WRITTEN QUESTION E-1310/02

by Kathalijne Buitenweg (Verts/ALE) to the Commission

(7 May 2002)

Subject: Lack of minimum procedural guarantees and human rights violations and their implications for application of the European arrest warrant as from April 2003

Within the framework of closer cooperation in the law enforcement sphere, and in particular the Council framework decision on the European arrest warrant and the surrender procedures between Member States (14867/01 COPEN), mutual recognition is based on observance of fundamental rights.

This mutual trust is often no more than a political desire. As an illustration, a report recently published by Amnesty International details repeated inhuman treatment and torture perpetrated by government officials in Spain over the period 1995 to 2002. The European Charter of Fundamental Rights of the European Union (Article 19) and the proposal for a Council framework decision on the European arrest warrant (recital 12a) stipulate that no one may 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.

It is unclear what means the European Commission has at its disposal to monitor and make public any violations of fundamental rights in the EU.

1. Was the Commission aware or did have any suspicion of the instances of racist and inhuman treatment in Spain, as described by Amnesty International?

2. How does the Commission monitor and report on violations of the fundamental rights enshrined in Article 6 of the EU Treaty?

3. What changes in current working methods will the Commission be introducing with the entry into force of the Treaty of Nice and the possibility, provided for in Article 7, of reporting serious and continuing violations by a Member State of Article 6 to the Council, possibly leading to a suspension of the rights of the Member State concerned?

Answer given by Mr Vitorino on behalf of the Commission

(2 July 2002)

The Commission is aware of the Amnesty International Report Spain, crisis of identity, Race-related Torture and Ill-treatment by State Agents presented on 16 April 2002. This Report looks into the respect of fundamental rights of immigrants and ethnic minorities by state agents. The annual report of the European Monitoring Centre on Racism and Xenophobia referred to the Amnesty International Report for 2001, which reported cases of police brutality and the increasing number of allegations of illtreatment of immigrants by national, regional and municipal police in Spain.

The Commission strongly condemns all forms of racism and xenophobia which violate the human rights and fundamental freedoms that are common to all Member States. It reaffirms the Commission's undertaking to combat racism and xenophobia with all the means provided for in the Treaties.

In its conclusions of 25 and 26 April 2002 on the fight against racism, anti-Semitism and xenophobia, the Council of the European Union recalled, in particular, that national laws relating to the fight against racism and xenophobia should be harmonised while ensuring compliance with constitutional rules and respect for the principles underlying human rights and fundamental freedoms. It stressed the importance of the draft framework decision relating to the fight against racism and xenophobia presented by the Commission in December and currently under discussion in the Council. Here, the Commission would recall that it has no powers as regards the administration of justice in Member States and that it is for their judicial authorities to open criminal proceedings.

With regard to the monitoring of compliance with Article 6 of the Treaty on European Union (TEU), the instruments available to the Commission differ according to the legal framework within which a Member State could violate fundamental rights.

If the Member State is in breach of Community law, for example, by wrongly transposing a Community directive, the Commission can start the procedure provided for by Article 226 of the EC Treaty, requesting the Court of Justice to establish the infringement. Where the Member State does not comply with the judgment, the Court can impose a financial penalty.

If the Member State commits an infringement outside the framework of Community law, for example, during criminal proceedings for offences which are not linked to Community policies, the Commission can start the political procedure provided for in Article 7 of the TEU, by proposing that the Council meeting in the composition of the Heads of State or Government determine the existence of a breach. This procedure presupposes that the breach is serious and persistent and runs counter to the principles set out in Article 6 of the TEU. The decision requires Parliament's assent and unanimous voting by 14 Heads of State or Government. Then, the Council can, where appropriate, suspend certain rights of the Member State in question, and in particular its voting rights in the Council.

Article 7 in its current form enables the Council to take action only where a serious and persistent breach already exists. The Nice Treaty will make it possible to determine that there is a definite risk of a serious breach and will give Parliament a right of initiative at this new stage of prevention.

It must be recalled that in proceedings involving the European arrest warrant, the national courts of the Member States are fully bound by the European Convention on Human Rights. Article 1(3) of the draft framework decision refers to Article 6 of the TEU which, in turn, refers to the supremacy of the European Convention on Human Rights. Provisions recalling that the entire mechanism is required to respect fundamental rights as set out in the Charter of fundamental rights of the European Union, have been written into the preamble, in particular, recitals 12 and 13.

In other words, the Commission feels that where a person detained under a European arrest warrant might be exposed to a serious risk of torture or inhuman or degrading treatment, the implementing judicial authority should refuse to enforce the warrant. But in democratic States, all subject to the European Court of Human Rights, it can be presumed that fundamental rights will be respected and that trust is the order of the day.