Part of the Criminalisation of Dissent under the “War against Terrorism”

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The European Arrest Warrant:
Part of the Criminalisation of Dissent under the “War against Terrorism”

The European arrest warrant from the perspective of a German defence attorney

Press Conference: Free Speech in Parliament Square

The idea of a European Arrest Warrant (EAW) system whereby a judge in one member state of the EU could directly enforce a warrant for arrest issued by a judicial authority in another member state has been under consideration as part of the European Union’s move towards an “area of freedom, security and justice”. The European Arrest Warrant, covering 32 crimes, comes into full force in 2004. It will enable a judge or prosecuting magistrate anywhere in the EU to order the automatic extradition of citizens from one EU country to another on the basis of suspicion alone, without having to present the dossier of evidence required under the current system. It does not contain a habeas corpus safeguard thereby giving the magistrates the right to act with impunity and giving rise to a system whereby suspects can be held for months or years in jail.

            The Labour government is in favour of the system, and the Labour MEPs were instructed to oppose an amendment which would have granted a “European habeas corpus”.

            According to Professor Dr Gert Vermeulen of the Institute for International Research on Criminal Policy of Ghent University in Belgium, speaking at the 4th “Eurojustice” Conference in 2001, fundamental rights relating to non-discrimination and right to asylum are being removed. The political offence exception is being abolished, and not only for terrorism (as in the 1996 EU extradition Convention). The “non-discrimination exception” is also formally abolished, and the European arrest warrant system infringes upon individual member states’ responsibilities under the Geneva Convention. Although the new EU warrant system proclaims “enhanced security”, this is at the expense of freedom and justice. Professor Vermeulen concluded that there is no apparent added value for combating terrorism under the new system compared to existing Justice and Home Affairs acquis (body of European legislation) and that essential safeguards against discriminatory prosecution and internal human rights infringements are being abolished.

            According to Susie Alegre, Legal Office for JUSTICE, writing in February 2002, in respect to UK law at least, while bail may be granted in extradition proceedings, there is no presumption in favour of bail for extradition cases as there is in purely domestic proceedings.   Depending upon the way that the British government chooses to implement the Framework Decision, the definition of the European arrest warrant could become a crucial deciding factor in the exercise of rights under Article 5 of the European Convention on Human Rights including the right to bail.

            She writes that three key Article 5 human rights are affected: the right to liberty, the right to a fair trial and the right to family life. It may be noted that the British government has itself derogated from Article 5 in UK law, having declared a “state of emergency”, in order that it may detain certain asylum seekers indefinitely.

            Susie Alegre writes that the EU arrest warrant gives rise to five principal areas of concern: dual criminality (the principle that in order for an extradition to take place the conduct alleged must constitute an offence both in the requesting and the requested state), the specialty principle (that a person shall be tried or punished, after extradition, only for the criminal conduct for which his surrender has been made, unless the requested state, after surrender, gives consent to further trial or punishment), conviction in absentia, surrender for interrogation and “court decision”.

            One indication of the dangers inherent in the EAW is the example of thirteen Italian youths who were arrested and imprisoned on charges under the Italian criminal code of "Subversive association", "Political conspiracy" and "Attack on the personality of the State" (in Italian, "Associazione sovversiva", "Cospirazione politica", "Attentato alla personalità dello Stato") in November last year. It is reported that the youth are members, some prominent, of the anti-globalisation movement, which held demonstrations in Genoa, Naples and Florence. A number of British youth were also present in Genoa. One, a journalist working for IndyMedia, had his ribs cracked and lung punctured by police during the events there. If the investigation is broadened, these youth could also be subject to EU arrest warrants and extradited to Italy to face a similar fate to the 13 Italian youth.

Wolfgang Kaleck**, defence attorney, Berlin
(from: http://www.statewatch.org/news/2003/jul/18wk.htm)

"It starts with false labelling: the European arrest warrant was a component of the big bluff package called "Antiterrorism-Roadmap", containing the anti-terrorism measures on European level in the aftermath of September 11th, 2001. True, the vague category of terrorism is one of the 32 criminal offences listed in the framework decision, where the European arrest warrant should replace the present extradition procedures. The majority of those 32 criminal offences range into the field of more or less serious everyday delinquency that usually has nothing to do with terrorism, regardless of its definition. According to the framework decision the European arrest warrant is supposed to represent "the first concrete measure [in the field of criminal law] implementing the principle of mutual recognition which the European Council referred to as the 'cornerstone' of judicial cooperation". Well, one is glad to hear that European prosecution und judicial authorities place so much confidence in each other, lending national decisions more and more mutual recognition.

            In view of the aforesaid false labelling however, the question arises how far can citizens, civil rights organisations and the European lawyers put their trust into the European arrest warrant. I'd like to divide my - due to the time - brief and rather general analysis into four steps:

1. A short explanatory note regarding the general development within the third pillar
2. Criticism of the framework decision on the European arrest warrant
3. Criticism of the German of implementation law of the European arrest warrant
4. Conclusions

1. Regarding the general development within the third pillar

First of all an adjustment: we are not talking here about the criminal law being Europeanised (that is not an intrinsic value anyhow), but about the national criminal law being executed Europe-wide. Europe constitutes itself increasingly as a unitary criminal geographic region. Currently this signifies an increasing trans-national/trans-border criminal prosecution in Europe from the perspective of the accused/defendants and defence attorneys, a permanent expansion of the authorities of prosecutors without an adjustment on the level of protection of fundamental rights and freedoms and procedural safeguards. The executive dominance within the policy of the "Third Pillar" seems to transform into the dominance of national and European law enforcement authorities within the trans-national criminal trials. As a result, the architecture of criminal prosecution as a fair trial and the equality of arms as a whole are threatened to be destroyed.

            From the perspective of a defence attorney, the reality of national criminal proceedings is anything but idyllic: increasing criminalisation in the substantive criminal law, more severe penalties, more authorities for the police and the dissolution of borders between police and secret service activities threaten to expand the predominance of the prosecutors. An essentially democratic public, organised defence attorneys as well as decade-long altercations between defence, judges and public prosecutors see to the defence attorneys getting at least a chance. At any rate, within the national states the daily fight for fair proceedings is taking place. On a European level however, actors, taking a stand for the fundamental principles of criminal proceedings and the rights of the accused and the defence, are scarce: a European democratic public does not exist, there are only a few lawyers' and civil rights organisation on a European level. Neither appears the defence as a constitutional and procedural principle in the drafts of the European commission and the European Council, nor are defenders being involved by the European institutions in regard to the imminent fundamental changes.

2. The framework decision on the European arrest warrant

The European arrest warrant fits into this development. The prerequisite of mutual criminality is discarded. Thus the cycle of penal offences on a European level has been substantially expanded. Decisions concerning social core issues like "What is punishable in a society? What is defined as an illegal behaviour and how will society react to that?" are exclusively made by the European executive without any public and democratic discussion. The German professor for criminal law, Bernd Schünemann, describes this as a blatant violation of the democratic principle. A citizen could be only punished then as a law-breaker, if he was prior allowed to participate in the generation of those norms, according to which he will be punished.

Practically this means that in the future the procedure of the Italian criminal justice against globalisation critics (Black bloc as criminal association) has to be accepted by German and French courts without the option to review this substantively. Dutch courts will have to execute the products of an irrational German drug policy. The Spanish procedure against so-called front-end organisation and supporters of the ETA in the media or economy will soon be enforceable Europe-wide. The political approval proceedings and the principle of speciality from the traditional extradition procedures are supposed to be completely abolished.

            The alleged simplification and acceleration of the proceedings will primarily have an impact on the procedural safeguards. The European framework decision offers, however, no regulation concerning constitutional minimum standards for the implementation of the very framework decision. The mutual trust in the decisions should base on a consensus about this minimum standard. This consensus doesn't exist and the decisions of European courts are not to be expected in this phase, thus this insecurity has to be shouldered by the defendants.

3. The German law of implementation for the European arrest warrant

            The German law of implementation has not yet been passed. Though time is running short, because the act is supposed to come into effect on January 1st, 2004, so far only a draft has been available from the Federal Ministry of Justice. Thus all annotations concerning this draft should be taken with a pinch of salt.

The bill allots a new chapter in the law on international legal assistance for criminal matters and therefore considers all of the general extradition principles as applicable to the extent to which the law of implementation contains no particular regulations. Essentially the political approval proceedings are sustained, merely in a simplified version. The extradition of Germans is permissible, however, subjected to the condition that the requested person may be returned to Germany in order to serve there the custodial sentence or other sanction passed against him in the issuing Member state.

Regarding the 'ne bis in idem' - principle: Grounds for mandatory non-execution are given not only, if the requested person has been finally judged by a Member state in respects of the same acts. What is more, the approval of the extradition shall be refused if the requested person is being prosecuted for the same act in Germany, or the initialisation of such a proceeding has been declined or an already initialised proceeding has halted.

            Currently scholars and defence attorneys are debating if the statutory abolition of the required dual criminality in the case of the 32 criminal offences listed in the framework decision is compatible with German constitutional and procedural law. To a certain extent the transformational law is being considered as unconstitutional in this aspect. The due process and general extradition principle originating from the ordre public serve to derive that, indeed, German courts possess a substantive right of inspection concerning cases where criminality according to German law is arguable.

Apart from that, the law of implementation contains no further provisions concerning for instance detention law and bail system and, above all, for the defence, legal aid and translation the draft refers to the general rules in German procedural laws. Especially the frequently debated minimum standards have not even been implemented rudimentally. This applies in particular for the right to multi-national defence-teams, the right to legal aid, the right to sufficient time and opportunity for the preparation of the defence as well as due process of the law, the right to access records and undisturbed communication and correspondence with the defence attorney.

4. Outlook/Perspective

These days German defence lawyers have adopted a so-called Frankfurt Appeal. It states among other thing: "The actors of the European criminal policy - the European commission, the European parliament, the European council - are emphasizing unilaterally the concept of security and selectively interested in protecting institutional interests." Security could only be guaranteed by protecting the human rights as well as the right to freedom, it maintains. The Appeal suggests positioning the consolidation of undisputable legal principles from the centuries-old European legal tradition into the emerging European legal order. In my opinion, the blatant modifications in the sensitive power parallelogram of criminal proceedings and the needs for a fair trial ought to be discussed previously within the debate on the implementation of the framework decision on the European arrest warrant. The generation of additional competences for the European law enforcement authorities ought to be accompanied by the simultaneous creation and projected development of civil rights protection and procedural law, in order to restore the constitutional equilibrium in general. Minimum standards could be first precise demands at this. It is our task as civil rights and lawyers organizations to begin this discussion on national and European level. We shouldn't wait too long."

* This speech was prepared for a conference of the organisation JUSTICE on July 5-6 in London: "Eurowarrant. European Extradition in the 21st century"
**Wolfgang Kaleck is President of the Republikanischer Anwaltinnen-und Anwalteverein e.V. website: www.rav.de

A powerful and very lively press conference in the House of Commons on June 17 defended protesters’ right to be seen and heard in Parliament Square.

            Many who packed the room have supported Brian Haw's two-year, 24-hour protest against the genocide of Iraqi children, or have come for the open microphone at the community anti-war picket organised by the Global Women's Strike (GWS).  The protests are now under threat through legislation, and from roving anti-protest police units. At the same time, Brian Haw, who has won a precedent ruling based on the right to freedom of speech under the Human Rights Act, told the meeting he had been violently attacked in the night by an off-duty US marine.   His nose was broken while police stood by "defending Parliament".  (This is being pursued.)

            Chairing the meeting, John McDonnell MP welcomed the protests for "bringing attention to issues that in this place often get forgotten", and Selma James from the GSW said that people who do not feel represented by Parliament were finding a way to be politically active, beginning with women who, as the carers of society, are "even more anti-war than men".  And "if the speeches at the picket are bothering MPs, that's what it's there to do".  One by one speakers made clear how important it was for them to be heard – as asylum seekers, women with disabilities, pensioners, a churchwoman, a Jewish anti-Zionist man, Greenham women who had used the courts against the military, a woman protester from the coaches hijacked by the police on the way to Fairford US airbase.   Nawal Karem from the Iraqi Women's League said the picket's support and exchange of information had made it a vital "home" for them.  Explo Nani-Kofi from the African Liberation Support Campaign said the attempts to silence the picket were a measure of its achievement: the message was getting into Parliament – in fact more than they wanted to hear! Black people, who were not represented anywhere in any "house of representatives", had found a way to represent themselves.   Tony Benn said how much influence the protests had, and pointed out, "It's not just the picket that the government doesn't like.  The government doesn't like Parliament."  The event was proof of a vibrant and increasingly united movement – facing up to alarming times.

            The GWS picket is continuing two days a week, Wednesdays and Thursdays, from 5.30-7pm. The Strike recently held a workshop "Defending the right to dissent and protest", discussing how to defend and extend the picket.