ECBA Spring Conference 2004, Paris, France

30 April - 1 May 2004

Theme: "The European Arrest Warrant"

A REPORT FROM THE CHAIR OF THE CONFERENCE COMMITTEE, LOUISE HODGES

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The European Criminal Bar Association (ECBA) Spring Conference 2004 was staged at the magnificent location of the Bibliothèque de l’Ordre des Avocats at the Palais de Justice in Paris. The conference was held on the historic date of 1 May 2004 when 10 accession states joined the European Union. The conference discussed the concerns and potential risks to the rights of the accused within the expanded number of states and the Association’s aim to promote the rights and freedoms of the accused, defendant and convicted person in the new Europe. The ECBA was welcomed by representatives of the Paris Bar Association, Olivier Gutkes and Jean-Yves Leborgne who had organised the fantastic venues for the conference and conference dinner and assisted in the development of the programme. Han Jahae, Chair of the ECBA, thanked the Paris Bar Association for their hospitality. He described the transformation in Europe since his first visit to Paris. Since then, the free movement of capital, goods and people has ensured an end to border controls, passport checks and currency differences for his travels from Amsterdam to Paris. However as a consequence of these changes, laws, rules and regulations are being imposed at a European level and the criminal cases of significance are international. In order to protect the interests and rights of the suspect, defendant or convicted person the ECBA’s mission is to continue promoting discussion among its members and lobbying the relevant authorities on proposed legalisation, practices and procedures.

The first speaker at the conference was Isabelle Jegouzo, Principal Administrator at the European Commission Unit for Judicial Co-Operation in criminal matters. She noted the aim of the European commission was to make Europe a genuine forum where citizens can move in peace. As part of this process the European Arrest Warrant has become a minor revolution in criminal law creating a European judicial space. 10 years ago internal borders came down in Europe and with this there was a need for increased police and judicial co-operation both within the European Union and with its neighbouring countries, for example Iceland and Norway. European criminal legislation is based on a concept of harmonisation and mutual recognition ensuring consistency and homogeny. She recognised that each member state’s criminal justice system enshrines the culture of that nation, however there needs to be confidence and trust in the judicial systems and decisions of each member state in order for mutual recognition to be effective. The European Arrest Warrant has replaced extradition which was perceived as lengthy and cumbersome and not appropriate to the European space without borders. Following the framework decision, each member state has set up its own schedule or chart of when European Arrest Warrants can be accepted or refused. The European Arrest Warrant takes away the need for dual criminality for specified crimes enabling a standard format arrest warrant to be used. The examining magistrate’s role in issuing and executing European Arrest Warrants protects the liberties of the individual and each country has its own checks and balances in its criminal justice system. The key to the European Arrest Warrant is the mutual trust in each system.

We then welcomed Olivier Geron, juge d’instruction who discussed how the European Arrest Warrant has been implemented and operated in France. The procedure involves a judicial decision executed by a judicial authority, however French legislation does not specify how the European Arrest Warrant should be recorded in France. Under the previous system the public prosecutor would be notified. Once a warrant has been received, if bail is granted the Ministry of Justice must be informed to prevent an individual being re-arrested on the same grounds. The system allows both mandatory and discretionary refusal of surrender on specified grounds.

We were then delighted to hear from Judge Blekxtoon, Senior Judge from Holland, who discussed his views on the European Arrest Warrant. This was a particularly significant day as it was Mr Blekxtoon’s 70th birthday and therefore his day of retirement. He is involved in various different projects concerning the European Arrest Warrant, in particular monitoring the implementation and practical difficulties arising out of the European Arrest Warrant. He has particular experience as he has been in office for 18 years at the main court dealing with extradition matters in Holland, a country which has the highest extradition rate in Europe. Mr Blekxtoon noted that significant difficulties arose due to the different translations of the framework decision. There are 15 different language texts which have material differences in the translations. This will inevitably lead to differences in the national legislations. There are also historical difference in the way member states have dealt with extradition for example, in the past Holland has reserved its right to suspend extradition to particular countries and some countries do not accept the jurisdiction of the European court to deal with pre-court decisions. With regard to the 32 criminal offences listed in the European Arrest Warrant the list confusing. Both “swindling” and “fraud” are present in the list which have a particular definition in French law not evident in other jurisdictions. This has a knock on affect with other parts of the European Arrest Warrant, for example, the Framework Decision grants a right for the convicted person to serve a sentence in their home state, however this can cause conflicts with domestic law. To take an example, breach of trust offences in Germany are not offences in Holland. It is against Dutch law to execute a custodial sentence for an offence which is not punishable in Holland and therefore the loss of dual criminality has created a conflict between European and national law. Another example is rape. There was no definition in the European Arrest Warrant. In Holland if someone with a “lascivious intent” French kisses somebody without his or her consent this can constitute rape. This is not true of other European countries and is surely not the type of offence that the European Commission was seeking to cover in the European Arrest Warrant. In conclusion dual criminality cannot be dispelled with easily or lightly. Another particular criticism is the standardised form of the warrant which requires the issuing country merely to tick a box if it is a specified offence. The judicial authority in the executing state cannot go behind that form and assess the offence or verify any significant issues for example statute of limitation for an offence.

The programme then moved onto discuss the European Evidence Warrant. Professor Joachim Vogel noted that the old mechanisms concerning obtaining and transmission of documents were deemed to be slow and inefficient and traditional principles criticised. However in his opinion international co-operation has worked; there is a presumption of innocence and a system of checks and balances to ensure the system was fair. Where decisions from one jurisdiction are imposed into another there is a risk these checks and balances will be upset. The framework decision on European Evidence Warrant currently excludes personal evidence (eg. witness statements) and body samples (eg. DNA). However, if there are pre-existing documents dealing with witness testimony which would not normally be obtainable on an informal request, the European Evidence Warrant could be used to obtain such evidence. There are safeguards in the framework decision that evidence cannot be obtained that would not be discloseable in the issuing jurisdiction. However how can this be challenged? The party affected by the European Evidence Warrant, whether the subject of an investigation or third party, can only seek a legal remedy after the warrant has been executed. The speaker’s opinion was that in some jurisdictions the judiciary will not accept a European Evidence Warrant if it is not compatible with the ECHR. It is clear that the current list of 32 offences will expand and the concept of dual criminality will eventually be abolished. With regard to grounds for non-execution, personal privilege must be recognised in the executing state and again in the speaker’s opinion the judiciary will be reluctant to execute those warrants that give very little information or specificity. There was also a huge gap in legal remedies as the process cannot be started until the data has already been transmitted. There is no legal remedy where there has been co-operation or if the material is already held by a judicial authority. The lawfulness of the warrant can only be adjudicated in the issuing state, and therefore in order to make this system fair the issuing state must be compelled to provide funding for lawyers in both the issuing and executing state and translations of the relevant law and cases.

Paul Garlick QC continued the debate noting that in England and Wales he has a prosecution, defence and judicial role. However for the purposes of the conference he was reviewing the European Evidence Warrant as a defence practitioner and he is sure that the drafters of the framework decision had not contemplated the defence perspective. Mutual recognition depends on absolute trust and therefore there must be absolute openness with transparency and disclosure of information and the same powers for all parties. For any of the European criminal legislation to be effective, minimum safeguards need to be in place rather than merely a statement of intent. Mutual recognition is essential but must be based in reality, transparency and with safeguards. With regard to whether rights are protected, this can only be done in an environment where there is equality between the prosecution and defence. The ability to resolve an issue of innocence or guilt requires consideration of the evidence, and not only the prosecution need powers to gather evidence but there must be a fair balance for the defence. In reality the prosecution are always three or four steps ahead of the defence and usually in the early stages of an investigation the defendant does not even know that applications are being made to acquire evidence. In order to rebut that prosecution evidence the system and powers available to assist the defence to gather evidence must be at least comparable to that of the prosecution. Necessity and proportionality are key words and concepts and the profession needs assurance that these checks and balances can be operated. Even where there has been no coercion there may still be infringements on human rights and, in Mr Garlick’s opinion, there has been no reasonable reason put forward for limitations on the legal remedies, in particular, that the European Evidence Warrant can only be challenged in the issuing state. The concept of mutual trust and recognition is said to be paramount but how can this be compatible with the prevention of examination of the criteria used? People who are going to be subject to a European Evidence Warrant are likely to face extreme linguistic, financial and technical difficulties which will prejudice the rights of the defence and any other party who becomes involved in the procedure. Therefore there need to be two provisions: the right to be assisted by legal counsel and interpreters, and, the provision of legal aid in the issuing state. Without this the safeguards are illusionary. Further there should be an opportunity to challenge the warrant in the executing state both on behalf of the defendant and any third party. Currently the European Evidence Warrant is incompatible with a defence application. We must not lose sight that the ultimate quest is one of justice.

The morning session closed with the Co-Chairs of the ECBA Legal Developments Committee, Holger Matt and Taru Spronken, giving an overview of the ECBA position on minimum standards and procedural safeguards. The ECBA particularly welcomed Caroline Morgan from the European Commission Unit for Judicial Co-operation in criminal matters who has played a significant role in drafting the original Green Paper and on minimum standards and procedural of safeguards and the draft Framework Decision. The aim of the ECBA is for communication and co-operation with the European Commission and it is anticipated that an effective dialogue can take place to ensure that the views of defence practitioners are considered. The defence practitioner has to accept that developments in European criminal law are virtually unstoppable and based on increasing powers and therefore we need to counterbalance this by insisting on procedural safeguards and pre-conditions through lobbying the European Commission as an independent organisation of defence lawyers.

After a wonderful lunch at Maison du Barreau, Holger Matt and Taru Spronken chaired the afternoon session highlighting the first steps in the ECBA project to monitor the European Arrest Warrant and to obtain information about the first experiences of the European Arrest Warrant in various jurisdictions. Most striking was the number of differences between the national legislations giving effect to the framework decision and can be seen in detail in the papers provided by the ECBA Legal Developments Committee to be inserted on the website.

Helen Malcolm spoke about the European Arrest Warrant in England and Wales and noted that only a few have been completed even though the instrument was available since 1 January 2004. The completed case was issued in Sweden pursuant to a child abduction case. The EAW was originally to be contested but eventually the individual consented to the procedure and no rulings of law were made. However it appears from this case that the main practical difficulties are not with the framework decision but with the implementation legislation which is ambiguous. Other problems include a multi-offence warrant which originally seemed to require a warrant for each offence (approximately 60) but now the authorities have accepted one warrant encompassing all the offences, also requests from Ireland include a confirmation from the executing authorities that they have reviewed the papers and confirm that the investigation is likely to result in a conviction and that the individual will not be re-extradited. This is essentially asking for a junior magistrate to sign a declaration that binds the Home Office which they will not do. However, in conclusion the possible arguments against transmission have not been diminished and, in fact, there is now a statutory basis for arguing ECHR points which had not previously existed.

Heiko Albrecht explained the position in Germany where the European Arrest Warrant is not yet implemented although this could be in the next week or so. Similarly Ilias Anagnostopoulos noted the European Arrest Warrant was not yet in force in Greece. The Greek constitution states that Greek nationals cannot be surrendered where the case can fall within the jurisdiction of the Greek courts and, further, the Greek courts have a jurisdiction to try any offence against a Greek national, therefore it is not envisaged that Greek nationals will be subject to an European Arrest Warrant executed in Greece. There are also major problems with the offences not covered by dual criminality there are no legal or technical descriptions provided. He concluded, there is a risk using dialogue dealing with “minimum” standards as those who have in the past achieved best standards are at risk of seeing such safeguards being diminished to a consensus of lower standards. As criminal practitioners we need to ensure that the best standards are achieved and maintained.

Rock Tansey and Xu Lanting reported to the conference on the ECBA China Death Row Project which is a project of training and networking between lawyers of the European community and China. As part of the project there were 10 Chinese lawyers in Paris who were meeting for two days with lawyers from Holland, England and France after the ECBA conference after which they would travel back to each of those jurisdictions to see how the systems worked in practice. Xu Lanting spoke of the Chinese lawyers’ work for freedom and their right to life and the continuing endeavour to strengthen the defence with a hope to reduce the number of cases and number of crimes that attract the death penalty. The delegates gave a standing ovation to Xu Lanting in support of the work that he and his colleagues were doing.

Finally, we were delighted to welcome Nancy Hollander from New Mexico in the United States to discuss treaties between the European Union and the US concerning extradition and mutual assistance. She commented that these were negotiated in secret and there was no publicity in the United States. After extensive legal research which had on the whole been very unsuccessful she eventually found copies of the treaties on an EU website. However, these have not been ratified by the United States and it appeared unlikely to happen for some time. It was also noted that it was not unheard of for the US to unilaterally violate or “unsign“ undertakings given, for example those on the International Criminal Court (ICC). There was reference to joint investigation teams, however the US were loath to resign any sovereignty and there is stiff opposition to any form of mutual legal assistance where the information may end up with the ICC.

Due to a highly successful and lively programme on a beautiful sunny day, the conference had overrun and therefore we were unable to have a discussion from the floor, however in the closing remarks Han Jahae noted one of the next major aims of the ECBA was to develop the website and make the discussion board more friendly and encouraged all members to join the debate on these and many other up and coming European criminal issues.

Can I take this opportunity to thank our French colleagues, Olivier Gutkes and Jean-Yves Leborgne, all the speakers who provided such an interesting and, at times, controversial interpretation and all the delegates, without whom the protection of the suspect, defendant or convicted person in the European Union would be impossible.