WRITTEN QUESTION E-1310/02 by Kathalijne Buitenweg (Verts/ALE) to the Commission. Lack of minimum procedural guarantees and human rights violations and their implications for application of the European arrest warrant as from April 2003.
Date: 2002-05-07
Institutions: European Parliament, Provisional data
Subjects: EU Member State, European arrest warrant, application of EU law, cruel and degrading treatment, extradition, fundamental rights, human rights

17.4.2003

EN

Official Journal of the European Union

C 92 E/45

Answer given by Mr Vitorino on behalf of the Commission

(6 June 2002)

The Honourable Member raises the point that British citizens having been living abroad for more than
15 years lose their right to vote in the United Kingdom.

The right to vote of own nationals of a Member State in elections of that Member State belongs fully to
the competence of the Member States, independent whether those citizens reside in its territory or outside
of its territory. This is explicitly confirmed in the relevant Directives 93/109/EC (1) and Directive 94/80/
EC (2), which provide that nothing in those Directives affects each Member State’s provisions concerning
the right to vote or to stand as a candidate of its nationals who reside outside of its territory.

The Community law guarantees only that every Union citizen has the right to vote and stand as a
candidate at elections to the European Parliament and at municipal elections in the Member State in which
he resides, under the same conditions as nationals of that State.

Because of the lack of the competence the Commission does not plan to take any actions relating to the
right to vote of nationals of a Member State residing outside of its territory.

(1) Council Directive 93/109/EC of 6 December 1993, laying down detailed arrangements for the exercise of the right
to vote and stand as a candidate in elections to the European parliament for citizens of the Union residing in a
Member State of which they are not nationals, OJ L 329, 30.12.1993.

(2) Council Directive 94/80/EC of 19 December 1994, laying down detailed arrangements for the exercise of the right
to vote and stand as a candidate in municipal elections by citizens of the Union residing in a Member State of
which they are not nationals, OJ L 368, 31.12.1994.

(2003/C 92 E/048)

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?

How does the Commission monitor and report on violations of the fundamental rights enshrined in

2.
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?

C 92 E/46

Official Journal of the European Union

EN

17.4.2003

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
It reaffirms the Commission’s
and fundamental
undertaking to combat racism and xenophobia with all the means provided for in the Treaties.

freedoms that are common to all Member States.

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.