The European arrest warrant - 4

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 will continue to examine the potential or otherwise of the EAW to run counter to existing human rights standards.

Another constitutional issue arises by virtue of Article 3d, which states that the grant of a judgment in absentia does not preclude the EAW's execution. However, where the decision which serves as a basis for the EAW has been give in absentia, the executing authority must record the person's opposition in accordance with the instructions in the EAW.

The person must be retried after lodging an opposition with the executing judicial authority. It seems quite absurd to retry a person after s/he has already been convicted in absentia. All this could seriously impinge on the need for a public hearing and the presumption of innocence of the accused.

In practice, in these types of cases, there must be a direct contact between the two judicial authorities, if necessary with the aid of the central authority, to ensure that the opposition is valid. The execution of the arrest warrant must proceed in such a way that the interested party can validly assert his rights to oppose it.

In practice, at the time of the notification of the opposition, the judicial authorities of the issuing state must notify the person of a date on which he must appear for trial. The execution of the warrant must be so organised as to allow the person to attend the trial and secure his rights.

The rights of persons against whom a warrant is issued and executed are however sufficiently protected. In fact, these persons enjoy the following minimum rights:

¤ legal assistance;

¤ an interpreter; and

¤ all other minimum guarantees stipulated in the European Convention on Human Rights and Fundamental Freedoms and the Charter of Fundamental Rights of the European Union

There is also provision for bail. In fact, where a person is arrested on the basis of an EAW, the judicial authority in the issuing member state will be under duty to rule on the question of his/her maintenance in custody on the basis of the assurances he/she gives as to his/her subsequent appearance in court.

If adequate assurances are given, a person arrested on the basis of an EAW may be released, conditionally, if appropriate, in the executing state, pending presentation to the issuing authority at the date that is appropriate for the current procedure.

To a large extent, the EAW could facilitate the grant of provisional liberty (bail) where it was previously rejected by courts on the basis of the danger of absconding; this because it is no more a major risk to the general administration of justice if an accused flees to another country, obviously provided that the country is within the EU and thus subject to the EAW.

Criminal proceedings are likely to be accelerated, particularly because of the increased temporary transfers from one state to another, which will contribute to enforcing litigants' rights to have judgment given within a reasonable time. Set within a 90-day limit, the procedure for the EAW should make an important contribution to respect for the reasonable time criterion.

Transfers that are neither useful nor necessary can be avoided by the use of videoconferencing, provided this procedure does not prejudice the possibility of cross-examination of witnesses within the ambit of adversarial proceedings.

Similarly, the execution of a penalty in the place where the condemned person can best be reintegrated should be encouraged.

It is important that the EAW is open to an appeal by a higher court to safeguard the importance of judicial review.

The minister must ensure that a conflict between an EAW and an extradition request from a third country be dealt with expeditiously and without prejudice to the third countries' demands, if these demands are justified under Maltese law. This is an example of a potential conflict between particular requests.

Further problems may arise as a result of the various obligations Malta has under international treaty law. Malta, in fact, has obligations under its own laws, including the Constitution, the Criminal Code and the Dangerous Drugs Ordinance, under bilateral treaties, multilateral treaties, the Council of Europe's European Convention on Human Rights, the EU's Charter of Fundamental Rights, the Statute of the International Criminal Court and under international conventions dealing with crimes under international law or transnational crimes, which do not fall under the jurisdiction of the International Criminal Court such as, for example, hostage taking and terrorism.

Most of these international conventions contain a common legal provision necessitating that a suspect should either be extradited or prosecuted (tried), the aut dedere aut judicare rule. All this can create a complex, intricate system of rights and obligations with differing interests of member states and international institutions, such as, for example, Eurojust and Interpol.

The EAW remains a concerted effort to harmonise criminal justice systems with different foundations, such as the common law system and the continental law system, not to mention systems emanating from states of the former Soviet Union. Its raison d'être is certainly praiseworthy.

Yet, only time will tell whether it will work effectively and fairly in practice or not. However, it is a major contribution to the fight against transnational organised crime. It can also serve to suppress crimes which are deliberately committed in other states to avoid punishment as, for example, in circumstances where Maltese nationals have abortions (which arguably could be classified as murders) done abroad.

Although it does address European citizens' concerns for the protection of individual rights, problems are likely to arise in connection with the protection of fundamental rights and freedoms.