Justice is more of a home affair

A European Commission assessment of how member states have implemented the European arrest warrant has been criticised for not taking into account the "balance between security and justice".

Wouter van Ballegooij of the TMC Asser Instituut in the Netherlands, which runs a research project on the arrest warrant, said that while the Commission had focused on how member states have failed to implement the arrest warrant legislation, it was important to allow judges the room to examine cases more closely if they felt there was a need.

"A judge is not a machine. He needs to perform his job by balancing the issues in front of him," said van Ballegooij.

Agreed in 2002, the arrest warrant cuts the time taken to execute the transfer of a suspect between countries by setting deadlines. It also makes things much simpler - the current form involves ticking boxes.

While the Commission’s overall assessment is that "the arrest warrant is a success" - in 2005 almost 6,900 warrants were issued with more than 1,770 cases executed - the report highlights "shortcomings".

The rules underpinning the European arrest warrant list 32 serious crimes under which the principle of ‘double criminality’ is abolished. That means European arrest warrants issued in respect of crimes or alleged crimes on this list have to be executed by the arresting state irrespective of whether or not the definition of the offence is the same, providing that the offence is serious enough and punished by at least three years’ imprisonment in the member state that has issued the warrant.

But Italy, Belgium, Slovenia, Poland and the UK, either partially or wholly, continue to check the list of 32 offences to ensure that they correspond to an offence in their own countries. Belgian legislation in particular states that abortion and euthanasia are not considered "murder or grievous bodily harm".

The Commission also criticises member states which have written into their domestic laws grounds for refusing to transfer suspects. On this point many states are in the dock.

Italian law refuses transfer if the victim has given his or her consent to the act, if the suspect is pregnant or is the mother of a child under the age of three or if the suspect is Italian and did not know the conduct was prohibited and if the offence is political.

Denmark refuses transfer on the grounds of a possible threat that the suspect might be tortured while Lithuania and Poland refuse transfers if they could lead to a breach of fundamental rights. A Dutch judge can refuse to surrender a suspect if there is evidence that the person is innocent. Portugal’s laws amount to a refusal if the offence is political while the UK can refuse a surrender if the suspect was acting in the interests of the national security of the UK.

The Commission highlights the UK and Ireland for asking "systematically for additional information or even to insist on the arrest warrant being re-issued". This has led to both countries exceeding time limits set down by the European arrest warrant, "something the Commission very much regrets".

What irks the Commission is that member states are supposed to trust each others’ judicial and penal systems and that checking the definition of a crime, refusing an arrest warrant on additional grounds and asking for more information flies in the face of such trust.

But van Ballegooij said that it was the right and responsibility of judges to check, and if necessary to refuse, an arrest warrant request if they are not satisfied. "I have always felt mutual trust was a difficult concept. You can have genuine trust but if you have consistent indicators that something might be wrong then you should investigate them," he said.

While the Commission is keen to see the mutual trust principle upheld, member states seem reluctant. This was clearly visible earlier this year as they failed to reach agreement on a minimum set of rights for suspects.

While the Commission can at present only highlight where member states are stepping outside the scope of the legislation, in future, when the revised treaty comes into effect it will be able to take states to the European Court of Justice. Van Ballegooij said that this could see EU law and national law coming into conflict, with member states’ judges perhaps forced to rule that their legislation takes precedent because of a breach of fundamental rights. There have already been a number of national court challenges to the arrest warrant and a recent case before the European Court of Justice upheld the principle of double criminality. But experts believe other court challenges will be made.

Double criminality glosses over the cultural differences that divide EU member states, said van Ballegooij. "There are differences in criminality and there are differences in culture. In the Netherlands there are differences on criminality on euthanasia, abortion and drugs and these problems are going to come up," he said.

Van Ballegooij added that EU states were perhaps realising the dangers of abandoning these important cultural divides by reintroducing double criminality on a recent piece of legislation on the transfer of prison sentences.

He insisted that the Commission should take these considerations on board rather than focusing on member states’ failings. "I would like to see a broader perspective on how things balance between security and justice," he said.

Van Ballegooij said he feared the impact that the Commission’s report could have on judges: "If a judge sees this report and decides, ‘I just have to trust this, my hands are tied’, then that’s a serious consequence. The Commission is sending the wrong message."

The Søren Kam case

The German and Danish authorities have been at loggerheads for years over the case of Søren Kam (pictured), an 85-year-old former Danish Nazi officer living in Germany who is alleged to have been involved in the murder of newspaper editor Carl Henrik Clemmensen in Copenhagen, during the Second World War. In 1946 Flemming Helweg-Larsen, a colleague of Kam, was tried and executed for his part in the killing, but evidence has shown that three guns were used in the shooting. While a third suspect remains at large, Danish authorities tracked Kam down and in 1999 requested extradition. After a number of refusals by the German authorities, the Danish police issued a European arrest warrant last September after which he was detained in Kempten, Bavaria. But last February a court in Munich ruled that the killing was manslaughter not murder and therefore came under the statue of limitations, meaning too much time has lapsed to try him for such a crime.

Irish and Czech mistrust

In August 2006, the Czech Justice Minister Pavel Nemec wrote to his Irish counterpart, Michael McDowell, warning that "trust of Czech authorities in Irish authorities…[is] being impaired". The diplomatic attack related to a decision by the Irish authorities to turn down a request for the extradition of Tomáš Puta and Maroš Šulej to the Czech Republic, where the two are wanted in connection with the activities of an organised crime gang. They are accused of a number of armed robberies and in the case of Puta kidnapping and murder. "Because of the seriousness of the offences...great importance is attached to this case, even as regards future relations between the Czech Republic and Ireland," Nemec wrote. But the Irish authorities said that their hands were tied. The Czech law on the arrest warrant did not cover crimes before 2004 and the authorities had therefore issued an international arrest warrant, which in Irish law no longer exists for European cases. The Czech Republic has since revised its law and issued European arrest warrants for the two men. They were detained in Dublin in August last year with a court ruling in April that they could be surrendered. As both men have appealed against the decision they have yet to be sent to the Czech Republic.

A European Commission assessment of how member states have implemented the European arrest warrant has been criticised for not taking into account the "balance between security and justice".