Brussels, 5 December 2001
the proposals for a Framework Decision on Combating Terrorism and for a Framework
Decision on the European Arrest Warrant and the Surrender Procedures between
the Member States
before
the Justice and Home Affairs Council 6-7 December 2001
Amnesty International notes that
the Justice and Home Affairs (JHA) Council meets on 6-7 December to discuss, inter
alia, proposals for an EU arrest warrant
and surrender procedures, and on combating ‘terrorism’.
Amnesty International appeals to
the JHA Council to ensure that any measures adopted to guarantee security are
in full compliance with international human rights law and standards, including
the Charter of Fundamental Rights of the European Union, so that security is
not achieved at the expense of the very rights it seeks to safeguard, and that
the principles on which the Union is founded are not compromised.
Amnesty International holds the view
that the proposal for a Framework Decision on an EU arrest warrant and
surrender procedures must be in
compliance with international law and standards, and in particular ensure that:
·
Crimes under international law (such
as genocide, war crimes, crimes against humanity, torture, extrajudicial
executions and “disappearances”) are covered by any measure to
facilitate the end of impunity, always in compliance with international human
rights law and standards.
·
The fight against impunity for crimes under
international law is not prevented in practice by amnesties and similar measures
of impunity that prevent determinations of guilt or innocence by courts and
establishment of the truth and satisfactory reparations to victims. Such
measures are contrary to international law and should not be recognised by any
state under any circumstances whatsoever.
·
The principle of ne bis in idem, does not
result in practice in impunity for crimes under international law. As the Human
Rights Committee and other bodies have made clear, it applies only within a
single jurisdiction, apart from the special case of international criminal
courts. The ability of a second state, acting as an agent of the international
community in enforcing international law, to conduct a second trial for the
same conduct when the first state conducted a sham trial, is an important tool
of international justice. In the absence of an international criminal court
with exclusive jurisdiction, the international framework of justice will
require this tool to ensure that states do not cloak those responsible for the
worst crimes in the world with immunity through sham trials.
·
The rights of the defence are guaranteed in all cases,
included in cases of subsequent surrenders or extradition, as well as
prosecution by other offences.
·
Express references
to international law and standards are included in the relevant provisions of
the text, including in cases where express reference is made to national
legislation, such as the right to liberty and the rights of the defence.
·
A non-refoulement clause is included in the body of the text, prohibiting Member States
from surrendering individuals to a country where they will be at risk of
suffering serious human rights violations, such as becoming prisoners of
conscience, being brought to justice in trials which do not uphold
internationally recognised rights of fair trial, the death penalty, torture or
other forms of cruel, inhuman or degrading treatment or punishment. Such an
express provision is necessary in light of the potential application of this framework
decision to states that may become Members of the EU in the future. Such
guarantees would be in line with the Charter of Fundamental Rights of the EU,
which states that “no one may be removed, expelled or extradited to a
State where there is a serious risk that he or she would be subjected to the
death penalty, torture or other inhuman or degrading treatment or punishment” (Article 19.2).
·
Provision is
made so that when surrender is not possible in application of the said
safeguards, crimes under international law (such as genocide, war crimes,
crimes against humanity, torture, extrajudicial executions and
“disappearances”) be referred to the relevant prosecution
authorities for the purposes of prosecution (consistent with international
human rights law and standards) or the individual should be surrended to
another State to be prosecuted (consistent with international human rights law
and standards).
·
Provision is made to guarantee the rights of
recognised refugees and of asylum seekers in surrender procedures.
Amnesty
International also holds
the view that the proposal for a Framework Decision on combating terrorism must
ensure that it meets international human rights standards. In
particular, the proposal should ensure that the behaviours listed as terrorist
offences are recognisably criminal offences and do not result in an
infringement of human rights, such as the rights of association, of peaceful
assembly and of freedom of expression.