WRITTEN QUESTION E-3112/01

by Erik Meijer (GUE/NGL) to the Commission

(13 November 2001)

Subject: Impact of proposed anti-terrorism Framework proposals and European arrest warrant contrary to existing civil rights

In the matter of its Framework for combating terrorism (12103/01 Droipen 81), drawn up on 19 September, and the growing fear it has elicited among European citizens of unwarranted detention on the basis of a European arrest warrant for actions that have never been and never should amount to an offence by any natural standard of justice, and that consequently must not be allowed to compromise the integrity of any law-abiding citizen.

Can the Commission answer the following questions concerning the intended or unintended consequences of the possible implementation of those proposals:

1. What scope is being given to the courts to deprive individuals of rights hitherto regarded as self-evident, in particular by detaining suspects on suspicion without charges for longer than currently permitted, and/or denying them access to defence lawyers?

2. At what stage in proceedings will a suspect become eligible for legal aid, and will legal aid continue to be provided across borders for the duration of the whole proceedings at no extra cost to the suspect?

3. Will it become an offence to hold certain political or other views, such as advocating changes in state institutions or in decisions having an impact on the economy, or giving public expression to such views and seeking to win support for them?

4. What scope will remain for extra-parliamentary action, in particular the right to hold demonstrations and meetings in public places, take strike action and mount employee workplace occupations as a means of bringing pressure to bear?

5. Will it be possible for what are now lawful organisations to be prosecuted or banned as a consequence of the behaviour of a few of their members?

6. In what circumstances might actions that are permitted in one Member State such as induced abortion, voluntary euthanasia and soft-drug consumption become liable to prosecution on the grounds that they constitute offences in another Member State?

Answer given by Mr Vitorino on behalf of the Commission

(11 January 2002)

The Member States have now reached an agreement on the European arrest warrant that will replace the current extradition system by an entirely judicial procedure for surrender. It will not have any negative consequences on fundamental rights and freedoms. Pre-trial detention will be shorter than under the current extradition scheme, as a time limit for surrender will be introduced. Legal aid will continue to be provided during the entire procedure. Moreover, the Member States have chosen to introduce a positive list of offences that will only include serious offences, which are known by all Member States. These offences will not require double criminality. The threshold for the offences in the positive list will be at least three years. These offences will be defined by the law of the issuing (requesting) State. The general threshold for other offences for which double criminality will be required will be one year for the pre-trial situation and four months for the post-trial situations. Prosecution for such offences as abortion, voluntary euthanasia and soft-drug consumption will continue to be based on national law. This type of offences are not included in the positive list (questions 1-2 and 6).

As regards the proposal on combating terrorism, the following can be said:

It will not become an offence to hold certain political or other views, as this does not fall under the scope for the terrorist offences listed in Article 1 of the Framework Decision on combating terrorism (question 3). This Article establishes the definition of terrorist offence as follows:

Each Member State shall take the necessary measures to ensure that terrorist offences include the following list of intentional acts which, given their nature or their context, may seriously damage a country or an international organisation, as defined as offences under national law, where committed with the aim of:

(i) seriously intimidating a population, or

(ii) unduly compelling a Government or international organisation to perform or abstain from performing any act, or

(iii) seriously destabilising or destroying the fundamental political, constitutional, economic or social structures of a country or an international organisation.

This wording is close to the text of the UN Convention for the Suppression of the Financing of Terrorism (1999), which is likely to inspire the forthcoming comprehensive convention on international terrorism.

The scope for extra-parliamentary action remains the same as now (question 4). Under no circumstances a peaceful demonstration could fall under this Article. Further clarifications have been introduced into the text in order to meet the concerns that political action and free speech could be jeopardised, for example in the context of trade union activities or anti-globalisation movements. It is made clear that such conduct could not come within the scope of the Framework Decision, and Recital (10) reads:

This Framework Decision respects fundamental rights as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms and as they emerge from the constitutional traditions common to the Member States as principles of Community law. The Union observes the principles recognised by Article 6(2) of the Treaty on European Union and reflected in the Charter of Fundamental Rights of the European Union, notably Chapter VI thereof. Nothing in this Framework Decision may be interpreted as being intended to reduce or restrict fundamental rights or freedoms such as the right to strike, freedom of assembly, of association or of expression, including the right of everyone to form and to join trade unions with others for the protection of his or her interests and the related right to demonstrate.

A Council Declaration has also been brought to the text as follows:

The Council states that the Framework Decision on the fight against terrorism covers acts which are considered by all Member States of the European Union as serious infringements of their criminal laws committed by individuals whose objectives constitute a threat to their democratic societies respecting the rule of law and the civilisation upon which these societies

are founded. It has to be understood in this sense and cannot be construed so as to argue that the conduct of those who have acted in the interest of preserving or restoring these democratic values, as was notably the case in some Member States during the Second World War, could now be considered as terrorist acts. Nor can it be construed so as to incriminate on terrorist grounds persons exercising their fundamental right to manifest their opinions, even if in the course of the exercise of such right they commit offences.

It is also clear that lawful organisations are not affected by this instrument, even if one of its members commits a terrorist offence (question 5).

The Honourable Member is also invited to consult the text agreed at the JHA Council on 6-7 December 2001 from which it will be seen that many of his concerns have been addressed.