European Arrest Warrant

UNDERSTANDING THE EUROPEAN ARREST WARRANT

Alistair McConnachie writes: The European Arrest Warrant came into force on the 1st January 2004. As the report below explains, the most significant change is the abolition of "dual criminality." This means that someone in Britain can be deported for something which is not considered a crime in Britain. This doesn't make a difference in those cases -- such as murder, rape, arson, and so on -- where the action is considered criminal wherever you may be.

However, it will make a difference in those cases where someone is accused on grounds which are not considered criminal in his own country. For example, Germany has severe laws against questioning certain aspects of WW2 history, which it terms "holocaust denial". Such historical enquiry is not considered a crime in Britain ... at least not yet. However, a British citizen who broke this law in Germany, and then returned to Britain, could be extradited on this charge.

Note, however, that an extradition request can only be made if the alleged crime was committed in the country which is asking for extradition. It is not possible to be extradited to, say, Germany, for something which you have said or done in Britain.

But the situation does become blurred, however, regarding internet forums. If you post something from Britain, on an internet forum which is hosted in, say, Germany, would that be prosecutable? That is the question. See the second article below, for further comment on this controversial possibility.

Britain Signs up to Fast-Track EU Arrests
by Anton LaGuardia
The Daily Telegraph
2nd January 2004, p. 8.

The new European arrest warrant came into force yesterday, allowing British citizens to be extradited under a fast track process even if their actions do not constitute an offence in Britain.

The scheme initially applies to only seven countries but will later expand to include all EU members.

There has been widespread concern that British citizens' right to a fair trial will be endangered by the removal of many of the previous extradition safeguards.

These fears will be magnified after May, when the European Union admits 10 new members -- mostly former communist countries in central and eastern Europe.

"We are very worried about some of the accession countries," said Stephen Jakobi, director of the lobby group Fair Trials Abroad. "Poland and Hungary have good standards, but the impression we are getting is that there are a lot of problems with corruption in the judicial systems of some of the incoming states."

Many of the new members have come under attack from the European Commission
for the desperately slow pace of justice.

David Davis, the shadow home secretary, told The Daily Telegraph, "It is ludicrous that people can be extradited for an action that may not be an offence in this country. The more countries that become involved, some having only a short acquaintance with democracy, the more serious the problem becomes."

The new warrant -- rushed through as an anti-terrorist response to September 11 attacks on America -- is seen by the Home Office as an important step in preventing criminals escaping justice by going to another country.

But it has had a faltering start. Only eight countries of the current 15 EU states have so far adopted it in time for the launch yesterday: Britain, Belgium, Denmark, Finland, Ireland, Portugal, Spain and Sweden. The Government hopes the rest will join by Easter.

The Government argues that the warrant will speed up the cumbersome extradition process while ensuring that a suspect's basic rights -- including a limited right of appeal to the House of Lords -- are protected by British judges.

In particular, it says that the European warrant will deny fugitives from British justice a safe haven in states that previously refused to extradite their own citizens -- including Denmark, France, Germany, Greece and Luxembourg.

But critics argue that the central assumption of the new warrant - that the justice systems in all European countries are equally fair -- is deeply flawed.

Mr Jakobi describes a "two-tier" system of justice in Europe, based on the experience of more than 1,000 cases taken up by Fair Trials Abroad. He places Britain, Scandinavian countries, Germany, the Netherlands, Austria and Ireland in the "top group" of states where a European arrest warrant could work well.

But he maintains that in other countries -- including France, Belgium, Spain and Greece -- a foreigner is almost always convicted regardless of the evidence.

The European arrest warrant extends well beyond terrorist-related cases to all offences that carry a sentence of a year or more in the country seeking an extradition. Many of the offences, such as murder, grievous bodily injury, rape arson, armed robbery, kidnapping, racketeering and trafficking in drugs or weapons are uncontroversial.

But there are also ambiguous crimes such as racism and xenophobia, that are interpreted differently in different countries.

The most significant change is the abolition in most cases of "dual criminality" -- the requirement that a person can only be extradited for an action to be considered an offence in both the country seeking extradition and the country being asked to surrender a suspect.

Britons face extradition for 'thought crime' on net
by Philip Johnston, Home Affairs Editor
The Daily Telegraph
18th February 2003, pp.1+2.

British citizens will be extradited for what critics have called a "thought crime" under a new European arrest warrant, the Government has conceded.

Campaigners fear they could even face trial for broadcasting "xenophobic or racist" remarks -- such as denying the Holocaust -- on an internet chatroom in another country.

The Government has undertaken that if such "offences" take place in Britain the perpetrators would not be extradited -- but it will be for the courts to decide the location of the crime.

This opens up the prospect of a judge agreeing to extradite someone whose observations, though made in Britain, were broadcast exclusively in a country where they constitute a crime.

Legislation now before Parliament will make "xenophobia and racism" one of 32 crimes for which the European arrest warrant can be issued without the existing safeguard of dual criminality. This requires that an extraditable offence must also be a crime in the UK.

Alongside the arrest warrant, EU ministers are negotiating a new directive to establish a common set of offences to criminalise xenophobia and racism.

Countries such as Germany and Austria have crimes such as denying the Holocaust which have no equivalent in Britain. Under current laws, if a British citizen committed this offence in Germany and returned to the UK, he could not be extradited.

However, this will change when the arrest warrant becomes law next year. Lord Filkin, the Home Office minister, told MPs: "If someone went to Germany and stood up in Cologne market place and shouted the odds, denying the Holocaust, and then came back [to Britain], they would be subject to extradition under the European arrest warrant."

Holocaust denial laws are in place in seven EU countries but they would be a big departure for Britain, where a risk of fomenting public disorder is needed before a thought becomes a crime.

A German historian who claimed that Auschwitz prisoners enjoyed cinemas, a swimming pool and brothels was sentenced to 10 months in jail.

Lord Filkin has insisted that no one would be extradited "in respect of conduct which has occurred here and which is legal here". But when he was asked by the European scrutiny committee of the House of Commons whether comments originating in Britain but carried abroad on television or through an internet chatroom would be extraditable, he said: "It will be for the courts to decide."

While he was adamant that a British citizen would not be extradited for a xenophobia or racism offence if part of the conduct took place in the UK, the committee asked whether this principle would be made clear in the Extradition Bill now before Parliament.

The proposed EU directive would extend the offences of racism and xenophobia to include discrimination on the grounds of religious conviction -- something that was dropped by the Government more than a year ago following fierce opposition.

Britain has negotiated a deal under which the offences will only apply when they involve incitement to violence. Lord Filkin said this was in line with current UK race laws.

However, Britain has been forced to concede a review after two years at which point the directive could be extended to opinions that are simply considered offensive and not just those likely to incite violence. Agreement on the directive has been held up because some EU countries want a "low threshold for criminality on these issues".

Philip Duly, campaign manager for the Freedom Association, said the Government should protect citizens from extradition for what he called "thought crimes".

He added: "The Government has previously maintained that no one will be extradited for conduct which is not a crime in the UK. But here we have Lord Filkin admitting that there are circumstances which will be decided not by ministers but by courts."