I thank the chairman and the committee for the invitation to speak on this matter. As the Chairman said, we are not in a position to talk about the merits of a policy, as is normal in these cases. I will outline the background to the agreements between the European Union and the United States of America and I will deal briefly with the extradition element and Ms Walsh will deal with mutual legal assistance in criminal matters.
The European Council agreed in September 2001 to undertake negotiations with the United States of America on matters relating to judicial co-operation, including extradition and mutual legal assistance. The Justice and Home Affairs Council approved a mandate in April 2002 authorising the opening of negotiations with the USA on extradition and mutual legal assistance matters. The negotiations got under way in late June 2002. The current situation is that all EU member states have bilateral treaties with the USA on extradition and a significant number have bilateral agreements on mutual legal assistance. Ireland has a bilateral treaty on extradition since 1983 and it has signed a bilateral treaty on mutual legal assistance, ratification of which is being finalised at present.
The EU mandate required there should be full protection of fundamental rights and respect for constitutional principles. The mandate also provided that any new agreements should build on rather than replace existing bilateral agreements. We will see how that came into operation. While the negotiations have resulted in two separate agreements, one on extradition, the other on mutual legal assistance, it is accepted that the two agreements form a package and that one will not be implemented without the other.
A procedure was agreed by the EU on the conclusion of the agreements, which involved the taking of two decisions, the first of which was taken on 6 June 2003 and it authorised the Presidency to sign the agreements on behalf of the EU. The signing took place in Washington at the EU-USA summit on 25 June and the agreements were subsequently published in the Official Journal on 19 July. Before ratification each member state has discussions with the USA and brings their bilateral treaties into line with the EU-USA agreement. Article 3 of both agreements sets out the detailed arrangements by which the new agreements and the existing bilateral treaties are to be brought into line.
Where anything in the EU-USA agreement exceeds or adds to an existing bilateral treaty, it will be expected that the bilateral will be supplemented, to bring it into line with the new agreements. Any changes arising at bilateral level will be aimed at ensuring that the bilateral arrangements are consistent with the new EU-USA agreements. Following completion of the bilateral discussions, each member state and the USA will undertake its own national processes leading to ratification of the updated bilaterals.
When all member states and the USA have completed their national constitutional and parliamentary procedures on the ratification of the agreements, the EU will be in a position to adopt the second Council decision, which will authorise the Presidency to conclude or ratify the agreements on behalf of the EU. It is expected that process will take about 12 months to complete leading to late next year.
The bilateral discussions got under way on 23 October. Ireland, along with Italy and Denmark, has had bilateral discussions at official level with the US authorities with a view to identifying the alterations needed in our bilateral arrangements. Once bilateral texts have been agreed, we will be in a position to undertake the ratification process. That is likely to entail bringing the revised texts before the Oireachtas for approval.
The preamble to the extradition agreement sets out some basic considerations. It refers to the need to have regard to the rights of the individual and the rule of law. It refers also to the guarantees to the right to a fair trial, including the right to adjudication by an impartial tribunal, established pursuant to law. Those were guiding principles at all stages of the discussions with the US. The extradition agreement consists of 22 articles, the main provisions of which deal with simplified procedures for transmission of requests, establishing criteria for deciding between competing requests, authentication of documents, simplified extradition, i.e. where the person consents to surrender, as well as a revised provision relating to capital punishment.
The agreement applies to requests issued after it enters into force and to offences committed before as well as after that date. However, the arrangements relating to temporary transfer may apply even in respect of requests issued prior to the agreement coming into force. Article 4 of the agreement defines "extraditable offences" as offences carrying a penalty of one year imprisonment or more in both the requesting and requested states. This Article is introduced to allow a small number of member states change from a system where extradition applies only in respect of a specific list of offences to one where the sentence threshold is the determining factor. Ireland's bilateral treaty already reflects the threshold approach.
On the transmission of documents, the agreement envisages greater use of the embassies of requested states in the requesting state. In future, in order to meet deadlines, requests for extradition can be submitted to the embassy of the requested state located in the requesting state. For example, the US can meet its requirements by submitting its request to the Irish Embassy in Washington. That is regarded as delivering the request to Ireland and vice versa.
The procedures relating to authentication of documents are being eased. Documents which bear the seal of the ministry of justice of the requesting state will be admissible in extradition proceedings in the requested state without additional certification. Article 14 establishes a mechanism for dealing with the possible disclosure of sensitive information in an extradition request. The requesting state will decide whether to supply such information following consultations with the requested state about the disclosure of the information during the processing of the request. If it is concerned that information could be disclosed which it would not wish to have, it has the option of not submitting it in the first place.