WRITTEN QUESTION E-0530/02

by Charles Tannock (PPE-DE) to the Commission

(25 February 2002)

Subject: Immunity and the European Arrest Warrant

To avoid the kind of protracted legal dispute that ensued in the U.K. following the arrest of former President Pinochet despite an International Treaty commitment on the part of the U.K. government not to arrest current or former heads of government (superseded in the opinion of a majority of Law Lords by a later international commitment) can the Commission list the persons who will be immune from arrest under the terms of the European Arrest Warrant, and make it absolutely clear in the legislation whether this will include EU diplomats, current and former heads of state, government ministers, members of national Parliaments, the European Parliament and the European Commission?

Answer given by Mr Vitorino on behalf of the Commission

(9 April 2002)

A political agreement on the Framework Decision on the European arrest warrant was reached by the Council on 12 December 2001. The Parliament approved the proposal(1) at the start of February 2002, and formal adoption is planned for April or May 2002.

Article 17c of the Framework Decision provides that when the requested person enjoys a privilege or immunity, a European arrest warrant cannot be executed unless the executing judicial authority is informed that the privilege or immunity has been waived.

The authority competent to waive the immunity can either be, depending on the type of privilege or immunity, the executing State (for example if the requested person benefits from a specific immunity as a Member of Parliament or government minister) or another State. In the first case, the executing judicial authority shall send a request to the authority competent to waive the immunity. In the second case, it is up to the issuing judicial authority to make the necessary request to the competent authority, to waive the immunity. If it is possible regarding the specific status of the person who enjoys the immunity, and if the law of the executing Member State so permits, the necessary measures to ensure that the effective surrender could take place shall be taken. In any event, apart from immunity conferred by international conventions (such as the UCDR 1964)(2), the provisions on immunity vary from Member State to Member State and are governed by national law.

Regarding the specific issue of immunity, Article 4(7) paragraph 2 should also be mentioned. Under this Article, the executing State is not obliged to execute the European arrest warrant when the offence was committed outside the territory of the issuing Member State and when the law of the executing Member State does not allow prosecution for the same offences when committed outside the territory of the executing Member State. This could for example entitle a Member State not to provide assistance through the execution of a European arrest warrant, when another Member State has applied a universal jurisdiction clause which would not be applicable for the same type of case in the executing State.

(1) OJ C 332 E, 27.11.2001.

(2) Vienna Convention on Diplomatic Relations from 1961, entry into force 1964.