Proposal on a COUNCIL COMMON POSITION on notifying the Council of Europe, pursuant to Article 28(3) of the European Convention on Extradition of 13 December 1957, of the application by the Member States, as between themselves, of the European arrest warrant

(presented by the Commission)

EXPLANATORY MEMORANDUM

1. Council of Europe instruments

All the Member States are parties to the European Convention on Extradition concluded under the aegis of the Council of Europe on 13 December 1957.

This multilateral convention is the main European extradition instrument. It was followed by an additional protocol on 15 October 1975 listing the offences which are not deemed political (Article 1) and setting out the ne bis in idem rules (Article 2) and a second additional protocol on 17 March 1978 extending extradition to include fiscal offences (Article 1) and limiting the scope for refusing to extradite where judgments are rendered in absentia.

The European Convention on the Suppression of Terrorism, signed in Strasbourg on 27 January 1977, also amends the Convention of 13 December 1957 by laying down a new list of offences which cannot be regarded as political offences for extradition purposes.

The Convention is amended by a protocol extending that list which will be opened for signing on 15 May 2003. All the Member States have declared their willingness to sign and ratify the protocol.

Article 28(3) of the 1957 European Convention on Extradition states:

"Where, as between two or more Contracting Parties, extradition takes place on the basis of a uniform law, the Parties shall be free to regulate their mutual relations in respect of extradition exclusively in accordance with such a system notwithstanding the provisions of this Convention.The same principle shall apply as between two or more Contracting Parties each of which has in force a law providing for the execution in its territory of warrants of arrest issued in the territory of the other Party or Parties. Contracting Parties which exclude or may in the future exclude the application of this Convention as between themselves in accordance with this paragraph shall notify the Secretary General of the Council of Europe accordingly. The Secretary General shall inform the other Contracting Parties of any notification received in accordance with this paragraph."

Article 9 of the 1977 European Convention on the Suppression of Terrorism, as introduced by the second additional protocol states that:

"The Contracting States may conclude between themselves bilateral or multilateral agreements in order to supplement the provisions of this Convention or to facilitate the application of the principles contained therein."

2. Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States (2002/584/JHA)

On 13 June 2002 the Council adopted the aforementioned framework decision which, with effect from 1 January 2004, replaces the corresponding provisions of the aforementioned instruments in the field of extradition in relations between the Member States (Article 31(1)(a)).

The framework decision on the European arrest warrant establishes arrangements which are significantly different from traditional extradition mechanisms in that the procedure is entirely judicial, is subject to strict deadlines and makes provision for only a limited number of grounds for refusals, such as non-extradition of nationals, the political nature of offences or the lack of double criminality where the offence is on a list of thirty-two categories and the maximum penalty is at least three years' imprisonment.

The framework decision entered into force on the twentieth day following its publication in the Official Journal, i.e. 7 August 2002. The Member States must comply with its provisions by 31 December 2003 at the latest.

Requests received from 1 January 2004 onwards will be governed by the implementing rules for the framework decision adopted by the Member States. However, when the framework decision was adopted, France made it known pursuant to Article 32 that it would continue to process requests relating to offences committed before 1 November 1993 in accordance with the extradition system applicable prior to 1 January 2004. Austria and Italy made similar declarations with regard to offences committed before 7 August 2002, the date on which the framework decision entered into force.

Pursuant to Article 31(2) of the framework decision, Member States may continue to apply bilateral or multilateral agreements or the arrangements in force when the framework decision was adopted in so far as those agreements or arrangements allow its objectives to be extended or enlarged and help to simplify or facilitate procedures for surrendering persons for whom European arrest warrants have been issued.

Member States may also conclude bilateral or multilateral agreements or arrangements after the framework decision enters into force in so far as those agreements or arrangements allow its provisions to be extended or enlarged and help to simplify or facilitate procedures for surrendering persons for whom European arrest warrants have been issued, in particular by fixing time limits shorter than those laid down in Article 17, by extending the list of offences indicated in Article 2(2), by further limiting the grounds for refusal set out in Articles 3 and 4 or by lowering the threshold provided for in Articles 2(1) or 2(2).

Finland, Denmark and Sweden gave notice on 5 and 7 November 2002 respectively that they would continue to apply the uniform law established between them on extradition in so far as the framework decision allowed.

3. Notification to the Secretary General of the Council of Europe

There is no doubt that the European arrest warrant constitutes a uniform law within the meaning of Article 28(3) of the 1957 European Convention on Extradition.

The above statement is undiminished by the fact that Member States may apply arrangements agreed previously between themselves or conclude new agreements to simplify or facilitate procedures for surrendering persons for whom European arrest warrants have been issued, given that these improvements are specifically authorised within the context of executing these warrants.

Article 28(3) of the European Convention on Extradition does not lay down a specific deadline by which two or more contracting parties must notify the Secretary General of the Council of Europe that their mutual relations in respect of extradition are regulated exclusively in accordance with uniform law and not by the Convention. The third sentence of paragraph 3 clearly states that this notification may take place prior to implementation of the uniform law. Given that the framework decision entered into force on 7 August 2002 and should be implemented by 1 January 2004 at the latest (except, as regards France, Italy and Austria, in their capacity as executing Member States, in respect of offences committed prior to 1 November 1993 in the case of France and 7 August 2002 in the cases of Italy and Austria), this notification may be effected right away.

The case for immediate notification is reinforced by the opening for signature on 15 May 2003 of the Protocol amending the European Convention on the Suppression of Terrorism, Article 5 of which inserts a new Article 9 into the 1977 Convention. It should be emphasised that this new Article does not affect in any way the possibility of applying specific arrangements for extraditing or surrendering persons, for instance in the form of a uniform law, between two or more contracting parties pursuant to Article 28(3) of the 1957 Convention. Accordingly, a notification should be made as soon as possible to the Secretary General of the Council of Europe of the impending introduction of the European arrest warrant, with a view to transparency and clarity vis-à-vis the other contracting parties.

4. Procedure

Article 34 of the Union Treaty states that, acting unanimously on the initiative of any Member State or of the Commission, the Council may adopt common positions defining the approach of the Union to a particular matter. According to Article 37 of the Union Treaty, Member States defend the common positions adopted under the provisions of this Title within international organisations and at international conferences in which they take part. Under Article 18, which is applicable to Title VI, it is the Presidency which expresses the position of the Union in international organisations.

This was the procedure followed in the past for negotiating international instruments. [1]

[1] Common Position of 6 October 1997 defined by the Council on the basis of Article K.3 of the Treaty on European Union on negotiations in the Council of Europe and the OECD relating to corruption (97/661/JHA); Second Common Position of 13 November 1997 defined by the Council on the basis of Article K.3 of the Treaty on European Union on negotiations in the Council of Europe and the OECD relating to corruption (97/783/JHA); Common Position of 29 March 1999 defined by the Council on the basis of Article K.3 of the Treaty on European Union on the proposed United Nations convention against organised crime (1999/235/JHA); Common Position of 27 May 1999 adopted by the Council on the basis of Article 34 of the Treaty on European Union on negotiations relating to the Draft Convention on Cyber Crime held in the Council of Europe (1999/364/JHA); Common Position of 31 January 2000 on the proposed protocol against the illicit manufacturing of and trafficking in firearms, their parts and components and ammunition, supplementing the United Nations Convention against transnational organised crime (2000/130/JHA).

However, there is nothing in those Articles to suggest that the sole purpose of common positions is to negotiate international instruments. On the contrary, the common position is the most appropriate means of notifying an international organisation (the Council of Europe) that the Member States of the European Union will use an instrument specific to them within the framework of their mutual relations (the framework decision on the European arrest warrant) to the exclusion of the 1957 European Convention on Extradition and the additional protocols. Hence the proposal that the Presidency make a notification to that effect at the Committee of Ministers meeting when the additional protocol to the 1977 Convention for the Suppression of Terrorism is opened for signing. That notification will refer to the restrictions placed by France, Austria and Italy, pursuant to Article 32 of the framework decision, on acceptance of the European arrest warrant in respect of requests concerning offences committed prior to the dates set by those countries.

5. Wording

Article 28(3) of the European Convention on Extradition does not require a particular wording. The wording of the enclosed text is designed to ensure that it:

- applies to the mutual relations between the current and future Member States of the European Union;

- applies in all cases, including in circumstances in which another State which is party to the conventions but is not part of the European Union makes an extradition request for the same person;

- refers to the whole of the framework decision as regards the scope for Member States to apply arrangements which further simplify the surrender of persons for whom European arrest warrants have been issued and to the declarations made by France, Austria and Italy pursuant to Article 32 of the framework decision;

- emphasises that implementation by the Member States of the framework decision on the European arrest warrant replaces, in their mutual relations, both the 1957 European Convention on Extradition and its protocols and the 1977 Convention and its protocols, in so far as it concerns extradition;

- covers possible future developments within the European Union on the basis of the framework decision on the European arrest warrant and relevant European law.

Proposal on a COUNCIL COMMON POSITION on notifying the Council of Europe, pursuant to Article 28(3) of the European Convention on Extradition of 13 December 1957, of the application by the Member States, as between themselves, of the European arrest warrant

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty on European Union, and in particular Article 34(2)(a) thereof,

Having regard to the proposal from the Commission,

Whereas:

(1) On 13 June 2002 the Council of the European Union adopted a Framework Decision on the European arrest warrant and the surrender procedures between Member States.

(2) This Framework Decision entered into force on 7 August 2002 and the deadline for transposing it into national law is 31 December 2003.

(3) Pursuant to Article 31(1) thereof, from 1 January 2004 this Framework Decision is to replace the provisions applicable in the field of extradition in relations between the Member States, of the European Convention on Extradition of 13 December 1957 and its protocols and the European Convention on the Suppression of Terrorism amended by a protocol opened for signature on 15 May 2003, in so far as it concerns extradition.

(4) The Framework Decision on the European arrest warrant constitutes a uniform law which is common to the Member States of the European Union and by which their mutual relations in the field of extradition will henceforth be regulated, to the exclusion of the aforementioned instruments.

(5) Pursuant to Article 28(3) of the European Convention on Extradition, it is appropriate to make a notification to this effect to the Secretary General of the Council of Europe.

(6) For the sake of clarity, transparency and legal certainty, it is appropriate to make a joint notification.

(7) A common position is the best way of ensuring that this objective is met in the form of a univocal notification for which the Presidency is charged.

HAS ADOPTED THIS COMMON POSITION:

Article 1

The Member States agree that it is appropriate to make the following joint notification to the Secretary General of the Council of Europe pursuant to Article 28(3) of the European Convention on Extradition of 13 December 1957:

"Pursuant to Article 28(3) of the European Convention on Extradition of 13 December 1957, as from 1 January 2004 at the latest, the Member States of the European Union will regulate their mutual relations in the field of extradition exclusively on the basis of the Council Framework Decision on the European arrest warrant and the surrender procedures between Member States and any future developments based on that framework decision and the relevant provisions of the Treaty on European Union, and not on the basis of the aforementioned Convention or of its additional or amending instruments.

France, on the one hand, and Austria and Italy on the other, have declared at the time of adoption of the Framework Decision that they intend to continue processing requests concerning offences committed prior to 1 November 1993 and 7 August 2002 respectively according to the extradition system applicable before 1 January 2004".

Article 2

The Presidency is charged with making this notification on behalf of the Member States on the occasion of the opening for signature of the additional protocol to the European Convention on the Suppression of Terrorism of 27 January 1977.[or ,subsequently, at the latest by 31 December 2003]

Article 3

This Common Position shall be published in the Official Journal of the European Union.

Done at Brussels, [...]

For the Council

The President