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.