Negotiating a new extradition process post-Brexit: lessons to be learned from the European Arrest Warrant experience

9 April 2019

In April 2016, the international criminal justice NGO Fair Trials, launched their EU-wide ‘Beyond Surrender’ project which set out to examine the effect the use of the European Arrest Warrant (‘EAW’) has on the life of those who are extradited and their families. The focus was on the human stories surrounding those who have been the subject of an EAW and the real impact it has had on their lives.

The outcome of the research was published in a report in June 2018, alongside a poignant documentary of testimonials from individuals who have experienced an abusive EAW.

It is to be hoped that those currently negotiating a new UK-EU extradition process will have Fair Trials’ report to hand. It is a useful reminder that although an expeditious extradition process is crucial for fighting serious cross-border crime, it should not come at the cost of violating suspects’ most basic human rights.

What is the EAW and how does it work?

The Framework Decision 2002 on the European Arrest Warrant officially came into force on 1 January 2004 and has been adopted by all Member States of the European Union. With regard to the UK, the provisions were transposed into national legislation with Part 1 of the Extradition Act 2003.

The EAW is based on the principle of mutual recognition, which requires decisions taken by the judiciary in one Member State of the EU to request from their judicial counterpart in another Member State the surrender of an individual for criminal offences. The purpose of the mechanism is to promote effective cooperation in the cross-border prosecution of crime and to counter any opportunities to evade justice that the free movement of persons may provide for criminals.

What does Fair Trials’ ‘Beyond Surrender’ report say?

The project found that there are several flaws in the way the EAW is being used in practice, with numerous reports of cases of it being used disproportionately and with little to no regard to the human rights of those subjected to it.

The report had three key findings:

1. The EAW continues to be overused and is destroying the lives of ordinary people in the process

The research found that the EAW is being used frequently for minor offences or for offences which are not recognised under the law of the requesting state. It found that the concept of proportionality is not being applied correctly. For example, research collected from Poland showed that EAWs were being issued in an array of situations such as drink driving or petty theft with no regard to the impact surrender will have on the person’s livelihood, family or health.

Fair Trials also found that there were numerous instances of individuals being needlessly separated from their families as a result of an EAW. Analysis of whether the EAW is proportionate should occur in the requesting state, however it was found that suspects are rarely given the opportunity to effectively challenge these decisions.

2. The EAW is used without sufficient regard to the most basic human rights

The report states that the EAW Framework Decision does not contain robust human rights safeguards. The report focuses on the right to be free from torture, right to liberty and right to a fair trial.

The research found there were ‘systemic violations’ of the right to be free from torture, cruel or inhumane treatment for those subject to an EAW throughout the EU. Prison conditions in various member states, including Romania, Lithuania and Poland, have been found to violate the right not to be subject to inhumane treatment by the ECHR and the Council of Europe’s Committee for the Prevention of Torture. Individuals were still being extradited to these countries without adequate assurances they will not be subject to ill treatment.  

The research also showed that people were being surrendered under EAWs despite it being clear that they will spend lengthy periods in unlawful pre-trial detention. On many occasions this happens as a result of a requesting state issuing an EAW to investigate a person, as opposed to bringing them to trial.  

Positively, the report found that respect for the right to a fair trial had improved significantly since their last report in 2011 on the EAW. However, there were still numerous instances reported of inadequate procedural safeguards being in place and in particular, the lack of protection for the rights of vulnerable suspects.

3. Insufficient evidence is disclosed on post-surrender treatment

In the joint cases of Aranyosi and Căldăraru, as discussed in our blog Mutual Recognition, Mutual Trust? Detention conditions and deferring an EAW, the CJEU ruled that countries receiving an EAW must defer extradition until the issuing state has provided sufficient information to assure it that there is no risk of ill treatment to the individual. Fair Trials found that where additional information was provided from the issuing member state, this was not enough to provide a sufficient safeguard against ill treatment as the information is often incorrect or ill-informed.

Conclusion

The focus of discussions on the UK’s post-Brexit extradition arrangements with the EU-27 currently revolve around the UK’s operational capacity to extradite, not on how the UK will ensure the protection of the human rights of those involved. Although the UK will no doubt have to take a pragmatic approach when negotiating any future extradition agreement, one point we must be unwavering on is ensuring there are adequate safeguards for all defendants’ human rights.

The shortcomings identified in the current EAW system should inform the route which the UK plans to take post Brexit. The negotiators should take this opportunity to embed robust human rights protections in any new agreement it makes with the EU, ensuring that the protections which exist in UK domestic extradition law, such as the ground to refuse on the basis of proportionality, are incorporated into any new agreement.

About the authors

Rebecca Niblock is a Partner in the Criminal Litigation teamRebecca specialises in cases involving cross-jurisdictional elements. She has successfully defended many persons requested by other states, both inside and outside the EU in extradition proceedings at all levels. She has experience in advising in sanctions cases, and in providing advice to those subject to Interpol red notices and mutual legal assistance requests.

Maeve Keenan is an Associate in our Criminal Litigation team.  Prior to joining Kingsley Napley, she worked in Brussels for the NGO Fair Trials International.

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