Local view for "http://purl.org/linkedpolitics/eu/plenary/2003-05-14-Speech-3-100"
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Mr President, ladies and gentlemen, today we have the opportunity to bring you up to date on the current state of negotiations between the Presidency and the United States of America on the two agreements, one on extradition and one on mutual judicial assistance. These negotiations are now in their final stage. The text of the draft agreements was sent to the European Parliament two weeks ago. The Presidency hopes that they will be approved and signed at the JHA Council on 6 June. This will allow the Presidency to sign the agreements within the framework of the summit meeting of the European Union and the United States due to be held in Washington on 25 June.
In the case of sensitive information, the draft agreement allows consultations to be requested in order to determine the degree to which the information contained in a request can be protected by the requesting state.
With regard to multiple requests, the agreement addresses the issue of the simultaneous submission of an extradition request by the United States of America and another state or when that other state is a member state of the European arrest warrant. Within this framework, I should like to mention the issue of the International Criminal Court, given that the Presidency is aware of the particular sensitivities and concerns of Parliament on this account. When negotiations started, it was agreed by both the negotiating missions that the agreement would not have any repercussions whatsoever on the relative positions of the Member States and of the United States of America with regard to requests by the International Criminal Court for a person to be handed over. The European Union and the United States of America agreed at the negotiation level to set this out in writing in an explanatory memorandum which states that Article 10 is not intended to affect the obligations of the states who are party to the Rome Statute of the International Criminal Court. Consequently, the question of a simultaneous request for a person to be handed over from the International Criminal Court and an extradition request from the United States of America is regulated and shall continue to be regulated so that it is subject to the exclusive jurisdiction of the Member States, while the Council will not be able to proceed to make any declaration on this.
With regard to mutual judicial assistance, some of the main achievements of the negotiations with the United States of America are to be found in the following sectors: the draft agreement improves cooperation in the field of investigations into the possible financial elements of serious crime, including organised crime, terrorism and fraud. The Member States which do not at present have an agreement on mutual judicial assistance with the United States of America can fall back on public order, security, national sovereignty or other interests of the state in receipt of the request in order to refuse to transmit information in some cases. The agreement contains extensive provisions concerning data protection and the provision of evidence and information. The draft agreement contains provisions which facilitate the use of joint investigation teams and the facility for teleconferencing between the Member States and the United States. These provisions make it easier for the Member States to use these facilities but they do not oblige them to use them. The draft agreement permits the use of modern means of telecommunication, facsimiles or e-mail in order to exchange requests for mutual judicial assistance and replies with express confirmation of receipt. Mutual judicial assistance, insofar as this sort of thing does not already happen under bilateral agreements, can be used by the administrative authorities both in the United States of America and the Member States, when they are conducting investigations into criminal behaviour with a view to criminal prosecution or to reporting such conduct to the investigating or prosecuting authorities.
Mr President, ladies and gentlemen, I should like to thank you once again for giving us the opportunity to give Parliament a progress report on negotiations between the European Union and the United States of America on the extradition and mutual judicial assistance agreements.
If we are today in a position which allows me to be optimistic about the outcome of these negotiations, that is also largely due to the important efforts of previous presidencies. After a first round of negotiations under the Spanish Presidency, extensive negotiations were held under the Danish Presidency with the help of the Commission and the support of the Council Secretariat.
At its meeting on 28 February 2003, the Council agreed that the Presidency had conducted the negotiations efficiently, with an encouraging outcome, and that the negotiation of the agreements should be suspended, in order to allow time for the Member States to examine all relevant aspects of the text. Certain Member States are still in the process of consulting their national parliaments, which is why the Council decided at its meeting last week to facilitate the completion of the information process. The Presidency, I would remind you, has informed the European Parliament on the state of negotiations with the United States of America several times; in fact, the last time, we had the opportunity to inform the LIBE Committee on 20 March. If the Council on 5 June authorises the Presidency to sign the agreements on behalf of the European Union, certain of the Member States will need to follow their constitutional procedures, which implies approval or ratification by their national parliaments. Article 24 of the Treaty on European Union expressly allows Member States to state that they must follow constitutional procedures before being bound by an agreement. Indeed, certain Member States have already stated to us that they will be making such a statement. The European Union will only be bound following the exchange of the legislative acts with the United States of America, which will consequently only take place once the Council has taken a second decision authorising the Presidency to exchange the legislative ratifying acts with the United States of America. Between the signature of the contracts and the exchange of the ratifying documents, the Presidency will update the European Parliament on the text of the agreement on an ad hoc basis, despite the fact, of course, that the Treaty on European Union contains no such requirement. It is logical for this update to take place at this stage, given that the constitutional procedures have traditionally made provision for governments to seek the assent or advice of national parliaments on the final text of the agreement. Obviously a text only becomes final once it has been signed by the contracting parties.
The Presidency believes that this agreement has added value in comparison with current bilateral agreements on extradition and mutual judicial assistance between the Member States of the European Union and the United States of America. I must stress that, if we do not reach some sort of agreement, we shall have to live with the existing bilateral agreements which the Member States have concluded. In all events, the EU-USA agreements will not repeal bilateral agreements between the Member States and the United States of America. The agreements I am telling you about today are based on Articles 24 and 38 of the Treaty on European Union. They will exist alongside bilateral agreements. They will complement them and, in certain cases, they will replace provisions in the bilateral agreements.
It is also important for us to understand that the Member States will be able to continue to cite the grounds for refusing extradition or providing judicial assistance which are contained in the bilateral agreements on extradition and mutual judicial assistance. If a bilateral agreement on mutual judicial assistance or extradition between a Member State and the United States of America makes provision for certain grounds for refusal, that Member State will be able to continue to cite them even once the EU-USA agreements have entered into force.
In addition, the draft agreement on extradition contains a provision which, as far as I know, has no precedent in international extradition law. It recognises that the state being asked to extradite a person may refer to its constitutional principles, which need not be included in the actual text of the constitution, but which can be enshrined in a text on equally as high a level as the constitution for historical or other reasons which are legally binding and which prevent it from honouring its obligation to extradite a person. In such cases, of course, the state requesting that a person be extradited and the state being asked to extradite a person must consult in order to resolve the matter. This also becomes particularly important with the express reference in the preamble to the principle of a fair hearing by an impartial tribunal established by law. This provision does indeed allow the Member States to refuse to extradite a person in the case of special courts, if they do not have this right on the basis of their bilateral extradition agreement with the United States of America.
The Member States which conclude new agreements with the United States of America in the future will clearly have to comply with these EU agreements, in that they will form part of the
of the European Union. Therefore, these future bilateral agreements will have to be compatible with the EU-USA agreements.
In the opinion of the Presidency, the negotiations were successful. We managed to make a positive contribution to the current level of assistance, to improve efficiency and, most importantly, to agree on additional safeguards. It is of the utmost importance that we understand that the agreements add safeguards to existing bilateral agreements and that, if these agreements had not been concluded, the present legal protection would have shortcomings in comparison to how things will stand when the agreements are concluded. The draft EU-USA agreement on extradition contains a provision which prohibits extradition in the case of the imposition or execution of the death penalty. This provision exceeds the level of protection for which provision is made in bilateral extradition agreements, given that it creates a general precondition for the result described and does not make the non-execution of the death penalty dependent upon the assurances of the Government of the United States of America in the case in question. Contrary to what has applied to date in almost all bilateral extradition agreements, the non-execution of the death penalty by the Government of the United States of America will not depend on the assurances given in the case in question by the Government of the United States of America each time on an ad hoc basis, and will probably be put forward as a precondition by the Member State in receipt of an extradition request from the United States. In addition, the Member States of the European Union can impose the precondition that the United States of America will not impose the death penalty. The United States of America will then be bound by this precondition, unless this is impossible for procedural reasons. One such case is when the death penalty has already been imposed before the person is handed over or when the criminal prosecution of the offence of which the person stands accused automatically implies the possibility for the competent court in the United States of America to impose the death penalty, as happens in very few states in the United States of America. The Member States that wish to follow their bilateral practice will, however, be able to do so if they do not apply this provision and/or if they make a joint declaration at bilateral level with the United States.
Some of the other issues to which the draft agreements bring added value in connection with extradition are as follows:"@en1
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