Extradition review could improve European Arrest Warrants – Rebecca Shaeffer
22 October 2011
Adam Wagner’s October 19th post on Sir Scott Baker’s Extradition Review Panel report noted that the document “mostly backed the status quo,” calling attention to its rejection of proposed reforms to the “forum bar” rule, the US/UK Treaty, and the lack of a prima facie case requirement.
While it’s true that the Report left much to be desired for extradition reform campaigners, especially those focusing on US/UK extradition issues, reformers can take comfort in the Report’s response to proposed reforms of the European Arrest Warrant (EAW), which offered a rather different picture than was reported.
The Scott Baker Review engaged with and reported on each of the key issues raised by Fair Trials International and others in submissions to the Panel. In contrast to our view, the Report does conclude that the EAW “broadly speaking operates satisfactorily.” Nevertheless, a number of the Report’s recommendations would, if implemented, improve how the EAW is operating. A roundup of the good, the bad, and the yet to be determined:
Proportionality: The report concludes that the “biggest problem” with the EAW system arises from the sheer number of EAWs issued by some countries without any consideration of whether it is appropriate or whether some less coercive method is available. It proposes that any future amendment to the EAW Framework Decision should include a proportionality test. However, the test would only apply in the country that issues the warrant, not the one executing it.
Human Rights based refusal grounds: FTI has long noted the apparent reluctance of courts to look behind assurances by requesting states about their ability to safeguard the rights of requested persons. The report acknowledges that fundamental rights guaranteed by the European Convention on Human Rights are nevertheless sometimes violated, and that surrender should not take place where this is incompatible with those rights. Despite this acknowledgement, the Panel concludes that courts have become more open to human rights arguments following cases like Targosinski v Poland, which overturned established authority that a district judge cannot refuse to hear evidence at first instance and must conduct a proper enquiry into any Human Rights arguments.
Premature extradition: EAWs are only supposed to be used to extradite people to serve prison sentences or be prosecuted. In Michael Turner’s case, however, an extradition took place even though no decision had yet been made to prosecute him. Andrew Symeou’s case also involved premature extradition and imprisonment in horrendous conditions for 11 months. To avoid extradition where a requesting state is not “trial ready,” the Panel suggests postponing surrender and placing the requested person on bail in the executing State until the presence of the defendant is required.
Insufficient legal representation and legal aid: Accessing legal aid for extradition cases in the UK can be prohibitively complicated, resulting in lack of access to representation in some cases. Furthermore, legal representation in the issuing state is needed in order to gain sufficient information from the prosecution case file to raise important bars to extradition, such as double jeopardy, and to ensure representation at pre-trial hearings that may occur pre-extradition. The Panel agreed, concluding that requested persons should be legally represented in both the issuing and executing Member States, and that in the UK, legal aid should no longer be means-tested.
Need to extend time limits in UK for lodging an appeal: Cases like that of Garry Mann illustrate the problems of rigid and overly short deadlines for appealing against extradition decisions. It is often impossible for clients to gather the evidence needed to alert the court to serious risks of fundamental rights infringements. The Panel responded positively, suggesting that either the time limit for filing appeals should be extended from 7 to 14 days, or the court given discretion to extend the time limit in the interests of justice.
Amendment to allow persons wanted under conviction EAWs to serve sentence in UK: In many cases, British nationals are extradited to begin a sentence only to immediately seek a prisoner transfer back home, wasting resources in both states. The Panel suggests that judges be permitted to refuse to surrender a convicted person if the person is a British resident or national living in the UK, and sentence is 12 months or less, while the person could serve the sentence in the UK.
Withdrawal of EAWs when extradition refused (Schengen alerts): In cases like Deborah Dark’s, even though EAWs have been properly refused by executing states, these refusals are not recognised by issuing states, leading to the person risking re-arrest and imprisonment each time they cross an EU border. Unfortunately, the Panel refused reform on this issue, claiming it was for the EU to reform, not the UK.
This is a guest post by Rebecca Shaeffer, a legal caseworker at Fair Trials International. FTI seeks to protect fair trial rights and defend the rights of people facing criminal charges in a country other than their own. Click here for FTI’s full briefing on Sir Scott Baker’s Extradition Review.
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“does a court from London question an arrest warrant by say a court of Liverpool?” – no it does not, unless a court in Norwich had already refused the warrant, in which case it is null and void. But an EAW is not invalidated if it is refused.
the difference is mainly one of philosophy on the EAW – does a court from London question an arrest warrant by say a court of Liverpool? It may come as a cultural shock, but e.g. Spanish courts are not particularly impressed by english lawyers coming up to say how things should be done and handled.
I feel – in my experience – a lot comes down to people going/coming/leaving from one country to another and ‘forgetting’ there were matters pending. I am at the moment handling various cases of Britons in spanish jails, and the same problem(s) come up again and again. Likewise, Spanish courts forget – in cases of ‘libertad provisional’ to understand there is something like Europe.
There should indeed be a system to warn people their presence is required in another court, and whilst e.g. the system exists for Spain (registering at the court your UK address and registering at the consulate) but most people just simply don’ t care. With often tragic consequences.
The point about executing judgements in the country of origin is a good one – as usual the legislation can be improved.