A bridge too far? EU suspends negotiations with USA on agreement

EU-USA agreements - the drafts on the table

- two agreements on extradition and mutual legal assistance being negotiated in secret (full-text below)
- extradition to USA to apply to any suspected offences bringing just a one year sentence
- USA successfully opposed any reference to the International Criminal Court or to Special Courts (Military Tribunals)
- data protection sidelined again: "A broad, categorical, or systematic application of data protection principles to refuse cooperation is.. precluded"
- FBI and other US agencies to operate in EU in joint investigation teams with full powers of search, surveillance and arrest


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 suspects or the provision of evidence which have been rejected by EU member states' courts for failing to meet the legal standards of existing extradition rules.

The JHA Council on 28 February decided that: "For the time being, the negotiation of the Agreement should be suspended"

The "spin" coming out of the meeting was that "some delegations have expressed concerns on specific points" and "the Council could conclude the Agreement in May or June, after having involved the parliaments in an appropriate manner" and "the agreement contains extensive provisions in relation to data protection":

- top of the "specific points" is the US demand to be considered as an EU member state on extradition, may also extend to the search and seizure of property as well.

- national parliaments and the European parliament do not have to be consulted on agreements concluded under Articles 24 and 38 TEU (the legal basis for current negotiations).

- the provisions on data protection are not "extensive" (they are as vague and unenforceable as those on the exchange of personal details of airline passengers, see: US Customs to have direct access to EU airline reservations databases)

The Greek Presidency is hoping to get agreement on the texts at the EU Justice and Home Affairs Council on 8 May, or if this is not possible the following meeting on 5-6 June. The signing of the agreements is planned to take place at the EU-US summit on 25 June.

Analysis of the EU-USA agreement on extradition

The scope of the draft agreement between the EU and the USA on extradition introduces a sentence threshold not a list of offences.

(Article 4) The agreement will apply to any suspected offence which carries a prison sentence of one year or more - an exceptionally low standard for the arrest and deportation of a suspect to another continent. This extends to an attempted offence, conspiracy or participation and to "any other offence specified in the request" if this is also punishable by a one year sentence - thus an extradition request could contain a "shopping list" of suspected offences meeting a very low threshold.

(Article 5) Requests for extradition will be through "diplomatic" channels but requests for "provisional arrest" can be made between Ministries of Justice (Article 6) whereby a person is arrested and held for a "hearing" before being extradited.

(Article 9) People already charged with an offence and whose case is before a court in the EU or who are in prison in the EU can be extradited for trial in the USA (Article 9: "Temporary surrender").

It is the draft (Article 10) on requests for extradition which led to the suspension of negotiations. This contains the simple statement that requests for extradition received by one EU member state from another member state falls under the European arrest warrant which not only means that extradition is virtually automatic (without legal processes examining the justifiability of the grounds for removal), it also allows for requests for search and seizure of evidence from the property of the suspected person. The US side asked to be treated the same way as an EU member state, the EU side said that this was almost impossible, the US side insisted, so the negotiations have been put on hold. The Article makes no mention of Special Courts (Military Tribunals).

(Article 11) If a person consents to extradition ("simplified extradition") then they can be handed over "without further proceedings".

(Article 12) Both the USA and the EU agree to "suspects in transit", that is, a suspect can come through either state on their way to a third state. This covers also people coming from third states.

(Article 13) On the sensitive issue of capital punishment the draft agreement was that extradition can be granted on "condition that the death penalty shall not be imposed on the person sought" or if this condition cannot be met on "condition that the death penalty if imposed shall not be carried out". If the requesting state (ie: the USA) does not accept these conditions: "the request for extradition may be denied" (emphasis added) - which is hardly cast-iron compliance with the ECHR. Moreover, the issue of the supplying of evidence to the USA by EU member states in cases where the death penalty may result is not addressed.

(Article 16) The agreement will "apply to offences committed before as well as after it enters into force". It will thus be retrospective without any time limit.

Analysis of the agreement on mutual legal assistance

The draft EU-US agreement on mutual legal assistance covers a range of areas of cooperation from the exchange of banking information to joint investigation teams. Its scope is very broad and general thus, for example, "mutual assistance shall be afforded to national administrative authorities investigating" matters for a criminal prosecution. (Article 8) could include requests for surveillance or the interception of communications (in conjunction with Article 5).

This agreement will apply to all EU member states even those which do not have bilateral agreements with the USA or who do not have agreements on the provisions of this agreement.

(Article 3) says the agreement will apply to all EU Member States (including those who join).

(Article 4) will allow the USA to request banking information and effectively "extends the provisions of the Protocol to the EU Mutual Legal Assistance Convention of 2000 to the USA" (Home Office letter)

They can ask an EU state to:

"ascertain if the banks located in its territory possess information on whether an identified natural or legal person suspected of or charged with a criminal offence is the holder of a bank account or accounts"

Request are to be made between "central authorities" in the EU Member States and "national authorities in the United States" - potentially through "Financial Intelligence Units".

Requests for banking information can apply to any alleged crime. On an ad hoc basis a state can limit the provision of information to offences "under the laws of both the requested and requesting states" and/or to "offences carrying a minimum of a four year sentence". However, these limitations do not apply to accounts "associated with terrorist activity" nor where there are a series of "serious criminal activities" punishable under the law of both states.

(Article 5) Article 5 covers the setting up of EU-US joint investigative teams and says:

"The Contracting Parties shall, to the extent that they have already not done so, take such measures as may be necessary to enable joint investigative teams to be established and operated in the respective territories of the United States and each [EU] Member State, for the purpose of facilitating criminal investigations or prosecutions involving the United States and one or more Member States.

The procedures under which the team is to operate, such as its composition, duration, location, organisation, functions, purpose and the participation of team members of a State in investigative activities taking place in another State's territory shall be as agreed between the competent authorities concerned.

The competent authorities concerned shall communicate directly for the purposes of the establishment and operation of such teams except that where the exceptional complexity, broad scope, or other circumstances involved are deemed to require more central coordination as to some or all aspects, the States may agree upon other appropriate channels of communication to that end.

Where the joint investigative team needs investigative measures to be taken in one of the States setting up the team, a member of the team of the State may request its own competent authorities to take those measures without the other States have to submit a request for mutual legal assistance. The required legal standard for obtaining the measure in that State shall be the standard applicable to its domestic investigative activities."

Commentary: joint investigative teams

1. The draft article on joint investigative teams says that the contracting parties shall take measures to establish them:

"to the extent they have already not done so"

which suggests that a number of joint investigative teams have already been set up and are operational.

2. Joint investigation teams will be self-regulating, their composition, functions and purpose will not be laid down and subject to any democratic scrutiny. There is no mention of legal liability or judicial review for actions taken by US agents nor members of these teams drawn from EU member states.

3. EU law enforcement officers in the joint teams from the state where the operation is being conducted will be allowed to circumvent formal requests for mutual assistance by directly requesting surveillance by other national agencies, the interception of telecommunications, search warrants, arrest and detention. No mechanisms for accountability are set out.

4. As the composition of the teams is left entirely to officials in the EU and the USA - and their scope extends beyond crime to include terrorism and internal security - they could be comprised of police, customs, immigration and drugs agents plus internal security agencies (like MI5, the FBI and CIA) - and the could operate as free-ranging anti-terrorist or anti-protestor squads.

Under Article 7 requests for "mutual legal assistance", for example, telecommunications surveillance or search of home or office can be made by fax or e-mail. This is only to require "formal confirmation" when "required by the requested state" - so the norm is likely not to require formal confirmation.

Article 8 extends the concept of mutual assistance beyond that of the law enforcement agencies to "administrative" or "regulatory" authorities.

Article 9 covers the so-called "extensive" data protection clause. In total it reads as follows:

Article 9: Limitations on the use to protect personal and other data (see footnote A:)

1. The requesting State may use any evidence or information obtained from the
requested State:

(a) for the purpose of its criminal investigations and proceedings;
(b) for preventing an immediate and serious threat to its public security;
(c) in its non-criminal judicial or administrative proceedings directly related to investigations or proceedings:
i. set forth in subparagraph (a)
ii. for which mutual legal assistance was rendered under Article 8;
(d) for any other purpose, if the information or evidence has been made public within the framework of proceedings for which they were transmitted, or in any of the situations described in subparagraphs (a), (b) and (c); and
(e) for any other purpose, only with the prior consent of the requested State.

[There follows two critical options of Article 9.2]

2. a. This Article shall not prejudice the ability of the requested State to impose additional conditions in a particular case where the particular request for assistance could not be complied with in the absence of such conditions. Where additional conditions have been imposed in accordance with this paragraph, the requested State may require the requesting State to give information on the use made of the evidence or information.

b. Generic restrictions with respect to the legal standards of the requesting State for processing personal data may not be imposed by the requested State as a condition under subparagraph (a) to providing evidence or information.

3. Where, following disclosure to the requesting State, the requested State becomes aware of circumstances that may cause it to seek an additional condition in a particular case, the requested State may consult with the requesting State to determine the extent to which the evidence and information can be protected.

4. A requested State may apply the use limitation provision of the applicable bilateral mutual legal assistance treaty in lieu of the present article, where doing so will result in less restriction on the use of information and evidence than provided for in this article.

5. Where a bilateral mutual legal assistance treaty in force between the United States of America and a Member State on the date of signature of this Agreement, permits limitation of the obligation to provide assistance with respect to certain tax offences, the Member State concerned may indicate, in its exchange of written instruments with the United States described in Article 3, paragraph 2, that, with respect to such offences, it will continue to apply the use limitation provision of that treaty. [Footnote to Article 9.5: This paragraph is intended to apply solely to Luxembourg].

Footnote A: The Contracting Parties will exchange diplomatic notes to explain that subparagraph 2b should be construed in the sense of paragraph 269 of the Cybercrime Convention Explanatory Report. Paragrpah 269 in the Cybercrime Convention Explanatory Report says:

"269. In line with this approach, it was understood that apart from those grounds set out in Article 28, refusal of assistance on data protection grounds may be invoked only in exceptional cases. Such a situation could arise if, upon balancing the important interests involved in the particular case (on the one hand, public interests, including the sound administration of justice and, on the other hand, privacy interests), furnishing the specific data sought by the requesting Party would raise difficulties so fundamental as to be considered by the requested Party to fall within the essential interests ground of refusal. A broad, categorical, or systematic application of data protection principles to refuse cooperation is therefore precluded. Thus, the fact the Parties concerned have different systems of protecting the privacy of data (such as that the requesting Party does not have the equivalent of a specialised data protection authority) or have different means of protecting personal data (such as that the requesting Party uses means other than the process of deletion to protect the privacy or the accuracy of the personal data received by law enforcement authorities), do not as such constitute grounds for refusal. Before invoking "essential interests" as a basis for refusing co-operation, the requested Party should instead attempt to place conditions which would allow the transfer of the data. (see Article 27, paragraph 6 and paragraph 271 of this report)."

Commentary: data protection

1. The data protection provisions, such as they are, in paragraph 2 offer two alternatives: the first allows requested states to impose restrictions on the use of information and require information on the use made of the information supplied, the second, allows for no such restrictions (in this instance, the fact that the USA does not have a data protection law cannot be used as an excuse for not supplying information).

2. The scope of information to be exchanged is extensive, for the purpose of any criminal investigation, threats to public security, "non-criminal judicial or administrative proceedings", for "any other purpose" if it covers the former categories, and for "any other purpose" with the prior consent of the requested state.

3. Where a bilateral agreement with the USA would allow "less restriction on the use of information and evidence" then it may be used.

4. No rights of access to data held or rights of correction and deletion are included. Rights expressly guaranteed by the EU Charter on Fundamental Rights and the EU Data Protection Directive.

5. No conditions on who can have access to the information supplied by EU states to the USA are included.

6. No conditions are set out to prohibit "added value" or "intelligence" or unfounded suspicions being added are set out.

7. No conditions are set out prohibiting passing information to third parties.

In short,there are no effective data protection provisions worth speaking of and nothing to ensure that the considerable body of EU data protection legislation is respected.

Article 10 says that a request and its contents should be kept confidential which impacts on data protection above and also makes it impossible to have any independent scrutiny of the implementation of the agreement.

Article 12 says that the scope of the agreement:

"shall apply to offences committed before as well as after it enters into force"

In short it is retrospective without time limit - unlike, for example, the International Criminal Court.

Additional commentary based on letter from UK Home Office to UK parliament

The letter from the UK Home Office to the Select Committee on the European Union in parliament is illuminating on a number of aspects of the UK government view on the one hand and what happened in the negotiations. The government's view is that they did not want the agreements to: "give rise to excessive interference in UK/US relations", for example, that the European Court of Justice would have no jurisdiction but had hoped the scope would be wider, for example, to cover the "extradition of own nationals".

The Greek Presidency is of the view that: "further negotiation would be unlikely to produce any more changes to the text, and might endanger the whole agreement". In particular the USA is "anxious" to:

"avoid specific references to the International Criminal Court or the Special Courts (Military Tribunals) which could be used to try some terrorism cases"

In the UK the government intends to "designate" US agencies to have the same rights as EU agencies - covering, for example, "foreign surveillance operations" - under the Crime (International Cooperation) Bill currently going through parliament. US agencies will be similarly "designated" to operate in joint investigative teams under Section 88 of the 1986 Police Act.

Background documentation

1. Draft agreements between the EU and the USA on extradition and mutual legal assistance: Full-text (pdf)

2. The European arrest warrant form - a series of boxes have to be ticked and very basic information included. The requested state is dependent on the accuracy of the minimal information provided by the requesting state (which can also request "search and seizure" of property): Text of the European arrest warrant (pdf)

2. First draft of the proposed agreement between the EU and the USA on judicial cooperation (see: Secret EU-US agreement being negotiated).

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


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