The European arrest warrant - 3

After a brief introduction dealing with the causes, scope and objectives of the European arrest warrant (EAW), and an analysis of some important substantive provisions of the Framework Decision establishing the EAW, today we shall start to examine the potential or otherwise of the EAW to run counter to existing human rights standards.

In our last article, an exhaustive list of 32 crimes subject to the EAW was provided. A major shortcoming of the Framework Decision however is that the constitutive elements of these crimes are not explicitly outlined. This seems to oppose general principles of law as established by the European Court of Justice, the EU's court, namely the concept of legal certainty and legitimate expectations. It is more pertinent to note that the following crimes subject to the EAW are even not crimes under Maltese law:

¤ illicit trafficking in hormonal substances and other growth promoters;

¤ environmental crimes including the illicit trafficking in endangered animal species and in endangered plant species and varieties;

¤ illicit trade in human organs and tissues; and

¤ illicit trafficking in cultural goods including antiques and works of art.

A EAW must still be issued if the offence for which the arrest warrant was issued does not exist under our laws or if its core elements and components differ from those in the executing state.

Under Article 27 of the Framework Decision, however, each member state may draw up a list of forms of conduct for which it declares in advance it will refuse to execute the EAW. This is called the 'negative list system'. This list may include forms of conduct that do not constitute offences in the member state but which are offences in other member states. Offences which have been decriminalised throughout Europe over the years, such as abortion, drug use and euthanasia, are typical of what might be on this list.

There is no explanation as to whether the prohibition of double jeopardy reaffirmed by Article 50 of the Charter of Fundamental Rights of the European Union, refers to the prohibition of trying someone for having committed the same fact or the same offence. The ne bis in idem rule, however, is one of the grounds of refusal of the EAW which features in an exhaustive list.

Another one relates to the grant of an amnesty. This is a direct action by the legislature in the executing state, but the expiry of the limitation period is no more than the consequence of failure to prosecute. It can also be involuntary in the following ways:

¤ either if the competent authorities in that state are unaware that an offence has been committed;

¤ or that investigations have not enabled the offender to be identified.

Article 31, modelled on the treaty between Italy and Spain, refers to immunity, or rather, a situation whereby the execution of a EAW is refused when the person against whom it is issued enjoys immunity in the executing state.

Article 5 of the Framework Decision states that the decision whether or not to recognise a person's immunity is entrusted to the central authorities. This arguably violates the sacrosanct principle of the rule of law epitomised by the concept of equality before the law, a notion so essential to every judicial system functioning within the context of a democracy.

Prima facie, it also runs counter to the Preamble of the European Convention on Human Rights and Fundamental Freedoms and its first article dealing with the states' positive obligations. Furthermore such immunities provide fertile ground for abuse of the system on the basis of political and diplomatic considerations.

Another situation where rights of victims, as opposed to rights of accused persons, can be endangered is the possibility for a state to make the execution of a EAW conditional on a guarantee that life imprisonment will not be imposed.

Whereas before such guarantee covered the death penalty and the danger of being subjected to torture, inhuman or degrading treatment or punishment, through the Framework Decision this has been extended to the case of life imprisonment. To this extent, such provisions unfairly favour accused persons to the detriment of the rights of victims of crimes.

Since the EAW does not only refer to the pre-trial stage of proceedings, but also and particularly after conviction, a problem is likely to arise with relation to the computation of the court sentence of the convicted criminal. This is primarily because states have different rules dealing with, for example, the period of remission of the convicted person.

The requirement of a fair trial before an impartial and independent court or tribunal may suffer a blow as a result of the definition and classification of the important term "judicial authority". This authority is entrusted, by virtue of Article 3 of the Framework Decision, to issue the EAW. However, the "issuing judicial authority" means the judge or the public prosecutor of a member state. In Malta's case this would be any court of competent criminal jurisdiction in Malta and the Attorney-General.

This implies that the public prosecutor will have the faculty to exercise a dual function within the criminal justice system, namely an investigative one and a quasi-judicial one. This state of affairs has been disapproved of by the European Court of Human Rights to such an extent that certain states within continental Europe have had to amend their criminal justice system to ensure compliance with the judgments of the European Court on Human Rights.

Italy, for example, had abolished the giudice istruttore who assumed this dual role, and introduced the giudice per le indagini preliminari. This led to controversy in Italy as to the validity of the EAW and its compatibility with contemporary Italian Constitutional Law. In fact Italy was one of the major opponents of the EAW.

(To be continued)