Arrested Development

Civitas, 20 April 2011

The European Commission has published its third report on the European Arrest Warrant (EAW), and has catalogued a series of failures. During the course of its research, the Commission received complaints about the EAW not only from dedicated NGOs and lawyers, but also from national legislatures and even the European Parliament itself. Yet, while the report is the most critical to date, many of the criticisms should come as no surprise.

The EAW has had some undeniable success stories, such as the arrest of a would-be London bomber in Italy, or the gang of Italian armed robbers who were finally apprehended in six different EU states. In addition, it has slashed the average length of extradition from a year down to 16 days when the suspect complies and to 48 days when they do not. However, the system has long been lambasted by human rights organisations as disproportionate and lacking basic safeguards. For every commendable case, there is a host of disasters.

Take, for example, the case of the grandfather who faces extradition to Poland from the UK. His crime? Exceeding his overdraft limit more than a decade ago. The debt has long been repaid and the retired British schoolteacher is in poor health, having suffered multiple strokes, yet he is still being pursued for the alleged ‘theft’.

The report notes the excessive use of this ‘no evidence required’ system by a number of the EU states. The worst offenders are countries with no prosecutorial discretion – such as Poland, Lithuania and the Czech Republic – whose domestic law compels the pursuit of all suspects, regardless of the severity of their alleged crime.

In 2009 alone, Poland issued 4,844 EAWs, which, combined with the next highest country, Germany (2,433), accounts for almost half of the total number of warrants issued throughout the entire EU. And while the UK issued only 220 warrants – of which 80 were executed – more than half of the 4,000 extradition requests received by Britain in 2010 came from Poland.

Yet it is not just the scale of misuse that has caused alarm. Justice Commissioner, Viviane Reding has warned against the ‘mechanical’ use of the EAW for “crimes that are not very serious, such as bicycle theft”. Indeed, Poland has demanded the return of suspects for stealing chocolate and the theft of a pudding.

So what is to be done with this indisputably flawed system? Top of the list of reform seems to be a ‘proportionality test’, to filter out cases that are not appropriate for the EAW. How exactly this would be implemented, however, remains uncertain. Moreover, this view is not universal. UKIP MEP, Gerard Batten, has argued that only using the EAW for the worst offences “is a complete red herring”, noting that many of those arrested under the system for serious criminal or terrorist offences could have been extradited under national systems in any case.

Catherine Heard, Head of Policy at Fair Trials International, has commented that “[le]gislative change may be the only answer”, and the Commission has not ruled out this possibility; nonetheless, it is an option it would rather avoid. Instead, it has opted to achieve change through softer procedural reform, calling on member states to “fill the gaps” in their domestic legislation. Areas in need of particular improvement include the guarantee of legal representation and better training for judges and criminal justice practitioners. The Commission will table these legislative proposals by the end of the year.

But plans for reform do not stop there. The Justice Commissioner introduced the report the day before a meeting with ministers in Luxembourg to discuss the controversial new “EU investigation order”, which would facilitate the sharing of evidence between prosecutors and police across internal EU borders. However, whilst “the UK is in the lead on this,” an EU diplomat has admitted, “a lot of countries are very reluctant”.

Many of the Commission’s proposals have great potential and are to be welcomed. However, simply calling for basic rights of defence – which should be guaranteed in any case – will prove insufficient to eliminate the pitfalls of the current system. Though praising the warrant as a “crucially successful tool” in combating crime, Sarah Ludford MEP has called for extensive reform, including the introduction of “an explicit provision allowing a court in one member state to invoke the risk of breach of fundamental rights as justification to refuse extradition to a second member state”. The Commission should, initially at least, adopt this approach – allowing member states to implement improvements themselves, raising the common standard without imposing top-down, EU-led decisions.