Basic principles of mutual legal assistance and extradition agreements with third countries

Purpose MLA and extradition (and other forms of international judicial cooperation) with 3rd countries is part of the external policy of the Union Purpose of policy : promote judicial cooperation in criminal matters with third countries in the framework of the EU external policy EU values: rule of law, human rights, protection of individuals

Legal basis for the EU – third countries MLA and extradition agreements

Until 30 November 2009 Article 24 and 38 of the Treaty on the European Union – all existing agreements were negotiated and signed under this legal basis Negotiations led by the Presidency, assisted by the Commission. No involvement of the European Parliament Decisions adopted by unanimity in Council Article 24 (5) (compliance with constitutional requirements) meant in practice a real obstacle for the conclusion of these agreements

As of 1 December 2009 Articles 82(1) and 218(6) of the Treaty on the Functioning of the European Union The negotiations will be open on the basis of recommendations from the Commission to the Council The negotiations will be led by the Commission The Council will adopt decisions by qualified majority The European Parliament will be fully involved – it will give its consent No article on compliance with constitutional requirements

Existing Agreements EU – USA Mutual Legal Assistance and Extradition Agreements of 2003 EU – Iceland and Norway mutual legal assistance Agreement of 2003 EU – Iceland and Norway Agreement on the surrender procedure of 2006 EU – Japan Mutual Legal Assistance Agreement of 2009 No experience with practical implementation of the Agreements so far

Each of these Agreements had different negotiation background EU – US Agreements - after the events of 9/11 - EU and US started to cooperate quickly on modernization of law enforcement and judicial cooperation - 2003: first international agreements in the field of justice and home affairs signed by the EU (on the basis of articles 24 and 38 of the TEU) The Agreements were negotiated in very fast and constructive manner (bearing in mind the common threat of terrorism) Framework agreements – set common framework for cooperation, but will co-exist with EU MS – US bilateral agreements (54)

EU – Iceland and Norway Agreements Some MLA provisions constitute a development of the Schengen acquis and therefore have been accepted by Iceland and Norway. Even though it has been established that the surrender procedure does not constitute a development of the Schengen acquis, it has been concluded that an surrender agreement would be negotiated (instead of extradition agreement, which had been foreseen)

EU-Japan MLA Agreement Based mainly on political will of both parties Negotiated in record time (given the entry into force of the Lisbon Treaty, the negotiations had to be completed before the end of November 2009) Unique Agreement - First EU-third country “self-standing” Agreement (no bilaterals)

Looking back This overview shows that no coherent approach and clear selection criteria were followed in the past negotiations. This will change under the Stockholm Programme, which establishes the following:

The Stockholm Programme Necessary to identify priorities for the negotiations of mutual legal assistance and extradition agreements. The Union will still promote the widest possible accession of the partner countries to the most relevant and functioning Conventions. Synergy with the Council of Europe work should be considered (where possible)

Mandate The SP calls upon the Commission, The Council and the European Parliament to: Develop a policy aimed at the establishment of agreements on international judicial cooperation taking into account the following criteria:

Possible criteria under the Stockholm Programme Strategic relationship - in the JLS area the EU has developed a very wide range of relations with third countries – these should be taken into account Existence of bilateral agreements - two individual examples show EU agreements were negotiated in both cases (many bilateral agreements existed x no bilateral agreements existed) – it is always necessary to evaluate the added value of the EU-third country agreement

criteria Adherence of the country to human rights’ principles - the EU has clear criteria as regards human rights (CFR): - European countries – CoE standards - non-European – UN standards General cooperation (e.g. trade) with the EU and Member States The EU priorities of law enforcement and judicial cooperation (possible list of priority countries established by the Council)

Mandate Under the SP - the Commission is invited to submit to the Council a list of countries that have requested to conclude agreements on MLA and extradition with the Union and to submit an assessment of the appropriateness and urgency of concluding such agreements with these or other countries. Not possible to indicate any concrete country now.

SP Action Plan The Stockholm Action Plan is currently being drafted and will be adopted under the ES Presidency Under the Action Plan the Commission will have a mandate to come up with its Proposal by 2011 - probably in the form of Communication on the following: Criteria for selecting the countries List of countries who requested Assessment of the appropriateness and urgency of concluding such agreements with these or OTHER Countries

Concrete case: MLA Agreement with Japan The need to establish clear criteria for choosing the countries with which MLA and extradition agreements should be concluded has arisen during the discussion leading to the adoption of the negotiation mandate for the EU-Japan MLA Agreement

Why Japan ? PROS No Member State has concluded bilateral MLA agreement with Japan Great political will to conclude such agreement with an important economic and political partner After Japan sent an official request for negotiation, possible refusal would put the EU in rather unfortunate and difficult position

Why Japan ? CONS Rather low number of cases between the EU and Japan (200 over past ten years) Therefore the practical importance of the Agreement is difficult to be estimated There are other countries, which have much closer cooperation and more MLA requests with the EU Member States

The death penalty issue in MLA with Japan The EU Member States expressed their clear approach when the negotiation mandate was adopted in February 2009. Article on the guarantee as regards the death penalty had to be included Japan was rather reluctant to agree on such article, however, the EU made it clear that no MLA Agreement can be concluded without such Article.

Death penalty This was particularly important point given the fact that this will serve as a “precedent” when negotiating MLA and extradition agreements with other countries in the future Article 11 (1b) of the EU-Japan Agreement → Assistance may be refused if the requested State considers that: The execution of a request is likely to prejudice its sovereignty, security, ordre public or other essential interests. For the purpose of this sub-paragraph, the requested State may consider that the execution of a request concerning an offence punishable by death under the laws of the requesting State, ……., could prejudice essential interest of the requested State, unless the requested State and the requesting State agree on the conditions under which the request can be executed.

The death penalty issue in the EU-US Extradition Agreement → Article 13 Capital punishment Where the offence for which extradition is sought is punishable by death under the laws in the requesting State and not punishable by death under the laws in the requested State, the requested State may grant extradition on the condition that the death penalty shall not be imposed on the person sought, or if for procedural reasons such condition cannot be complied with by the requesting State, on condition that the death penalty if imposed shall not be carried out. If the requesting State accepts extradition subject to conditions pursuant to this article, it shall comply with the conditions. If the requesting State does not accept the conditions, the request for extradition may be denied.

Guidelines suggested at the Council in June 2008 Political and economical importance of the country The added value of an agreement as compared to the existing legal framework The legal standards of the country concerned → The rule of law, issue of prohibition of the death penalty must be strictly ensured in the Agreement

guidelines The third country’s active approach towards conclusion of an agreement with the EU Always consider at the same time whether there is a need to conclude particular type of agreement Special consideration may need to be given to the protection of individuals

Questions to be discussed: Implementation of the Stockholm Programme? Should the EU draft a list of priority countries? Should the EU itself take a more pro-active approach to enter into negotiations with defined priority countries?

The role of Eurojust in judicial cooperation with third countries Eurojust’s instrument for cooperation with third countries: Possibility to conclude cooperation agreements Provided for by Article 26a of the Eurojust Decision → These agreements: set clear rules for the exchange of information and the data protection permit posting a “liaison prosecutor” from the third country at Eurojust Eurojust can serve as a “one-stop shop” for judicial cooperation in cases where two or more EU Member States are involved.

Eurojust – third countries cooperation agreements Norway – entered into force in 2005 Iceland – entered into force in 2006 USA – entered into force in 2007 Switzerland – signed in 2008 Former Yugoslav Republic of Macedonia – signed in 2008 Croatia – entered into force in 2009

Eurojust Eurojust decision as amended by Decision 2009/426/JHA provides for more transparency as regards the choice of the third countries → Article 26a sets an obligation of Eurojust to inform the Council of any plans it has for entering into any negotiations → The Council has to approve such agreement before Eurojust can conclude it.