28 March 2012
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The European arrest warrant from the perspective of a German defence attorney*
Wolfgang Kaleck, defence attorney, Berlin
"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
1. Regarding the general development within the third pillar
First of all an adjustment: we are not talking here about the criminal law being europeanized (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 criminalization 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 Januaryl 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 bailsystem 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.
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 the JUSTICE conference 5-6 July in London: "Eurowarrant. European Extradition in the 21st century"
**Wolfgang Kalek is President of the Republikanischer Anwaltinnen-und Anwalteverein e.V. website: www.rav.de
Documentation and coverage
Text of Framework Decision on the European arrest warrant: Full-text (pdf) plus COR 1 (pdf)
Statewatch analysis and critique: Analysis (pdf)
UK: Parliament scrutiny committee savages EU arrest warrant proposals: Report
Irish government not consulted on European arrest warrant proposal: Report
EU decisions on terrorism and European arrest warrant: strong parliamentary objections in Sweden: Report
Text of European arrest warrant: Report
European Parliament supports EU definition of terrorism and European arrest warrant: Report
European Parliament allows more time for debating the European arrest warrant - vote postponed: Report
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