If the EAW is news to many if have to really question what the fuck do people do about the world they live in.
If the video is saying that no evidence is required, it merely supports my view that Ukip talk utter utter shite and is why i switch off when one of the muppets begins yapping.
As someone who would be regarded as left as left can get, mind on here that would put me centre right on the political spectrum, the Euro one sits ok with me, the one the UK and US has does not.
The Euro one has plenty of safeguards in place. including double criminality.
Double criminality is a feature of international extradition law by which states may refuse to extradite fugitives if the conduct which is alleged to have constituted a criminal offence in the state requesting extradition would not have resulted in the commission of a criminal offence in the state being asked to effect the extradition.
Under the EAW Framework Decision, the requirement for double criminality is removed for a wide range of categories of crimes, and made a discretionary rather than a compulsory ground for a refusal to extradite for offences not falling within those categories.
The categories within which are as follows:
Arson,
Computer-related crime,
Corruption,
Counterfeiting currency,
Counterfeiting and piracy of products,
Crimes within the jurisdiction of the International Criminal Court,
Environmental crime, including illicit trafficking in endangered animal species and in endangered plant species and varieties,
Facilitation of unauthorised entry and residence,
Forgery of means of payment,
Forgery of administrative documents and trafficking therein,
Fraud, including fraud affecting the financial interests of the European Union,
Illicit trade in human organs and tissue,
Illicit trafficking in cultural goods, including antiques and works of art,
Illicit trafficking in hormonal substances and other growth promoters,
Illicit trafficking in narcotic drugs and psychotropic substances,
Illicit trafficking in nuclear or radioactive materials,
Illicit trafficking in weapons, munitions and explosives,
Kidnapping, illegal restraint and hostage-taking,
Laundering of the proceeds of crime,
Murder, grievous bodily injury,
Organised or armed robbery,
Participation in a criminal organisation,
Racism and xenophobia,
Rape,
Racketeering and extortion,
Sabotage
Sexual exploitation of children and child pornography,
Swindling,
Terrorism,
Trafficking in human beings,
Trafficking in stolen vehicles,
Unlawful seizure of aircraft or ships.
Prior to the adoption of the EAW Framework Decision in 2002, 11 of the then 15 member states — namely Austria, Belgium, Denmark, Finland, France, Germany, Greece, Luxembourg, Portugal and Sweden — had domestic rules which prevented the extradition of their nationals. Which i assume you will be happy about as it now means if a Belgian nips over here and rapes someone, they can be sent back over here, something which could not be done before.
Also,there are plenty of grounds for the refusal to exercise the warrant.
The EAW Framework Decision sets out the reasons by which the executing judicial authority must or may refuse to surrender a person subject to an arrest warrant. Many member states have enacted other reasons by which surrender may be refused which are not referred to in the Framework Decision.
Mandatory grounds under the Framework Decision
Under the Framework Decision the executing judicial authority
must refuse to surrender the requested person if:
- The alleged offence comes under the jurisdiction of the courts of the executing state and is the subject of an amnesty there,
- The requested person has been acquitted in a member state of the European Union of an offence in respect of the same acts as contained in the arrest warrant, or was convicted of that offence and has served the sentence imposed (if any) for that offence, or
- The requested person is below the age of criminal responsibility in the executing state.
Optional grounds under the Framework Decision
Under the Framework Decision the executing judicial authority
may refuse to surrender the requested person if:
- The requested person is being prosecuted in the executing member state for the same act,
- The prosecutorial authorities in the executing state decided not to prosecute the requested person, or having begun such a prosecution halted it,
- The requested person was being prosecuted in the executing member state, that case having progressed to final judgement,
- The act on which the EAW is based comes under the jurisdiction of the executing member state and would be statute barred there,
- The requested person was prosecuted in a third country, the final judgement having been made, provided that the sentence in respect of the offence (if one was imposed) had been served or may no longer be executed under the laws of the third country,
- The offence was committed or alleged to have been committed in the territory of the executing state, or
- The offence was committed or alleged to have been committed other than in the territory of the issuing state and the law executing state would not allow for the prosecution of the same offence if committed outside its territory.
Trials in absentia
In 2009 the Council of Ministers amended the EAW framework decision with the express intention of "enhancing the procedural rights of persons and fostering the application of the principle of mutual recognition to decisions rendered in the absence of the person concerned at the trial". Under the 2009 framework decision an executing judicial authority may refuse to execute a European Arrest Warrant unless the requested person:
- Was summoned in person and knowing the time and place of the trial in due time and that judgement might be made against him or her if he or she failed to attend, failed to attend,
- Was not summoned in person but it being unequivocally established that he or she was aware of the time and place of the trial in due time and that judgement might be made against him or her if he or she failed to attend, failed to attend,
- Knowing that a trial was scheduled, had instructed lawyers to defend the case, who duly did so,
- Was served with the judgement and told of his or her right to a retrial or appeal de novo, decided not to contest the judgement or failed to request such a retrial or appeal within the applicable time limit, or
- May request a retrial or make a de novo appeal upon his or her surrender.
The 2009 Framework Decision should have been implemented by member states by 28 March 2011.
Human rights
Article 3 of the Framework Decision which lists grounds upon which executing states must refuse to surrender a requested person does not expressly include any ground for refusing the surrender of a requested person if that surrender would infringe a person's human rights. However recitals (12) and (13) of the preamble and Article 1(3) do refer to human rights:
Recital (12)
"This Framework Decision respects fundamental rights and observes the principles recognised by Article 6 of the Treaty on European Union and reflected in the Charter of Fundamental Rights of the European Union, in particular Chapter VI thereof. Nothing in this Framework Decision may be interpreted as prohibiting refusal to surrender a person for whom a European arrest warrant has been issued when there are reasons to believe, on the basis of objective elements, that the said arrest warrant has been issued for the purpose of prosecuting or punishing a person on the grounds of his or her sex, race, religion, ethnic origin, nationality, language, political opinions or sexual orientation, or that that person's position may be prejudiced for any of these reasons.
This Framework Decision does not prevent a Member State from applying its constitutional rules relating to due process, freedom of association, freedom of the press and freedom of expression in other media."
Recital (13)
"No person should be removed, expelled or extradited to a State where there is a serious risk that he or she would be subjected to the death penalty, torture or other inhuman or degrading treatment or punishment."
Article 1(3)
"This Framework Decision shall not have the effect of modifying the obligation to respect fundamental rights and fundamental legal principles as enshrined in Article 6 of the Treaty on European Union."
In 2006, 20 of the then 25 member states included text which was based on at least one of these provisions or which explicitly referred to the
European Convention on Human Rights, in their domestic implementing legislation. The others took the view that the rights exist independently from the Framework Decision.
Conditional surrender
The Framework Decision also establishes the possibility for executing member states to request certain guarantees from issuing states prior to ordering the surrender of a requested person. Whether and how member states require such guarantees depends on the law of the member state in question.
- Where a requested person is liable on conviction to life imprisonment, the executing state may make the surrender subject to the requested person having the legal right to apply for parole after having served twenty years.
- Where a requested person is a national or a resident of the executing state, the executing state may make the surrender subject to the requested person being returned to the executing state to serve any prison sentence ultimately imposed.
Then there is
Procedure
Issuing judicial authority
A European Arrest Warrant may only be issued by the competent judicial authority in an EU member state or a state with a special agreement with the EU. The issuing judicial authority must complete a form stating identity and nationality of the person sought, the nature and legal classification of the offence, the circumstances surrounding the alleged committal of the offence including when and where it was committed and the degree of participation of the person sought, and scale of penalties for the offence.
Many member states have designated public prosecutors as their judicial authorities for the purposes of the framework decision. Such designations have been questioned before the British and Irish courts on the basis that in order for an authority to be judicial it should be a court or judge. In both states the designated issuing authority is a judge. However the courts of each have rejected these arguments. In
Assange v Swedish Prosecution Authority the English High Court found that:
"it cannot be said that the term judicial applies only to a judge who adjudicates. The differing European traditions recognise that others, including prosecutors, can be included within that term for various purposes. It is therefore entirely consistent with the principles of mutual recognition and mutual confidence to recognise as valid an EAW issued by a prosecuting authority designated under Article 6. To do otherwise would be to construe the word 'judicial' out of context and look at it simply through the eyes of a common law judge, who would not consider a prosecutor as having a judicial position or acting as a judicial authority."
On appeal, the Supreme affirmed the decision of the High Court and found that, when comparing different language versions, the framework decision demonstrated an intention to regard public prosecutors as judicial authorities and that the conduct of the member states since its enactment confirmed this interpretation.
Transmission
Unlike traditional extradition arrangements, EAWs need not be transmitted to any particular state. The intent of the Framework Decision is that EAWs be immediately recognised by all member states once issued. When a person the subject of an EAW is found within the jurisdiction of a member state and arrested, that member state is required by the Framework Decision to execute the warrant.
If the whereabouts of the person sought are known, the EAW may be transmitted directly to the designated central authority of that member state. Otherwise the issuing judicial authority may seek the assistance of the
European Judicial Network in circulating the warrant, may seek to issue an alert under the
Schengen Information System, or may seek the services of
Interpol.
Minimum threshold
The EAW Framework Decision requires that a warrant can only be issued when an offence is punishable by imprisonment or a detention order for a maximum period of at least one year, or in conviction cases, where the remaining term of imprisonment is four months or more. This can nonetheless include a wide variety of trivial offences. In 2007, a report commissioned by the Presidency of the Council of Ministers noted that EAWs had been issued for such offences as possession of 0.45 grams of cannabis, possession of 3 ecstasy tablets, theft of two car tyres, driving under the influence of alcohol where the limit was not significantly exceeded and theft of a piglet. The report concluded that it would be appropriate to have a discussion at EU level on the proportionate issuance of European Arrest Warrants.
Arrest
While the manner in which the arrest of a person the subject of an EAW is not specified in the Framework Decision, once arrested, he or she has the right to be informed of the warrant, its contents, and the person's right to consent to his or her surrender to the member state that issued the warrant. The Framework Decision also provides that the requested person have the right to the assistance of legal counsel and to an interpreter "in accordance with the national law of the executing Member State.
Time limits
The Framework Decision prescribes time limits for the making of a final decision to a surrender request. Where a requested person consents to his or her surrender, the executing judicial authority should make a final decision within ten days of such a consent. Where a requested person refuses to consent to his or her surrender, the executing judicial authority should make a final decision within 60 days of the arrest. In 2011 the European Commission reported that the average time for the surrender of persons who consented was 16 days while the average time for those who did not consent was 48.6 days
Is it perfect? Probably not as shown below, but then again the exceptions are probably what Ukip are using, to try and illustrate as examples of the status quo, to back up their babbling.
To give balance
Fair Trials International (FTI), the London-based human rights non-governmental organisation, claims to have highlighted a number of cases which demonstrate that the European Arrest Warrant system is causing serious injustice and jeopardising the right to a fair trial. In particular, FTI allege that:
- European Arrest Warrants have been issued many years after the alleged offence was committed.
- Once warrants have been issued there is no effective way of removing them, even after extradition has been refused.
- They have been used to send people to another EU member state to serve a prison sentence resulting from an unfair trial.
- Warrants have been used to force a person to face trial when the charges are based on evidence obtained by police brutality.
- Sometimes people surrendered under an Arrest Warrant have to spend months or even years in detention before they can appear in court to establish their innocence.
