EAW for questioning, not prosecution. The Prosecution has not provided Assange with evidence in English. The Prosecution fails to disclose evidence that demonstrates abuse of process. The Prosecution has denied Julian Assange his right to confidentiality and increased the risk of facing an unfair trial given that the Swedish media has already labeled him as a ’double rapist’.
For a summary of the irregularities of Julian Assange’s EAW, go to the Controversies tab, and read this summary, published in the Swedish publication DSM (in English).
EAW Conflicts with UK and European Human Rights Law
UK Parliament: EAW violates UK and European Human Rights legislation
June 2011: the House of Lords/House of Commons Joint Committee on Human Rights released its evaluation of UK extradition policy. It looked specifically at the EAW system. It urged the government to reform the EU Framework Decision. While renegotiation at the EU-level is more complex than amending UK legislation, the government has stated that "if the level of dissatisfaction with this piece of legislation is very great indeed, it would be right to try to do something about it." The June 2011 report calls for changes in the Framework decision, which would require renegotiation at the EU level. Highlights from the report that are relevant to the consideration of the Julian Assange EAW:
Abuse of process - Use of EAW for the purposes of an investigation
The Committee states (paragraph 168):
an EAW should not be used for the purposes of investigation... a Member State ’cannot just have a fishing expedition’.
As it does appear that requests are being made merely for the purposes of investigation, we urge the Government to ensure that other Member States do not use the European Arrest Warrant for purposes of investigation, if necessary by amendment to the Framework Decision.
We recommend that, where there are doubts as to the stage of proceedings reached in the requesting state, the facility for further information provided by the Framework Decision and the Extradition Act 2003 should be used. The requesting state should be asked to provide information on the indictment process under their national law, the stage of proceedings reached, the date set for the first hearing and an assurance that the individual will not be interrogated on arrival.
Problems with ’mutual recognition’ - double criminality
The EAW Framework Decision removes the double criminality requirement for 32 serious offences (in article 2.2), including rape, murder, drugs trafficking and terrorism. The Parliamentary committee stated:
"The exclusion of the 32 offences from the double criminality requirement raises some difficult questions. The Government and the Extradition Review may wish to review the list of 32 offences for which double criminality is not considered, with a view to whether certain conduct should be excluded from the definitions of these offences" and suggests that the issue be renegotiated at the EU level (paragraph 165).
One organisation which informed the committee, the Freedom Association, argued that the EAW’s abolishment of the double criminality requirement had "created a situation where laws voted in by elected officials in the UK Parliament have become null and void, due to the fact that UK citizens can be extradited for something that is not a crime in the UK." It concluded that "the European Arrest Warrant either needs to change so that double criminality requirements and the requirement for prima facie evidence are re-introduced or that the UK needs to remove itself from the European Arrest Warrant system." (paragraph 162).
The organisations Liberty and JUSTICE raised concerns in relation to the definition of the offences - Liberty described these as "extremely broad to the point of being meaningless." Belgium has addressed the problem of the definition in offences that do not require double criminality by introducing legislation which excluded abortion and euthanasia from the category of "murder and grievous bodily harm". This allowed Belgium to not be under an obligation to extradite a person for the act of abortion under the definition of the offence of murder. This measure was criticised by the European Commission, because it went against the principle of mutual trust.
Problems with ’mutual recognition’ - proportionality
The Parliamentary committee stated:
"We note the increasing number of European Arrest Warrant requests received by the UK. We have serious concerns about the disproportionate impact of extradition where it is requested for a relatively minor offence."
The UK Government should work with the European Commission and "other Member States to implement a proportionality principle in the Framework Decision, both for operational reasons and to ensure that the human rights implications of extradition are not disproportionate to the alleged crime."
"We are not convinced that informal guidelines, bilateral discussions with the authorities of other Member States or a public interest test operated by the authorities in the requested country would be operationally practical or successful in the long-term." (paragraphs 158 and 159).
Human Rights guarantees
Fair Trials International’s submission to the Committee: the human rights test of the EAW made it "almost impossible" to challenge successfully extradition on Article 6 grounds: "The mere theoretical availability of a legal remedy in the issuing state should not absolve the executing state of the duty to conduct a proper legal review of the risk of infringement raised by the requested extradition and to provide the protection necessary to safeguard those rights, including where necessary by refusing to extradite." (FTI, paragraph 53).
"The defendant should have a realistic opportunity to rebut the presumption that their human rights will be respected if extradited to a country which is a signatory to the ECHR or with which the UK has good relations" (paragraph 71).
"The effectiveness of human rights protection would be improved if judges in extradition cases took a more active role in the extradition process, through the implementation of safeguards and the use of the human rights bar to ensure that the role of a judge in an extradition case is more than only ’rubber stamping’ extradition requests" (paragraph 78).
European Commission: EAW is regularly used disproportionately
April 2011: the European Commission report (COM (2011) 175) on the operation of the European Arrest Warrant made a number of observations and recommendations:
There "must be adoption of the measures in the [EU] roadmap on procedural rights [...] to ensure that fundamental rights and freedoms are protected."
"confidence in the application of the EAW has been undermined by the systematic issue of EAWs for the surrender of persons sought in respect of often very minor offences."
Recourse to the European Court of Human Rights is not sufficient given that it is only a remedy after the breach has occurred. This is not an effective means of safeguarding individuals rights nor of ensuring that signatories comply with the Convention’s standards.
"Before issuing an arrest warrant, Member State judicial authorities should consider the seriousness of the offence, length of sentence and the costs and benefits of executing an arrest warrant. The principle of proportionality needs to be carefully respected when implementing the warrant."
Member States must ensure that "judicial practitioners, such as prosecutors" do not abuse the EAW system to issue arrest warrant for minor offences, including in those countries where prosecution is mandatory.
Council of Europe - Human Rights Commissioner
March 2011: Thomas Hammarberg, Council of Europe Commissioner for Human rights, described the overuse of EAWs as a threat to human rights:
There has been "repeated criticism of the manner in which the EAW has functioned in a number of concrete cases. This criticism must be taken seriously. Human rights organisations have expressed concerns about the imprisonment of innocent persons, disproportionate arrests, violations of procedural rights and the impossibility in some countries for an innocent person to appeal against a decision to be surrendered. The problems appear to have worsened with the increase of the number of EAWs... The EAW has been used in cases for which it was not intended, sometimes with harsh consequences on the lives of the persons concerned. It is thus high time to reform a system that affects thousands of persons every year."
Traditional safeguards in extradition agreements
Customary international law imposes no obligation on states to extradite. A number of important procedural safeguards and rules to protect individuals from extradition in unfair circumstances has developed in international law over time. These safeguards include:
The requirement of dual criminality.
The presence of prima facie evidence
The possibility of a fair trial
The protection of the individual against possible persecution at the hands of the requesting state.
Even before the UK Extradition Act was adopted, the UK Parliament European Scrutiny Committee (HC Paper 152) raised the same concerns that the committee raised in 2011:
The absence of any explicit reference to the European Convention on Human Rights.
The abandonment of dual criminality.
The lack of definition of the offences for which this safeguard is being abandoned (Article 2.2 offences, which include rape).
The EAW strips courts of their powers and individuals of their rights
The Framework Decision created a bureaucratic channel for EU courts to fast-track the extradition process. But it severely limited the individual’s right to challenge the EAW order.
None of the traditional conditions for allowing extradition are present in the EAW system. The safeguards that existed in each of the EU countries were abolished and replaced by this new fast-track system. Underlying this overhaul was the unfounded assumption that since every EU member-state is subject to the European Convention on Human Rights, such protections are not required.
The existence of domestic laws and accession to international treaties guaranteeing respect for fundamental rights in principle are not in themselves sufficient to ensure adequate protection against the risk of ill-treatment. - MSS v Belgium and Greece.
The fact that the EAW stripped the courts of their powers and individuals of their protections led the German Constitutional Court to reject the equivalent of the 2003 Extradition Act on the grounds that the court was being asked to consent to an extradition blind-folded, when the court’s duty to individuals was to ensure their fundamental rights were respected. The latter fundamental obligation took precedence, and the Constitutional Court decided that it could not execute the EAWs based on a system of trust.
How could Julian Assange challenge extradition under the traditional safeguards?
Julian Assange can only challenge the EAW on narrow technical grounds. Challenging the EAW on fundamental problems - proportionality, the real risk of an unfair trial, abuse of process by the police investigators and the prosecutor - is very difficult, even when these are flagrant. (See FTI’s report on Gary Mann’s extradition to an ’unfair’ trial in Portugal, where he is currently serving a two-year prison sentence).
The Framework Decision:
prevents Julian Assange from demanding that Sweden show the merits of the alleged conducts (no prima facie requirement)
thwarts attempts to challenge the extradition order (’surrender’) on the grounds that fundamental rights will be breached given that all EU members are signatories to the European Convention of Human Rights and therefore would not violate basic human rights.
removes double criminality as a requirement because it assumes that offences that are listed under article 2.2. do not require a definition. This leads to serious miscarriages of justice given the varying definitions of offences - such as rape (consensual sex in Sweden) murder (abortion) and so on.
The EAW issued for Julian Assange ticks the "rape" box, despite the fact that the leading authority on sexual offences in the UK, the Oxford Professor Andrew Ashworth, argues that the conduct would not fall under rape in the UK given that the acts were consensual, and there is no allegation of criminal intent in Julian Assange’s conduct according to the police report.
The European Arrest Warrant (EAW) is a fast-track system for extraditions within the EU. Sweden has issued an EAW for Julian Assange.
Basic EAW Facts
The EAW is sent between judicial authorities, without involvement of an intermediary, removing the executive from the process. In the case against Julian Assange the EAW was issued by a prosecutor, not a judge, which is one of the grounds for challenging its validity.
The EAW process reduces and removes many of the traditional bars to extradition. Refusal to execute a valid warrant is only permitted in limited circumstances contained in sections 12-19 of the 2003 UK Extradition Act.
An EAW may be issued for an offence punishable by the law of the issuing state by a custodial sentence or a detention order for a maximum period of at least 12 months or, where a sentence has been passed, for sentences of at least four months.
The EAW includes a list of 32 serious offences (Article 2.2) which, if punishable by a custodial sentence of at least three years, can result in extradition "without verification of the double criminality of the act". (This includes the ’rape’ offence.)
The EAW only applies within the EU. Onward extradition to a country outside the EU requires agreement with the Member State which authorised the initial surrender.
What happens when an EAW is issued?
The process of extradition from the UK to EU countries follows the following steps (section numbers in brackets refer to the UK Extradition Act 2003):
* When an EAW is received by the United Kingdom, the Serious Organised Crime Agency (SOCA) certifies the warrant.
* Following the certification, the person is arrested and is brought before a judge to determine whether the person is that who is specified in the EAW; the judge may detain or bail the person. A date is set for an extradition hearing within 21 days unless the person consents to be extradited.
* At this hearing, the judge considers whether the offence is an extradition offence (s 10), any potential bars to extradition (s 11), whether the person was convicted in their absence (s 20) and human rights considerations (s 21).
* Once the decision is made, the requested person and the requesting judicial authority can appeal to the High Court and apply for leave to appeal to the Supreme Court against a decision of the High Court
* If the decision is made to extradite the requested person, surrender of the person must take place within 10 days of the decision being made final.
Why was it established?
The EAW was established in 2002 by the European Council - the political section of the EU - along with other counter-terrorism legislation after 11 September 2001. Extradition procedures are simplified to standardised forms listing offences for which one can be extradited. The EAW has created a streamlined system in the EU, but it is unfair. At Assange’s February Hearing, Assange’s lawyer Mark Stephens described the EAW as ’tickbox justice’ - ticking a box sets into motion cases of serious injustice. This has even been acknowledged by David Blunkett, the UK Home Secretary who agreed to the establishment of the EAW.
Where are the safeguards?
Although the preamble of the Framework Decision affirms fundamental rights, it provides no concrete measures for the courts to implement these. The EAW was a teaser of an EU policy package that was meant to establish common standards in criminal justice procedures across the EU. But for almost a decade the EAW has stood on its own. The legislation that is meant to ensure that the system carries with it certain safeguards has not been agreed on. The Council of Europe’s Commissioner for Human Rights, Thomas Hammarberg, has described the current system as ’a threat to human rights’.
Can the courts still decide?
The Framework Decision, which established the EAW, imposed a duty on the courts to extradite with certain narrow exceptions. The Council forced the courts to take a leap of faith: courts are obliged to operate under the principle of mutual recognition, where the court of one EU country has very limited power to call into question the decision of another’s.
Can an EAW be issued for questioning?
Julian Assange’s defence team challenges the validity of the EAW on both substantive and technical grounds. The substantive grounds are that DPP Marianne Ny acted disproportionately and in abuse of process by issuing the EAW. The EAW is disproportionate because Julian Assange is sought for questioning and not prosecution, given that he has not been charged for any offence. The UK Extradition Act of 2003, which incorporated the Framework Decision into UK legislation, states that for an EAW to be valid it must be issued for the purpose of being prosecuted:
"the [EAW] is issued with a view to his arrest and extradition to the category 1 territory for the purpose of being prosecuted for the offence." (Sec. 2(3b) UK Extradition Act 2003)
How is the EAW different from ’traditional’ extradition?
Extradition is called ’surrender’
EAWs are only decided by the courts of the two EU countries involved - the issuing (or requesting) state - in this case Sweden - and the executing state - the UK.
In theory, the extradition should take place within ten days after the executing court consenting to the EAW.
There are some exceptions to the duty to surrender, but their scope is limited.
How did EAW change the way the UK decided on extradition?
The UK’s body of extradition law was repealed in 2003. The 2003 Extradition Act stripped the UK courts of most of their powers in extradition cases, making their role bureaucratic. For many of the offences, including rape, the 2003 Extradition Act abolished one of the key principles of extradition proceedings: the principle of dual criminality (this simply means that the offence that a person is being extradited for must also be an offence according to the extraditing country’s laws). Under the previous legislation, there had also been room for political consideration after the courts had decided on extradition. The Secretary of State’s power to reject the extradition was weakened after 2003. The previous legislation also excluded political offences from offences that could lead to extradition, but the 2003 Extradition Act eliminated it because the Framework Decision does not contemplate political offences in the EU context.
Jennifer Robinson and Lizzie O’Shea: Sleepwalking Into Dangerous Territory 6 October 2011
Thomas Hammarberg (Council for Europe Commissioner for Human Rights) - Overuse of the European Arrest Warrant - a threat to human rights
Bernard Porter - The Victorians wouldn’t have stood for it
David Blunkett - European warrant is fair, but it is open to abuse
Fair Trials International - The European Arrest Warrant
Valentina Pop - Assange case highlights EU arrest warrant ’abuses’
Fair Trials International Memorandum to the UK Parliament Justice Committee
Jennifer Robinson’s Brief to Australian members of parliament (4 March 2011)
Fair Trials International - The European Arrest Warrant seven years on - the case for reform
Fair Trials International - The European Arrest Warrant - cases of injustice
Afua Hirsch - The Julian Assange Case: a mockery of extradition?
Jago Russell - Assange’s extradition is only the tip of the iceberg
Gerard Batten, MEP on Assange’s EAW
Briefing note to the European Parliament "Assange’s EAW and political purposes"