(2004/C 70 E/044)

WRITTEN QUESTION E-1392/03

by Charles Tannock (PPE-DE) and Timothy Kirkhope (PPE-DE) to the Council

(15 April 2003)

Subject:   Implications of the creation of the offence of Racism and Xenophobia in the context of the European Arrest Warrant

The principle of double-criminality was abolished for thirty-two offences covered by the European Arrest Warrant including Racism and Xenophobia.

During recent debates in the UK Parliament it has been suggested by the British government that under the terms of the agreement reached in the Council of Ministers it will not be possible for a person who has committed a racist or xenophobic offence to be surrendered by one Member State to another if the offence was not committed in the requesting state. Thus, a Belgian or French magistrate would not have the power to request surrender of a British national for an offence committed in Britain which was not committed in Belgium or France. Does the Council accept this as an accurate representation of the legal position reached by the Council?

The Council has also agreed to special measures designed to protect the freedom of the press. What is the exact form of this protection and will it lead to differential standards of protection of freedom of expression as between ordinary citizens and journalists?

Finally, Article 10 of the European Convention of Human Rights reads as follows:

Are the offences of racism and xenophobia confined to actions or statements which involve incitement to violence or the threat of violence or intimidation against the person or which threaten public safety and, if not, how are the proposals consistent with the European Convention on Human Rights?

Reply

(8 December 2003)

The European Arrest Warrant (1) was adopted by the Council on 13 June 2002. It institutes a system which, in principle from 1 January 2004, abolishes the lengthy and complicated extradition system which until now has prevailed within the European Union on the basis of a Council of Europe Convention adopted in 1957.

The European Arrest Warrant makes it possible, under the conditions of the Framework Decision, to surrender persons for purposes of conducting a criminal prosecution or executing a custodial sentence or a detention order. That Decision lays down the time limits and procedures for the decision to execute the European arrest warrant (Article 17) and the time limits for surrender of the person (Article 23).

The Council believes that the introduction of a new simplified system for surrender of convicted or suspected persons for the purpose of the execution of sentences or criminal prosecution is in the interests of the administration of justice since:

The Council believes that the old extradition system did not sufficiently translate the Treaty objective of the creation of an Area of Freedom, Security and Justice and that it had to be replaced by a modern system which would also more appropriately safeguard the interests of the offender.

In order to achieve this objective, the Council has, inter alia, decided to abolish double criminality for thirty-two categories of offences, among which figure racism and xenophobia (see Article 2(2) of the Framework Decision). It is the law of the issuing Member State that defines the constituent elements of the act. For instance, if a European Arrest Warrant has been issued in France, it is French law that determines the offence.

However, in order to safeguard the interests of justice and those of the executing Member State, a number of mandatory or optional grounds for refusals (more than ten) have been included in the Framework Decision. One such ground for refusal would be when the European Arrest Warrant relates to an offence which is regarded by the law of the executing Member State as having been committed in whole or in part in the territory of that State or in a place treated as such (see Article 4(7)(a) of the Framework Decision).

For instance, in the example given by the Honourable Member, if a judge in one Member State issues an arrest warrant for an offence that has been committed in another Member State, the latter could refuse to execute such a warrant. Similarly, it could refuse to execute an arrest warrant if the offence has taken place outside the territory of the Member State which issued the arrest warrrant and if its national law does not allow prosecution for the same offence when committed outside its territory (see Article 4(7)(b)).

For the application of these provisions, the issue of nationality does not come into play, but the Framework Decision contains other provisions as regards safeguards for the nationality of offenders.

The Council would also draw the attention of the Honourable Members to Article 1(3) of the Framework Decision, from which it expressly follows that the Framework Decision shall not have the effect of modifying the obligation to respect fundamental rights and fundamental legal principles as enshrined in Article 6 of the Treaty on European Union. This follows already from the Treaty itself, so legally speaking it would not have been necessary to include such language in the Framework Decision, but the Council found it appropriate to do so in relation to this Framework Decision.

The Council would also draw attention to recital 12, which further reinforces the point just made. Moreover, all Member States are parties to the European Convention of Human Rights and are bound by its provisions.

The Council (JHA) has examined the draft Framework Decision on combating racism and xenophobia, most recently at its meeting on 27/28 February 2003. The draft was at that time subject to a number of reservations by different delegations. Despite further discussions on the draft held subsequently in the Article 36 Committee, it has not yet been possible to reach a compromise on the text. Questions outstanding include in particular the exact definition of the offences of racism and xenophobia and possible limitations of the scope of criminal liability for these offences, including limitations related to the freedom of the press.

(1)  OJ L 190, 18.7.2002, p. 1.