WRITTEN QUESTION E-1392/03 by Charles Tannock (PPE-DE)and Timothy Kirkhope (PPE-DE) to the Council. Implications of the creation of the offence of Racism and Xenophobia in the context of the European Arrest Warrant.
Date: 2003-04-15
Institutions: European Parliament, Provisional data
Subjects: EU Member State, European Convention on Human Rights, European arrest warrant, Treaty on European Union, extradition, fundamental rights, judicial cooperation in criminal matters in the EU, racism, right to justice, xenophobia

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Official Journal of the European Union

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20.3.2004

not be exempted from notification pursuant to the Commission Block Exemption Regulation (EC) No 2204/
2002 of 12 December 2002 on the application of Articles 87 and 88 of the EC Treaty to State aid for
employment (1), its compatibility will be assessed under the relevant State aid rules.

(1) OJ L 337, 13.12.2002, and Corrigendum OJ L 349, 24.12.2002.

(2004/C 70 E/044)

WRITTEN QUESTION E-1392/03

by Charles Tannock (PPE-DE)
and Timothy Kirkhope (PPE-DE) to the Council

(15 April 2003)

Subject: Implications of the creation of the offence of Racism and Xenophobia in the context of the

European Arrest Warrant

The principle of double-criminality was abolished for thirty-two offences covered by the European Arrest
Warrant including Racism and Xenophobia.

During recent debates in the UK Parliament it has been suggested by the British government that under the
terms of the agreement reached in the Council of Ministers it will not be possible for a person who has
committed a racist or xenophobic offence to be surrendered by one Member State to another if the offence
was not committed in the requesting state. Thus, a Belgian or French magistrate would not have the power
to request surrender of a British national for an offence committed in Britain which was not committed in
Belgium or France. Does the Council accept this as an accurate representation of the legal position reached
by the Council?

The Council has also agreed to special measures designed to protect the freedom of the press. What is the
exact form of this protection and will
it lead to differential standards of protection of freedom of
expression as between ordinary citizens and journalists?

Finally, Article 10 of the European Convention of Human Rights reads as follows:

Everyone has the right to freedom of expression. This right shall

1.
include freedom to hold
opinions and to receive and impart information and ideas without interference by public authority and
regardless of
frontiers. This article shall not prevent States from requiring the licensing of
broadcasting, television or cinema enterprises.

2.
The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject
to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a
democratic society, in the interests of national security, territorial integrity or public safety, for the
prevention of disorder or crime, for the protection of health or morals, for the protection of the
reputation or the rights of others, for preventing the disclosure of information received in confidence,
or for maintaining the authority and impartiality of the judiciary.

Are the offences of racism and xenophobia confined to actions or statements which involve incitement to
violence or the threat of violence or intimidation against the person or which threaten public safety and,
if not, how are the proposals consistent with the European Convention on Human Rights?

Reply

(8 December 2003)

The European Arrest Warrant (1) was adopted by the Council on 13 June 2002. It institutes a system
which, in principle from 1 January 2004, abolishes the lengthy and complicated extradition system which
until now has prevailed within the European Union on the basis of a Council of Europe Convention
adopted in 1957.

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The European Arrest Warrant makes it possible, under the conditions of the Framework Decision,
to surrender persons for purposes of conducting a criminal prosecution or executing a custodial sentence
or a detention order. That Decision lays down the time limits and procedures for the decision to execute
the European arrest warrant (Article 17) and the time limits for surrender of the person (Article 23).

The Council believes that the introduction of a new simplified system for surrender of convicted or
suspected persons for the purpose of the execution of sentences or criminal prosecution is in the interests
of the administration of justice since:

(cid:1) the trial takes place in the State that has issued the European Arrest Warrant;

(cid:1) the offence has most often been committed in that State;

(cid:1) it is in the interest of the victims, who usually would be in that Member State, to ensure that a trial

can take place as rapidly as possible, while safeguarding the interests of the alleged offender.

The Council believes that the old extradition system did not sufficiently translate the Treaty objective of the
creation of an Area of Freedom, Security and Justice and that it had to be replaced by a modern system
which would also more appropriately safeguard the interests of the offender.

In order to achieve this objective, the Council has, inter alia, decided to abolish double criminality for
thirty-two categories of offences, among which figure racism and xenophobia (see Article 2(2) of the
Framework Decision). It is the law of the issuing Member State that defines the constituent elements of the
act. For instance, if a European Arrest Warrant has been issued in France, it is French law that determines
the offence.

However, in order to safeguard the interests of justice and those of the executing Member State, a number
of mandatory or optional grounds for refusals (more than ten) have been included in the Framework
Decision. One such ground for refusal would be when the European Arrest Warrant relates to an offence
which is regarded by the law of the executing Member State as having been committed in whole or in part
in the territory of that State or in a place treated as such (see Article 4(7)(a) of the Framework Decision).

For instance, in the example given by the Honourable Member, if a judge in one Member State issues an
arrest warrant for an offence that has been committed in another Member State, the latter could refuse to
execute such a warrant. Similarly, it could refuse to execute an arrest warrant if the offence has taken place
outside the territory of the Member State which issued the arrest warrrant and if its national law does not
allow prosecution for the same offence when committed outside its territory (see Article 4(7)(b)).

For the application of these provisions, the issue of nationality does not come into play, but the
Framework Decision contains other provisions as regards safeguards for the nationality of offenders.

The Council would also draw the attention of the Honourable Members to Article 1(3) of the Framework
Decision, from which it expressly follows that the Framework Decision shall not have the effect of
modifying the obligation to respect fundamental rights and fundamental legal principles as enshrined in
Article 6 of the Treaty on European Union. This follows already from the Treaty itself, so legally speaking
it would not have been necessary to include such language in the Framework Decision, but the Council
found it appropriate to do so in relation to this Framework Decision.

The Council would also draw attention to recital 12, which further reinforces the point just made.
Moreover, all Member States are parties to the European Convention of Human Rights and are bound by
its provisions.

The Council (JHA) has examined the draft Framework Decision on combating racism and xenophobia,
most recently at its meeting on 27/28 February 2003. The draft was at that time subject to a number of
reservations by different delegations. Despite further discussions on the draft held subsequently in the
Article 36 Committee,
it has not yet been possible to reach a compromise on the text. Questions
outstanding include in particular the exact definition of the offences of racism and xenophobia and
possible limitations of the scope of criminal liability for these offences, including limitations related to the
freedom of the press.

(1) OJ L 190, 18.7.2002, p. 1.