European Arrest Warrant needs proportionality

Catherine Heard, Head of Policy at Fair Trials International

PUBLIC SERVICE EUROPE - CATHERINE HEARD

Extraditing people for going over their overdraft limit is just not acceptable, writes Catherine Heard of Fair Trials International.

The European Union is slowly waking up to the human rights implications of its seven-year-old Arrest Warrant system. Fair Trials International is a charity that works to uphold the fundamental rights of people facing criminal charges in a country other than their own. Our caseworkers have seen a big increase in European extradition cases since the system was introduced in 2004.

This gives us a unique insight into the human costs of this fast-track "no questions asked" extradition system, which operates in a region of highly diverse legal systems and vastly differing standards of justice. Half of the approximately 500 requests for assistance our charity gets every year come from people arrested in an EU country. In increasing numbers, they are arrested under European Arrest Warrants.

They find it virtually impossible to challenge their extradition to another EU country. Even where clear human rights concerns exist and in the most trivial of cases, extradition is routinely ordered. Our cases also reveal that basic defence rights are not being respected and that prison conditions are inhumane in several countries. They also show the importance of early legal representation in countries, if justice is to be served effectively and efficiently.

The EU Commissioner for Justice, Fundamental Rights and Citizenship Viviane Reding has rightly acknowledged that the warrant is being misused for low-level crimes, highlighting the fundamental rights implications. In a recent report, the commission urged European states to use warrants for what they were intended to do - to prosecute and punish "major crimes".

Herein lies the problem, though. The EU law that introduced the system does not say warrants must only be used for major crimes. It does not require countries to apply "proportionality checks" before issuing them. Nor does it allow countries receiving extradition requests to refuse them on proportionality grounds. So countries receiving trivial requests have no choice but to extradite. Extradition has a devastating impact on individuals and their families, yet this "tick-box" system leaves judges almost no discretion to refuse.

Some countries, like Germany and the UK, get many more warrants than they issue. It is from these countries that the pressure for a proportionality test may be greatest. Germany received a staggering 13,400 in 2009, but issued just 2,400. The UK issued under 6 per cent of the number of warrants it received. Both countries receive vast numbers of requests from Poland, which has no prosecutorial discretion and must pursue every indicted person, no matter how minor the crime.

We recently handled the case of a retired schoolteacher and grandfather whose extradition to Poland was sought. What was the alleged crime? Going over his overdraft limit more than 10 years ago. This was despite the entire debt having been repaid when the bank repossessed his house. Nonetheless, he was still wanted to face trial for "theft".

In another case, a young man's future was blighted by a criminal record, following his extradition over two fake €50 notes found in a hotel room he rented with friends on holiday in Spain. After 10 weeks in a maximum security jail in Madrid, he decided to plead guilty to avoid further months or years on remand awaiting trial - when he was desperate to return to university.

The warrant is seen as a powerful symbol of mutual trust between EU countries, a flagship instrument forged in the wake of 9/11- in a spirit of stronger judicial co-operation across European borders. In a union of 27 countries, all with distinct legal and penal cultures - it is not easy to build the trust necessary for this degree of mutual co-operation.

Building a proportionality test into the system would mean amending the framework legislation – a change that all 27 EU countries would have to implement domestically. There is reluctance, at least at a commission and Council level, to rush into this. But there is growing recognition that it may be the only answer.

The European Parliament, for its part, has greater legislative influence on justice measures now than when this extradition system was negotiated. Next month, it debates in a plenary session the need for stronger safeguards. This initiative, from the Greens, is supported by MEPs from a wide and influential political base encompassing the European People's Party, the Alliance of Liberals and Democrats for Europe and the Socialists and Democrats group.

The questions tabled for debate concern issues we have long been highlighting - warrants issued for questioning only, warrants for minor offences, countries not respecting other states' decisions to refuse extradition - leading to people being arrested again and again – and inadequate legal representation as well as poor prison conditions.

Pressure from the parliament could lead the commission and council to rethink their approach on proportionality and other key protections. Time is running out and confidence in the system will steadily erode if cases of misuse and injustice continue at their current rate. Vice-President Reding has taken an important stand by calling for restraint in the use of warrants. But, if the commission's new guidance does not stop the misuse of this powerful tool, the case for binding legislative reform will be hard to resist.