EU-USA agreements - the drafts on the table

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In August last year Statewatch published a leaked first draft of the proposed agreement between the EU and the USA on judicial cooperation (see: Secret EU-US agreement being negotiated). This has now become two separate agreements, one on extradition, the other on "mutual legal assistance" (joint EU-US investigation teams, surveillance and the exchange of information on suspected persons).

Here we examine the latest drafts (23.2.03), which were put before the EU Justice and Home Affairs Council on 28 February. The Ministers decided to suspend negotiations with the USA in order to allow national parliaments to be consulted (at least those in France, UK and Germany). The European Parliament has not been consulted. The suspension is because of the US demand to be treated as a member of the European Union when it comes to extradition (that is, under the European arrest warrant which removes formal legal appeals).

Tony Bunyan, Statewatch editor, comments:

"These draft agreements between the EU and USA have far reaching implications for both criminal justice and democratic standards in the EU. The secrecy surrounding the negotiations and exclusion of parliaments is unacceptable in a democracy. Statewatch is publishing these texts with the aim of fostering much needed public debate.

Where extradition is concerned, it is almost unthinkable that the USA should be demanding the extradition of someone from EU without having to provide evidence demonstrating the case to answer.

In the case of the proposed mutual legal assistance treaty, there are no limits on surveillance, the exchange of intercepted telecommunications data or undercover joint EU-US investigative teams. Nor are there meaningful limits on the use of evidence in relation to potential death penalty charges or "special courts" like those proposed for the Guantanamo detainees.

If these draft agreements had been subject to meaningful parliamentary scrutiny and public debate, it is hard to believe that proposals so devoid of protections for suspects and defendants would have resulted."

1. Draft Agreements between the European Union and the United States of America on extradition and mutual legal assistance: Full text (pdf)

2. See also three associated stories released by Statewatch today (9.10.03): UK parliament Committee refuses to scrutinise agreements in secret, UK agrees new treaty with USA on extradition, UK and USA prepare for "simultaneous attacks"


Latest developments

Negotiations on the two far-reaching EU-US agreements on extradition and mutual legal assistance have been "suspended" because of a major sticking point emerged on the issue of extradition.

In the EU the Framework Decision on the European arrest warrant, adopted on 13 June 2002, is due to come into operation in January 2004. This will mean that legal appeal proceedings in the requested state where evidence is supplied and can be challenged, will no longer be necessary. Where now there may be a number of hearings in future there will be one - simply a process (a "hearing") to check that the forms have been correctly completed and that very narrow grounds for refusal are considered.

With the negotiations well advanced, the US side demanded that they should have the same rights as EU member states under the European arrest warrant - extradition on demand with no appeal against the information provided by the requesting state. This was a demand too far for some EU governments as the USA is not subject to EU law, the European Convention on Human Rights, nor EU data protection laws. Moreover, there have been a number of cases where the USA, post 11 September, has demanded the extradition of suspect

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