European arrest warrant must be reformed

19 February 2011

European arrest warrant must be reformed

For those who should be extradited as quickly as possible, there must be guarantees that, in the country which has requested their handing over, conditions await them which meet our standards.

SP Member of Parliament Sharon Gesthuizen

n 2000 a European Union plan for the mutual surrender of suspects was presented as a way of making the process easier for European countries. The prelude to a European judicial area could be heralded by presenting ‘the principle of mutual recognition’ as the ‘cornerstone’ of such a system.

This is what it says, more or less, on the ‘Justice’ section of the European Commission’s website. Behind the words sounds the ideal of progress, like a trumpet from behind a mist-shrouded hill. Not only would the trial and punishment of anyone who had brought the scourge of criminality to one of the member states be rendered more straightforward, but also the fact that the European nations had showed faith in each other’s legal systems was once again confirmation of the happy trust which each could find in the arms of the other.

This all probably sounds rather cynical, but anyone who looks at the reality of the European Arrest Warrant (EAW) can come to no other conclusion than that the prospects were painted at the time in a rather optimistic light. On the website of King’s College London, for example, you can learn that in Slovenia the prisons are overpopulated to the tune of 124%, while in Italy things are a little worse at 153%. Hungary comes in at 127% and Bulgaria 155%.

Organisations such as Amnesty International and the Committee for the Prevention of Torture regularly point to the poor conditions under which people are detained in certain countries, partly because corruption in many of the new EU member states remains a major problem and detainees inevitably have to deal with this. But there are also, according to letters sent by advocacy groups to the European Commission and the Dutch government, widespread concerns over the judicial process. Often, no interpreter is available for the suspect, something which is a big problem for a Dutch-speaker in Poland, for instance. Or the suspect is for a long time, sometimes until judgment is passed, not informed as to the nature of the charges. Or people are forced to remain on remand for an excessively long period. Not for nothing is there a case pending before the European Court of Human Rights under which the lawyer Gert Jan Knoops is seeking to show on behalf of one of his clients that extradition to Poland would represent a serious breach of the European Convention on Human Rights.

The fixing of penalties for criminal offences in European countries is a matter which most national parliaments see as something for which they, and they alone, must have responsibility. Extradition of suspects, however, exposes inhabitants of these countries to penalties which, by the standards of their own national authorities, are disproportional. Against this it might be argued that a crime committed in a country where one is a foreigner can be punished in keeping with the sanctions prevailing there. There is, however, at the same time another aspect which must be taken into account.

Since the Dutch judiciary‘s extradition experts in Amsterdam are to be allowed only a very limited look at the contents of an arrest warrant to be issued by an EU member state, other European courts will become in effect our own courts. And other prisons within the European Union will become in effect our own prisons. Dutch people will no longer be judged by a Dutch Dame Justice, but blindly handed over by our judges to third parties. Moreover, many requests for extradition emanate from Poland, where the Justice Ministry does not enjoy discretionary powers and is therefore obliged to follow everything up. The ‘theft’ of an item for which the supplier received no payment and which he therefore took back is a well known example.

The idealism that lies at the base of the European Arrest Warrant has turned out for many extradited Dutch citizens to be a Hell on Earth. For example, people have returned from Poland damaged, sick and infected after a long time in prison for relatively mild or questionable offences. The same can be said of Bulgaria, Hungary and Romania, where conditions of detention are just as abominable. This has even been acknowledged by the European Commission. In a letter written last November, European Commissioner for Justice Viviane Reding, who is also a Vice-President of the Commission, states that "there is considerable room for improvement in the operation of the EAW system" and speaks of “wretched conditions in many prisons within the Union” and of the need for improvements. The Commission intends in 2011 in response to this to publish a plan to tackle these problems, she said.

At the same time a fifth evaluation of the EAW is expected in April. In the meantime it would be wise of the Dutch government to lend an ear to the system’s critics and think again about extradition to countries, for which read systems of justice, regarding which there have been many complaints. That ought then to mean that that no effort would be made to track down suspects whom we would be obliged to hand over, provided they were not suspected of serious criminal acts. But also for those for whom the nature of the offence means that they should be handed over as soon as possible, conditions in the country making the request should be acceptable according to our own standards. As long as that is not the case, Justice minister Ivo Opstelten should take a firm line with his European colleagues, letting them know what we find acceptable and what we do not, and asking them how we are going to resolve this?

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