(EU) EU/JHA COUNCIL: Presidency compromise on arrest warrant and terrorism

Brussels, 15/11/2001 (Agence Europe) - Since our first presentation of the Justice and Home Affairs Council held on Friday in Brussels (EUROPE of 10 November), the Presidency has specified its proposals of compromise, without any of the positions first expressed having changed.

European arrest warrant: The Presidency made several changes to the list of infringements for which the European warrant would replace extradition without the State to which the warrant is addressed being able to refuse implementation if the act in question does not constitute infringement according to its national legislation. The list now comprises 28 infringements: terrorism, participation in organised crime, drugs trafficking, kidnapping, fraud, racism, trafficking of stolen vehicles, rape, and so on. For the remainder, the principles of the proposal remain unchanged. Discussions will also cover the application of this arrest warrant to nationals of the country to which the warrant is addressed. Austria and Greece have difficulties regarding constitutional order, and Italy has expressed scrutiny reservation.

Incrimination of terrorism: The Presidency specified its definition of terrorism, in response to criticism stressing that it could encompass the activities of anti-globalisation groups. Positions differ also about the definition of the powers that any State has to judge terrorist activities.

A policy debate on possible revision of the method for harmonising sanctions: A majority of States agree with the method followed to date - providing a penalty for all infringements that could give rise to extradition, and for more serious infringements providing for the maximum penalty not to be less than a given level (minimum maximum penalty). Several countries, however, essentially Germany, Austria and Denmark, continue to express opposition to this system. The last two countries have proposed that it would be preferable for harmonisation to be carried out through the choice of a category between three levels of penalties (penalty giving rise to extradition, long sentences, very long sentences), with each Member State being free to state what they see as a long or very long sentence. The first system has the advantage of allowing good harmonisation and the disadvantage of posing problems of consistency within national penalty levels. The second would facilitate decision-making but would not allow very wide-spread harmonisation. For a first debate on the method of harmonisation, the Presidency proposes a combination: making the debate cover the categories, as Austria proposes, but these categories would fix a maximum/minimum scale (at least 1-4 years, then 4-8 years … for the maximum penalty). It remains to be seen whether the introduction of a little flexibility in the current system would convince countries opposed to the idea of minimum maximum.

(EU) EU/JHA COUNCIL: Tricky negotiations over the European arrest warrant - Agreement on idea of listing crimes

Brussels, 16/11/2001 (Agence Europe) - The Justice Council seemed to have made unexpected progress on Friday on the European arrest warrant by agreeing on its scope of application - a list of 30 crimes. This news was given by the French and German Ministers, although the negotiations were still going ahead as we went to press. Several Ministers (including the Italian and the Irish) are reported to have changed their views and called for a more limited list. Agreement over a list, however, would not amount to very much in the absence of agreement on how the warrant would actually work. Following what appeared to be agreement over the list, the Ministers appeared to agree on moving from political to legal control, but no agreement had been struck as we went to press on how this process would pan out - it will replace extradition for a number of crimes - and it did not look likely that an agreement would be forthcoming. Will people be handed over without checking about double incrimination? Where will the threshold be placed? The Commission's original proposal, then the Presidency's compromise, suggested that the threshold be the same as for extradition - crimes for which a minimum of four months in prison would apply and crimes subject to a year in prison in the case of preventative arrest.

A proposal from Luxembourg would reduce the scope of the European arrest warrant. The Grand Duchy proposes that the warrant should be applied without checking double incrimination for sentences of at least four months, but, where there is no sentence, it calls for the threshold to be four years. Below this threshold, the State to which the warrant is addressed may refuse to carry it out if the offence in question is not sanctioned in this country. Acceptance of this principle is reportedly making headway among the delegations. European sources point out that even the Presidency has taken it on board although attenuating it somewhat: the threshold would be three years for infringements harmonised at European level. Nonetheless, the debate is far from over. France, Spain, the United Kingdom and the European Commission are firmly opposed to the project, said French Justice Minister Marylise Lebranchu. This threshold would not allow networks to be dismantled because judges could not have access to those who have committed less serious crimes, although it is essential to be able to question them for dismantling the network, protests the French minister. "This would still be better than nothing", she added, however. It is expected to be a very tight debate at the Council on 6 and 7 December, and the prospect of an additional session on the fringe of the Laeken Summit has not been dismissed, all the more as other issues remain to be settled. These issues include that of knowing what should be done if the person who is the subject of the arrest warrant has not been transferred at the end of the required time, which will probably be 90 days. According to the French minister, there would be a move towards a flexible solution, whereby the country where the person is located could decide, according to the law and gravity of the crime, whether that person must remain in prison or may be released under judiciary surveillance. There is said to be no agreement, and rather opposition, to the Spanish proposal, taken up by the Presidency, of, before the warrant is over, allowing for a temporary transfer or displacement of judges from the requesting country to the country where the person is located. On the extradition of nationals, Greece, which has a constitutional problem, "is demonstrating a genuine will to find a solution", Presidency sources note. Austria has the same problem, Italy maintains a reservation to examine the situation.

Before lunch, the agreement over the list was still far from having been secured. Ireland, notably, did not want fraud or xenophobia, and several countries wanted a more precise definition of the acts included on the list (Germany, Denmark, Finland, Austria, according to certain diplomats). The United Kingdom, France, Spain and Portugal, on the other hand, wanted to go beyond this list, stressing having "already made sufficient efforts" (Spain) by agreeing to the principle of a positive list instead of a general application of the warrant, which would have been dropped from the negative list of infringements.

Framework agreement on the fight against terrorism: According to Ms. Lebranchu, in the middle of the afternoon, there was progress towards an agreement on the definition of terrorism. Remained to define the "recital" intended to establish a safeguard for the document not to be able to affect demonstrators or trade union movements. Sweden placed special emphasis on this issue. The problem of the definition of the minimum threshold of sanctions for the most serious crimes is said to remain on the table: however, Germany would have agreed, but with thresholds of 5 and 15 years, whereas the Presidency is proposing 8 and 20 years.

On 13 November, 70 lawyers, magistrates and professors of law from the European Union signed an appeal against the proposal of a framework-agreement against terrorism, qualified as "libertycide project". This text "would add no added value to the legal arsenal that enables us to combat terrorism, as the legislation of Member States of the Union allows participation in this type of attack in any form to be sanctioned by the severest of penalties", write the petitioners. "The unified definition proposed by the Commission, on the other hand, is so broad that it would allow for any type of social struggle to be criminalised and qualified as terrorist", say these professionals in law, calling for "democratic rights not to become collateral damage of the war against terrorism".

In our next edition, we shall return to the discussions on the assessment of Tampere and the alignment of sentences, as well as the Presidency's comments.