I move: "That the Bill be now read a Second Time."
I am pleased to present to the House the European Arrest Warrant Bill 2003. The Bill gives effect to the provisions of the framework decision on the European arrest warrant and will, when enacted, replace, as and from 1 January 2004, the existing arrangements between Ireland and other member states of the European Union.
Before I come to the provisions of the Bill, it is appropriate to look at the background to the adoption of the framework decision on the European arrest warrant, a copy of which is attached to the Schedule to the Bill.
One of the key objectives of the European Union is the creation of an area of freedom, security and justice. The European Union is built on democratic principles and the rule of law. It is characterised by the free movement of persons, capital, goods and services. The citizens of the member states have benefited enormously from the opportunities created and from the removal of the barriers to the movement of people and services. However, these same freedoms and opportunities need protection from those who would abuse them in order to evade justice. The reforms introduced by the Treaty of Amsterdam and the additional impetus given by the 1999 Tampere European Council highlighted the importance of developing within the justice and home affairs area measures that protect the Union and member states against such violations. The framework decision on the European arrest warrant owes its origins in particular to the Tampere European Council. The Council endorsed the principle of mutual recognition which, in its view, should become the cornerstone of judicial co-operation in both civil and criminal matters within the Union. I stress this because the alternative strategy was uniformity and harmonisation right across the board. A strategic decision was made at Tampere in favour of the principle of mutual recognition.
It also recognised the need for extradition arrangements that would support and reflect the shared values of the member states and protect their citizens from the scourge of cross-border crime. The framework decision is, therefore, a practical expression of the desire of member states to improve the efficiency and effectiveness of extradition arrangements in a way that reflects the unique relationships that form the basis of the Union. While it follows earlier initiatives, in particular the 1995 and 1996 EU conventions on extradition, it is, as we will see, more radical and far-reaching in its approach.
As mentioned earlier, the framework decision on the European arrest warrant will replace the existing extradition arrangements among member states of the EU. The existing arrangements are, in the majority of cases, based on the Council of Europe's 1957 European Convention on Extradition. Although all the member states are parties to the 1957 convention, the extradition arrangements in place reflect certain variations based on historical and other factors. Such variations can be found in the arrangements in place in the case of the Nordic and Benelux states as well as between Ireland and the United Kingdom.
I will outline some of the main characteristics of the framework decision and the way in which it differs from the existing arrangements. However, as an overall comment on the framework decision, it is important to bear in mind at all times that it represents a careful balance between, on the one hand, the need for a more efficient system of extradition and surrender of persons who have been convicted or who are being sought for prosecution and, on the other, the provision of safeguards to protect the rights of the individuals concerned. With that in mind, I will first highlight the major new features and then the safeguards that will apply.
Historically, extradition has been regarded as an aspect of a state's exercise of its sovereignty. As a result, extradition arrangements entailed a significant role for the executive arm of the state in question. The framework decision replaces in large measure the interstate aspects of extradition by a system of surrender based on recognition by the judicial authorities of one member state of orders issued by the judicial authorities in another member state for the arrest and surrender of wanted persons. In future, the role of the executive agencies of the state will be to provide administrative and technical support for this intercourt system. This will be done through the central authority in the state. In Ireland, the central authority will be the Minister for Justice, Equality and Law Reform and his or her Department. Therefore, the new system can, to a significant extent, be described as an intercourt system.
The current extradition arrangements have been regularly criticised for being slow, often taking several years to complete. The framework decision addresses these concerns by the introduction of timeframes for the taking of decisions on European arrest warrants. It is proposed that a decision on whether or not to surrender a person should normally be taken within 60 days of the person's arrest, or within a further 30 days where the initial period cannot be met. These timeframes are reflected in the present Bill. However, I stress that they are timeframes, not time limits. By this I mean they are indicative rather than prescriptive. This is the case because, under the doctrine of separation of powers that applies, for instance, in Ireland, it would be inappropriate for the Executive or the Oireachtas to seek to limit the exercise of judicial discretion through the imposition of strict time limits when dealing with cases before the courts.
Traditionally, many states refused to extradite their own nationals and considered certain offences as being non-extraditable. The framework decision does not provide for exceptions based on, for example, categories of either offences or offenders. Therefore, there are no provisions permitting refusal to surrender on the grounds that the person being sought is a national of the executing member state or that the offence falls into a particular category of offences, such as revenue or political offences. This is a reasonable approach when we recall that we are dealing in this context with close allies who share our democratic values and respect for the rule of law. Ireland never had difficulty in principle with the extradition of our nationals, provided only that the arrangements were reciprocal. We have over many years greatly curtailed the political offence exception and we changed our law in 2001 to permit extradition for revenue offences.
The last, but by no means the least, of the major changes I want to highlight relates to the dual criminality requirement. This is the requirement which provides that a person may be extradited to face prosecution or service of a sentence in another state only where the offences concerned are offences under the laws of both the issuing and executing states. The framework decision introduces a significant curtailment of this requirement. Under the arrangements now being introduced by the framework decision and by this Bill, surrender may be sought for offences carrying a penalty of 12 months imprisonment or more, provided the alleged offence corresponds to an offence under the law of the executing member state. In other words, the dual criminality requirement still generally applies. However, the framework decision also provides that where the alleged offence comes within any of the 32 categories of major offences listed in Article 2.2 of the framework decision, and it is an offence that carries a penalty of three years imprisonment or more under the law of the issuing member state, the position under the law of the executing member state does not arise for consideration by the executing court. In other words, the dual criminality requirement is dropped in such cases.
This element of the framework decision presented some difficulty for several member states, including Ireland. It represents a significant departure from current law and practice. However, on examination of the list of offences in Article 2.2 – it is generally referred to as the "positive list"– one will find that, leaving aside the way they are described, all of them are already regarded as serious offences under Irish law. Therefore, since they are already serious offences under our law, dropping the dual criminality requirement in these cases is not as critical as might appear at first glance. While the exact description of one of these cases may not be the same in France as in Ireland, the substance of the offence and the categories set out in the positive list are offences in Irish law. This does not cause us any major problem.
I would like at this stage to draw the attention of Deputies to the safeguards in the Bill. These are designed to protect the rights of the arrested person. Most of them are to be found in the framework decision itself and are repeated in the Bill. I will also be drawing attention to the additional safeguards arising from the statement made by Ireland when the framework decision was being adopted.
Dealing first with the provisions of the framework decision, it sets out general principles on which the safeguard provisions are based. In addition, it contains specific provisions that list mandatory and discretionary grounds upon which requests for surrender can be refused. It also lists guarantees that may be sought before a person is handed over.
On the general principles, recital 12 affirms that the framework decision respects the fundamental rights and observes the principles recognised by Article 6 of the Treaty of the European Union.
Article 6 states, inter alia:“the Union shall respect fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms”, the ECHR. Article 1.3 of the framework decision also refers to article 6 of the Treaty on European Union and provides: “the Framework Decision shall not have the effect of modifying the obligations to respect fundamental rights and fundamental legal principles as enshrined in Article 6 of the Treaty on European Union”.
Recital 12 goes on to state: "nothing in this Framework Decision may be interpreted as prohibiting refusal to surrender a person for whom a European arrest warrant has been issued when there are reasons to believe, on the basis of objective elements, that the said arrest warrant has been issued for the purpose of prosecuting or punishing a person on the grounds of his or her sex, race, religion, ethnic origin, nationality, language, political opinions or sexual orientation, or that that person's position may be prejudiced for any of those reasons." Recital 12 adds that the framework decision "does not prevent a Member State from applying its constitutional rules relating to due process, freedom of association, freedom of the press and freedom of expression in other media."
Recital 13 is also important. It states: "no person shall 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." Section 29 reflects the provisions in article 1.3 and recitals 12 and 13.
In regard to the specific protections and guarantees, article 3 of the framework decision lists mandatory grounds for the non-execution of European arrest warrants. A person may not be surrendered if he or she has been the subject of an amnesty in respect of the offence in question. A person who has been finally judged and has completed a sentence imposed in a member state or is no longer required to serve it in respect of the offences in question may not be surrendered. A person who cannot be held criminally responsible for the offence in question by virtue of his or her age may not be surrendered. Sections 31, 33(1) and 35 of the Bill reflect these provisions.
Article 4 of the framework decision lists grounds upon which member states may rely, as opposed to non-mandatory grounds, for non-execution of European arrest warrants. Several of these are included in the Bill. Section 30 implements article 4.1 and requires that, with the exception of the offences on the "positive list", the offences specified in the warrant must correspond to offences under Irish law, with a necessary qualification to allow for variations in the designation of certain revenue offences. Clearly Revenue codes are not the same across Europe so that we will be dealing with substantial correspondence in those cases. Section 30 therefore implements the dual criminality requirement for offences other than those covered by the "positive list".
Section 34 implements article 4.2 and 4.3. It provides that a person may not be surrendered where he or she is being proceeded against in the State in relation to the same offence or where it has been decided not to proceed or to halt proceedings against the person in the State in respect of the offence on which the warrant is based. In other words, if in Ireland a person is being proceeded against for the offence or if a decision has been made to halt or not to prosecute, that is a ground on which Ireland can refuse to extradite. Section 32 implements article 4.4 in prohibiting surrender where a prosecution for the same offence would not be permitted in the State by virtue of lapse of time.
Section 33(2) implements article 4.5 by prohibiting surrender where the person had been finally judged in a non-EU state and had served the sentence imposed or was no longer required to serve it. Section 36 implements article 4.7. It prohibits surrender where the offence occurred on the territory of the executing state or outside the territory of both the issuing and executing states and the offence is one over which the executing state does not have jurisdiction. Extra territorial offences or offences committed in Ireland are dealt with by that provision.
Section 37 gives effect to article 5.1. It provides that where the person had been tried in absentia, surrender may be made subject to guarantees from the issuing state that the person will have an opportunity of a new trial and of being present at that trial. Article 11 contains the very important provision that a person must be informed of the right to legal assistance and interpretation services. A person arrested under either section 11 or section 12 of this Bill must be informed of these entitlements.
Article 12 provides that a person may be remanded on bail pending a decision on his or her surrender. Sections 11(5) and 12(5) of the Bill give effect to that provision. A person who consents to surrender, as provided for by article 13 and section 13(8) of the Bill may withdraw that consent. In such cases, the person is then entitled to a full hearing of the surrender application. Before accepting that the person has consented to his or her surrender, the court must be satisfied that the consent was voluntary and informed.
Article 14 provides a guarantee that an arrested person has a right to a hearing before being surrendered. This is given effect by sections 13 and 14 of the Bill.
Section 28 gives effect to article 26. It ensures that in the case of persons returned to Ireland, any time served in custody in the executing state pending a decision on the request will be taken into account in any sentence to be served here. A person surrendered by Ireland to another member state on foot of a European arrest warrant may not be surrendered or extradited by that other member state to a third member state or to a non-EU state without the consent of the Minister for Justice, Equality and Law Reform. Sections 18 and 19 make provisions in this regard.
Deputies will agree that the safeguards I have just outlined are real and comprehensive. However, before leaving this topic, I draw attention to the statement Ireland made when the framework decision was being adopted. The text of that statement is as follows: "Ireland shall, in the implementation in domestic legislation of this Framework Decision provide that the European arrest warrant shall only be executed for the purposes of bringing that person to trial or for the purpose of executing a custodial sentence or detention order." The important point to note is that in cases where the person has not yet been convicted, the emphasis is on ensuring that the person is being sought to face trial. This is designed to ensure that persons are not surrendered in custody for investigative purposes, with the possibility of prolonged detention before a decision is taken on whether to charge that person. That is the substance of the Irish declaration.
Section 9(3) gives effect to Ireland's statement. It requires that the issuing judicial authority must provide written undertakings that the warrant is for purposes of the person being charged with and tried for the offence specified. In addition, it requires that there must be written confirmation that the person has been charged and that a decision to bring the person to trial has been made or, alternatively, that a decision has been taken in the issuing member state to proceed to charge and try the person once he or she has been returned to that member state.
Still on the question of safeguards, I want to mention briefly the position in relation to the accession states. As the House will be aware, eight states from central and eastern Europe as well as Cyprus and Malta will be joining the EU with effect from 1 May 2004. They will be expected to implement the framework decision as part of the acquis they will take on board as from that date. However, given the importance and sensitivity of the justice and home affairs issues, as well as some other matters, a special safeguard clause has been inserted into each of the accession treaties. The clause provides that the Commission should monitor implementation of framework decisions by the new member states and provides for remedial actions, including the suspension of the operation of framework decisions by those new member states in certain cases. This measure should allay concerns about the implementation of measures such as the European arrest warrant in the early years of EU membership by the accession states.
I wish to outline now how the new arrangements will operate. While, as I mentioned earlier, the new system is designed to be in very large measure an inter-court system, the framework decision, nevertheless, permits each member state to nominate a central authority. Its role is to provide administrative and technical assistance in relation to the transmission of warrants as well as supplemental information or documentation. It will also liaise with relevant authorities in other member states in connection with arrangements for the handing over of wanted persons and property. That is relevant because in the majority of states in Europe the judiciary has an investigative role of its own, but in Ireland that is put on the Executive side of the constitutional structure so that we have to put in place a central authority which is effectively not the court itself. That is the reason the Minister for Justice, Equality and Law Reform will perform that central authority function and it enables the Minister to delegate by order certain of the central authority functions to other agencies or persons should the need arise.
The High Court will be the judicial authority with responsibility for the execution of European arrest warrants received by Ireland. Any Irish courts having jurisdiction in criminal matters may issue a European arrest warrant, on application from or on behalf of the Director of Public Prosecutions, where a person now in another member state is facing charges or is required to serve a sentence in Ireland. In all cases, the warrants will be transmitted, inwards and outwards, by the central authority. European arrest warrants may be in their original form or may be sent by fax or electronically. Electronic transmission may, in due course, be via the Schengen information system, SIS. Ireland has opted to participate in elements of the Schengen Convention and arrangements are being put in place to establish the necessary systems and procedures.
Section 11 provides that following receipt of a European arrest warrant, it will be brought to the High Court for its endorsement. Endorsement of the warrant by the High Court will have the effect of authorising the arrest of the named person. The powers of the gardaí to make an arrest in these circumstances are provided by section 20. It includes powers to enter premises to effect the arrest and to seize goods and property considered to be connected with or the proceeds of the offence specified in the European arrest warrant.
The possibility of an arrest where the gardaí are satisfied, based on information available on the SIS, when that system is up and running, that a European arrest warrant exists, but has not yet been received is provided for by section 12. The information on the SIS must indicate that where the person has not yet been convicted, he or she is to face trial rather than being sought for investigative purposes. An arrest under section 12 must be based on a reasonable belief that the person will leave the State prior to the European arrest warrant being received here. Where there are no grounds for such a belief, the question of an arrest must await the arrival of the European arrest warrant and in those circumstances the procedures I have outlined for section 11 apply. In cases of arrests under section 12, the European arrest warrant must be produced within seven days of the arrest, otherwise the person must be released. That mirrors provisional warrants which are already provided for under classical extradition provisions in Irish law.
A person who has been arrested, whether under section 11 or 12, must be brought before the High Court as soon as possible after his or her arrest. The court may remand the person in custody or on bail and it will also fix a date for the full hearing of the application. However, a person has a right to consent to surrender at this or any later stage. Section 13 deals with such cases. In these cases a full hearing will not be required if the court is satisfied that the person has given his or her consent voluntarily and in full knowledge of the consequences. As I indicated earlier, a person who has consented may withdraw that consent. Withdrawal of consent will give rise to the need for a full hearing.
Section 14 provides that the High Court may, after satisfying itself that the person before it is the person named in the European arrest warrant and after hearing the application, make an order for the person's surrender. However, it may do so only where it is satisfied that all the provisions in the Bill are complied with. There is a stay of 15 days before the order takes effect and the person will normally be surrendered within a further ten day period. Upon making the order, the court must remand the person in custody and inform him or her of the provisions of Article 40.4.2º of the Constitution which allow for habeas corpus applications. Section 14(10) provides for appeals on points of law to the Supreme Court against the High Court's order.
Section 17 deals with the rule of specialty which provides that a person who has been extradited or surrendered to another state may be proceeded against in that other state in respect only of the offence or offences for which he or she was extradited or surrendered unless the consent of the extraditing country has been previously obtained. That remains the basic position but certain limitations are introduced. The framework decision and the Bill provide that a person may be proceeded against for offences other than those for which he or she was surrendered where such offences attract financial penalties only or where a sentence of imprisonment will not arise. Neither will the rule apply where the person in question consents, either before or after his surrender, to being proceeded against for other offences. In both cases, the court must satisfy itself that any consent given has been or will be given freely and in awareness of the consequences. As is the case under current extradition rules, specialty will not be applied in cases where the issuing judicial authority requests the central authority in this State to waive the rule and the Minister agrees to do so.
Sections 18 and 19 provide that a person who has been surrendered on foot of a European arrest warrant may not be surrendered to a third member state or to a third country, that is, to a non-EU state, unless the person gives voluntary and informed consent or unless the Minister in this State agrees to the onward surrender, having regard to the safeguard provisions in Part 3 of the Bill and in the framework decision. In cases where the request is for the extradition of the person from the member state to which he or she has been surrendered to a non-EU state, the High Court will also be required to give its consent and it may do so only where it is satisfied that the requirements of the Extradition Act 1965 are met.
Sections 24 and 25 of the Bill set out the procedures and criteria to be applied when there are several European arrest warrants for the same person but from different member states, or where there are European arrest warrants from one or more member states and extradition requests from one or more non-EU states.
Sections 26 to 28, inclusive, deal with the arrangements for the issuing of European arrest warrants by Ireland. Section 27 provides that applications may be made to any court having jurisdiction in criminal matters by or on behalf of the Director of Public Prosecutions. The courts in question are the District and Circuit Criminal Courts, the Central Criminal Court and the Special Criminal Court. A European arrest warrant may be applied for where a warrant for the arrest of the person has already issued in the State and the person is not in the State. The warrant must be in respect of an offence having a penalty of 12 months imprisonment or more, or where the person has already been convicted, a sentence of four months or more has to be served. The court that issues the European arrest warrant will be required to indicate whether the European arrest warrant is in respect of an offence that comes within the "positive list", an offence listed in article 2.2 of the framework decision that carries a penalty of three years imprisonment or more under Irish law.
The executing judicial authority in the other member state will be obliged to accept that certification and the question of the dual criminality of the offence shall not be considered further. As I indicated earlier, the reverse applies in the case of European arrest warrants which are to be executed in Ireland.
I referred earlier to the guarantee in section 28 to the effect that a person who is detained in custody in another member state while the European arrest warrant issued by Ireland is being processed in that other member state shall be entitled to have that period of detention taken into account when determining, following surrender, the period of sentence to be served, if any, in Ireland.
Part 3 of the Bill, sections 29 to 38, inclusive, contains the safeguards I spoke about earlier. I do not propose to cover that ground again but I emphasise that every application that comes before the High Court will be subject to these safeguards and no application for a surrender on foot of a European arrest warrant may be granted unless and until those safeguards are satisfied.
Part 4 contains a number of miscellaneous amendments to our existing extradition law. The Extradition Act 1965 contains the main provisions. It has already been amended on a number of occasions, twice in 1987, again in 1994 and most recently in 2001. Section 39 of the Bill proposes to amend section 3 of the 1965 Act. It is proposed to amend the definition of "country" to include "territories" for which that country has responsibility at the level of international relations. The immediate purpose of this amendment is to ensure that extradition arrangements with the Isle of Man and the Channel Islands can continue to operate. Those territories will not be operating the framework decision on the European arrest warrant and it has been agreed with the UK authorities that extradition arrangements with those territories should, instead, operate on the basis of the 1957 European Convention.
I referred just now to an agreement with the UK in relation to future extradition arrangements with certain UK territories. That was part of a wider discussion with the UK authorities on arrangements to apply once the European arrest warrant enters into operation on 1 January next. Article 31.2 of the framework decision deals with cases where there are bilateral arrangements in force such as the "backing of warrants" arrangement we have with the UK. It states: "Member states may continue to apply bilateral or multilateral agreements or arrangements in force when this framework decision is adopted in so far as such agreements or arrangements allow the objectives of the framework decision to be extended or enlarged and help to simplify or facilitate further the procedures for surrender of persons who are the subject of European arrest warrants." This is the legal test to be applied to existing arrangements. Applying these criteria, it was agreed with the UK that the existing "backing of warrants" arrangement does not satisfy the legal test in question and will therefore be replaced as from January next with the European arrest warrant.
Part III of the Extradition Act 1965 provides the legal basis for the "backing of warrants" arrangement. Among a number of technical amendments I propose to bring forward on Committee Stage is an amendment to provide for the formal repeal of Part III. While the effect of the Bill will be to render Part C of the 1965 Act redundant, I understand that the UK legislation on the implementation of the framework decision will also provide for the formal repeal of its legislation on the "backing of warrants" arrangement, namely, the Backing of Warrants (Republic of Ireland) Act 1965.
Section 39(1)(b) and 39(2) amend sections 1A and 1B of the 1965 Act, as inserted by the Extradition (European Union Conventions) Act 2001. Sections 1A and 1B of the 1965 Act provide that the Minister for Foreign Affairs may designate member states with which Ireland will operate the 1995 and 1996 EU Conventions on Extradition. Under the terms of the 2001 amendments, the conventions could apply only between Ireland and other member states. However, in the meantime it has been agreed by the EU that all or part of the conventions should apply in relations between the member states and Norway and Iceland, and between those two states. The amendment proposed will allow the Minister to designate states other than member states, thus allowing Ireland to participate in the extension of the territorial scope of the conventions. These amendments must be read together with the amendments introduced by section 41 of the Bill.
This amends sections 4 and 10 of the 2001 Act by providing that the 1995 and 1996 conventions may be deemed to have been adopted in whole or in part by countries designated by the Minister for Foreign Affairs for that purpose. The overall effect of these changes is that non-EU states may be deemed to have adopted the 1995 and 1996 EU conventions or parts thereof and where that occurs Ireland may then operate those conventions with states that have been deemed to have adopted them.
Section 4 amends the procedural requirements in section 10 of the Extradition (European Convention on the Suppression of Terrorism Act) 1987 for the laying of orders before each House of the Oireachtas. It is proposed that orders shall take effect 21 days after being laid unless annulled. The orders under section 10 of the 1987 Act are for the purpose of extending the provision of that Act to apply between Ireland and countries that are not parties to the European Convention on the Suppression of Terrorism. The amendments bring the procedures under section 10 into line with the amendments to section 4 of the 1965 Act which were introduced by section 21 of the 2001 Act.
In conclusion, this Bill represents a major development in our relations with other EU member states. It is mandatory for us to do this. EU law requires us to transpose the framework decision into Irish law and I hope the Deputies will appreciate that this is not a policy initiative in which we are free agents to accept or reject these matters. Under international law we must give effect to the framework decision in a manner which we adjudge to be correct and which is consistent with our obligations under EU treaties.