Concern for Human Rights in the EU

At the end of 2013 the European Parliament’s Committee on Civil Liberties, Justice and Home Affairs sent a report to the European Commission referring to some weak points of the European Arrest Warrant (EAW), among which was the fact that the actual EAW is not taking into consideration as priority the respect for the human rights. Now, the executing party has the right to reject the request of extradition if there are Human Rights issues involved.

On 27th February 2014 two ground-breaking resolutions were presented.

The European Commission was prompted to set up a new system to monitor objective and permanent compliance with the EU accession criteria, commonly known as the "Copenhagen criteria". This new "Copenhagen mechanism" should serve to set indicators, draw up binding recommendations and impose penalties – such as freezing EU funding – for countries that fail to comply.

MEPs also suggest revising EU Treaty Article 7 – rules for determining whether there is a clear risk of a serious breach of EU values in a member state. The aim would be to separate clearly the "risk" and "violation" stages. To help prevent breaches of EU values in the long term, MEPs also call for the creation of a "Copenhagen Commission" of independent high-level experts on fundamental rights.

The rapporteur Louis Michel (ALDE, BE) stated that in all EU countries there are breaches of EU values, principles and legislation, and called for a stricter behavior of all Member States.

Sarah Ludford – rapporteur for the Commission – also mentioned that a clearer and transparent status of the European Arrest Warrant will make an invaluable contribution to the European Union’s Area of Freedom, Security and Justice, and stated that the report she presented is fully supported and assisted by all political groups that participated in the shadows’ meetings and European Added Value Unit with her valuable researchers.

Whereas the European Arrest Warrant is a critical tool in helping law enforcement authorities deal with cross-border crime and to ensure a safe, open and free Europe and has been useful in the cases of thousands of suspected and convicted criminals, varying criminal justice standards and practices have led to legitimate criticisms regarding it. So, the EAW needs to be improved and its proper functioning needs to be guaranteed and made as efficient as possible in order to ensure the due respect for the fundamental rights of suspects and accused persons.

The European Investigation Order (EIO) was brought to the attention of the Commission, an institution complementary to the European Arrest Warrant, which can also help the implementation of the EAWs. The role of EIO should be to check that the issuing authority has to consider whether the matter is really proportionate or not, based on all relevant factors and also to be aware of the human rights safeguard clause. Mrs. Ludford also suggested a new procedure of consultation, in which the courts in any two Member States can exchange information, ensuring that the EAW will not be misused and will fully serve its intended purpose of criminal prosecution.

Furthermore, in providing for the transfer of evidence rather than persons, the EIO should take some of the pressure off the EAW and confine the latter to its proper use.

In conclusion, the Commission was called upon to ensure within a year the following:

  • a proportionality check when issuing mutual recognition decisions, based on the seriousness of the crime, the stage of the tiral and the impact on the human rights of the persons and their private life;
  • a clearer and consistent application by all Member States of Union law regarding procedural rights in criminal proceedings linked to the use of the EAW;
  • a Commission's request from Member States of comprehensive data relating to the operation of the EAW mechanism;
  • a regular review of EAWs and the withdrawal of non-executed or refused ones;
  • correct procedures including appeal rights from Member States, as either an issuing or executing Member State, to provide for legal mechanisms to compensate damage arising from miscarriages of justice relating to the operation of mutual recognition instruments, in accordance with the standards laid down in the ECHR and in the well-established case-law of the ECJ;
  • a better cooperation between Member States and the Commission to cooperate in strengthening contact networks of judges, prosecutors and criminal defence lawyers to facilitate effective and well-informed EAW proceedings;
  • the setting up of a specific European Arrest Warrant Judicial Network and a network of defence lawyers working on European criminal justice and extradition matters;
  • an accessible Union database collecting all national case-law relating to EAW and other mutual recognition proceedings to facilitate the work of practitioners and the monitoring and assessment of implementation and any problems arising;
  • the recommendations respect fundamental rights, the principle of subsidiarity and the principle of proportionality;