Secret EU-US agreement being negotiated
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- secret agreement on criminal matters, investigative procedures and joint teams being negotiated without the the
European or national parliaments being consulted
- Statewatch refused access to full-text of document because: “the interest of protecting the Council’s objectives
outweighs the interest in “democratic control”.. which is referred to by the applicant”
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Statewatch has obtained a copy of the secret negotiating agenda for an agreement (treaty) between the EU and the US on
judicial cooperation in criminal matters which would have major implications for peoples' rights and liberties.
The draft agreement is going to be discussed in depth for the first time at the Informal Meeting of EU Justice and Home
Affairs Ministers in Copenhagen on 13 September - John Ashcroft, the US Attorney General will take part in these
discussions.
Tony Bunyan, Statewatch editor, comments:
“It is quite unacceptable in a democracy that an agreement should be negotiated with a non-EU state in secret, without
the European and national parliaments or civil society having any say whatsoever.
This is a primary example of fundamental rights and protections built up in the EU over decades being put up for
negotiation by EU governments to meet US demands in the so-called “war on terrorism”.
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The proposed agreement started out as one on combating terrorism but it now extends to crime in general. The Council of
the European Union (the 15 governments) has authorised the EU Presidency to:
"open negotiations with the United States for the purpose of concluding one or several agreements on cooperation in
criminal matters between the EU and the US. The negotiations should be.. conducted in the spirit of cooperation between
likeminded and equal partners" (emphasis added)
In the negotiations with the US the EU governments appear to be willing to drop or modify (in a negative way) a number
of basic rights and protections built into EU law and protected by the European Convention on Human Rights.
The agreement (and any future agreements) will be negotiated and agreed in secret under Articles 38 and 24 of the Treaty
on the European Union. Neither national or European parliaments are required to be consulted let alone civil society.
The "line to take"
The negotiating mandate is divided into two parts: "Issues to be raised by the EU" and "Issues raised by USA" and
against each issue raised is the EU "Line to take". The issues raised are the result of informal talks between the EU
and US that began on 29 September last year.
As regards "serious crime" the EU wants to "facilitate search and seizure in bank accounts" and on improving cooperation
and "reducing delays" proposing the creation of "contact points in each Member State and in the USA".
The EU is also making two major proposals: First, that the legal basis should be made for:
"the setting up of joint investigative teams"
to conduct undercover police operations. There is no reference to rules on the civil or criminal liability of team
members or to the legal rules to be applied to their operations.
Second, under the heading: "Improve investigation procedures" the EU is proposing:
"creating a common approach to searches, seizures, interception of telecommunications"
There is no mention of Article 8 of the ECHR (the right to private and family life) nor any reservations on issues such
as dual criminality or extraditability.
The EU positions under the heading "Guarantees and safeguards" make no mention of the European Convention on Human
Rights and worryingly says the issue of "data protection" should be "raised by the EU at a later stage" - this is
because the USA does not have a data protection act.
Most extraordinary of all, under the same heading, on the issue of the "death penalty" the EU "line to take" is:
"inform the USA that some Member States may wish to have specific provisions in this regard" (emphasis added)
It appears that "some" EU Member States are willing to become "accomplices" to the death penalty, by supplying evidence
and witnesses to the US in death penalty trials - even though all EU member states have ratified Protocol 6 to the ECHR
and have signed Protocol 13 to the ECHR (which ban the death penalty absolutely).
The "Issues raised by the USA" cover "narrowing down the political offence exception" (to extradition), extradition of
nationals and "Special courts" (on which the EU is to "seek assurances" that those extradited will be the subject of
ordinary US courts proceedings).
On the issues raised by the US on extradition the traditional "political offence" exception to extradition could be
weakened by “taking a modern approach” and many EU member states may have to drop constitutional bans on extraditing
their own nationals. This latter protection is to be dropped under the proposed EU Framework Decision on arrest warrants
but within the EU it is still subject to the ECHR and EU court judgements and to make such changes in this context is
highly questionable.
Nor is there any mention of a refusal to extradite, for example, to give protection against "double jeopardy" (which
means that a person cannot be tried on the same facts where a judgement has already been given in one state).
All EU measures agreed in this field are based on the principle that all member states have ratified the European
Convention on Human Rights. The US has not ratified the ECHR and cannot because it is not a member of the EU.
There are grave doubts about adequate parliamentary or judicial control over the ratification and implementation of the
treaty. It is not clear whether the usual powers of the EU Court of Justice on criminal law and policing matters will
extend to such a treaty and data protection is to be taken up at a "later date".
From terrorism to crime in general
In the immediate aftermath of 11 September the EU's Justice and Home Affairs Council on 20 September agreed that an
agreement should be negotiated with the USA on "penal cooperation on terrorism" (emphasis added).
On 21 September the US Mission in Brussels wrote to the EU Presidency in response calling for: "a formal agreement with
the EU on judicial cooperation in criminal matters" (emphasis added).
On 29 September informal exploratory talks were started between "the US authorities and the [EU] Troika operational in
Washington" on an agreement - this was followed up when "a high-level Troika from Ministries of Interior and Justice,
the Commission and the [Council] General Secretariat visited Washington DC on 18 October 2001". At the Gent European
Council (the 15 EU prime ministers) on 19 October the EU agreed to the broadening of an EU-US agreement from "terrorism"
to "criminal" matters in general (including terrorism).
At the informal meeting of the Justice and Home Affairs Council (JHA) on 14-15 February the Ministers endorsed the
opening of negotiations with the US on: "one or several agreements on cooperation in criminal matters" and to "continue
the informal exploratory talks with the US side". The JHA Council on 25-26 April authorised the EU Presidency (then held
by Spain, now Denmark has taken over) to: "negotiate an agreement on judicial cooperation in criminal matters, including
terrorism, on the basis of Articles 38 and 24 TEU" (Council press release).
Secret treaty-making
Articles 38 and 24 of the Treaty on European Union, as agreed at Amsterdam in 1997, allow the Council of the European
Union (the 15 governments) to negotiate and conclude agreements with non-EU states. The Articles do not provide for any
parliamentary involvement (national or European) at the stage of agreeing the mandate for negotiations or during the
negotiations - in fact, right up to the conclusion of any negotiations the content of the talks are, in principle,
secret.
On 13 March Statewatch applied to the Council for the first two drafts of the EU discussions on the negotiations
(neither of which is listed on its public register of documents). On 3 April the Council refused access because it would
be "prejudicial" to the EU's interests "in the efficient conduct of negotiations with a third country". Statewatch
appealed against this decision on the grounds that to withhold access on an issue which could have:
"huge implications for peoples' rights and liberties.. [and] it is quite unacceptable in a democracy that such an
agreement should be negotiated and agreed in complete secrecy"
In response the Council said on the issue of "public interest" that the:
"interest of protecting the Council's objectives outweighs the interest in "democratic control" of the negotiating
process which is referred to by the applicant"
Statewatch has received the official reply with two documents which the Council gives "partial access" (with nine of the
14 pages of text blocked out) subject to the exception (under Article 4.1.a: International relations of the 2001
Regulation on access). However, Statewatch obtained a later version of the documents in question which shows that many
of the rights and protections built into EU laws and judgements are under imminent threat.
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STATEWATCH ANALYSIS
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Statewatch analysis
EU/US agreement on extradition and mutual assistance
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Introduction
Council document 6438/2/02 sets out the secret negotiating agenda for a treaty between the EU and the US on extradition
and mutual assistance in criminal matters.
This document suggests that the treaty between the EU and the US could drop or significantly weaken many of the
traditional protections for the individual found in extradition and mutual assistance treaties, without expressly
planning to provide for sufficient protection for human rights and civil liberties which the EU and the US claim to
protect.
In particular:
- some Member States are willing to become 'accomplices' to the death penalty, by supplying evidence and witnesses to
the US in death penalty trials;
- protection for suspects and witnesses could be reduced;
- civil liberties guarantees against search and seizure, confiscation of property and interception of telecommunications
could be weakened;
- the traditional 'political offence' exception to extradition could be weakened;
- many Member States' constitutional ban on extraditing their own nationals could be dropped; and
- many other traditional grounds for refusal to extradite are not mentioned; and
- there are grave doubts abut adequate parliamentary or judicial control over the ratification and implementation of the
treaty.
Background
The planned treaty with the US will be, if agreed and implemented, the first comprehensive treaty between the EU as a
whole and any non-EU state on criminal law or policing issues. Following the Treaty of Amsterdam, which came into force
1 May 1999, the EU has the power under Article 38 of the Treaty on European Union (TEU) to negotiate and agree such
treaties, and it is this Article which will be used to agree the planned treaty with the US.
To date, the only formal agreed link between the EU and any non-EU state in policing or criminal stems from the previous
"association" with the Schengen Convention agreed between the EU and Norway and Iceland. However, a similar
"association" with the Schengen rules is being negotiated with Switzerland. Also, the EU Council has since July 2001
been trying to apply Article 38 of the TEU to negotiate a treaty with Norway and Iceland to extend to those countries
all EU rules on extradition and mutual assistance which have been agreed on top of the extradition and mutual assistance
rules set out in the Schengen Convention, or which build upon those Schengen rules (such rules already apply to Norway
and Iceland).
The treaty with the US will build on the existing treaties which most Member States have with the US as regards mutual
assistance (which governs the collection and provision of evidence, but which extends in EU practice to cover such
controversial matters as undercover policing operations and interception of telecommunications), and which all Member
States have with the US as regards extradition.
General concerns
The first general concern is the parliamentary control over the treaty. Given the importance of the planned treaty for
the rights of accused persons, and its likely broad scope given the scope of the planned treaty and the extent of Member
States' links with the US, parliamentary control is essential. However, Article 38 of the TEU does not provide for any
parliamentary involvement (of national parliaments or the European Parliament) at the stage of agreeing the mandate for
negotiations or during the negotiations. In fact, up until conclusion of any negotiations, the content of those talks
is, in principle, secret. While there is a long-established practice of involving the European Parliament (EP)
informally at the early stages of negotiating treaties which will bind the European Community, this practice apparently
has not been extended to policing and criminal matters.
As for the conclusion of the agreement, Article 38 TEU makes no reference to any involvement of the European Parliament.
While it is arguable that conclusion of such agreements will be covered by the general obligation to consult the
European Parliament on all EU policing and criminal law measures as set out in Article 39 TEU, it is not clear yet
whether the EU Council and the Member States agree with this interpretation. In any event, Article 39 of the TEU only
gives the EP the right to be consulted, not to veto or to insist on amendments to a proposed treaty.
Despite this limited or non-existent role for the EP, can national parliaments nonetheless assert control over
implementation of the planned treaty? The answer is no. Article 38 TEU only gives each Member State the option (acting
individually) to require national parliamentary assent before conclusion of a treaty on criminal law or policing. It
remains to be seen whether any Member States will insist on this requirement. In fact, no Member State required national
parliamentary assent when the EU last year agreed foreign policy treaties, subject to identical decision-making rules
(according to Article 24 TEU), with the Federal Republic of Yugoslavia and the Former Yugoslav Republic of Macedonia.
Even if some individual Member States do insist on national ratification of the future treaty, Article 38 TEU permits
the other Member States to decide that the treaty will nonetheless apply to them provisionally. So the only way that
national parliaments can block the application of the planned treaty is if (improbably) all Member States opt to require
national parliamentary assent before the treaty is concluded, or if those Member States which do not submit the treaty
to their national parliaments decide that they will not apply the future treaty provisionally.
What about judicial control? It is not clear whether the usual powers of the EU Court of Justice over criminal law and
policing matters will apply to treaties concluded following the application of Article 38 of the TEU. In any event, the
UK, Ireland and Denmark have decided to date that the Court of Justice will have no powers to receive any cases from
their national courts concerning any aspect of EU policing and criminal law.
The draft mandate is also vague as regards human rights protection. In recent years, the argument for accelerated
extradition proceedings and measures to ensure more mutual assistance in criminal matters within the EU has been based
on the principle that all Member States have ratified the European Convention on Human Rights (ECHR), so all can be
assumed to guarantee a minimum level of protection in criminal trials. Obviously, the US has not ratified the ECHR and
cannot ratify it, any more than the EU or its Member States can apply the United States Bill of Rights. But there is no
suggestion in the Council document that the future treaty will have a general provision allowing extradition or mutual
assistance to be refused in particular cases where there are grounds for doubting that a person will receive a fair
trial, particularly where the standards that would be applied are below the minimum guarantees in the ECHR or the Bill
of Rights respectively.
Concerns on mutual assistance
The mandate provisions on banking secrecy make no references to the limits on banking secrecy which were agreed within
the EU when the Member States negotiated the Protocol to the EU Mutual Assistance Convention (signed in October 2001).
There is also limited specific reference to data protection concerns, which are particularly relevant to banking
enquiries. The mandate indicates that these issues will only be raised by the EU side at a later date in the
negotiations, raising the risk that an adequate level of data protection will not be agreed at the outset.
The mandate suggests that the 'probable cause' requirement will be dropped by the US side. This will likely also entail
dropping any such requirement applied by the common law Member States of the EU (the UK and Ireland) as regards requests
from the United States. Historically, this requirement has been considered essential by common law countries to ensure
that requests for mutual assistance are genuinely motivated.
Next, the mandate envisions US participation in joint investigation teams. But there is no reference to the controls on
such teams set out in the EU Mutual Assistance Convention or the proposed framework decision on such teams, such as data
protection rules, rules on the civil and criminal liability of team members and the legal rules applied to the operation
of the teams.
The provisions on videoconferencing similarly omit to mention the protections in the EU Mutual Assistance Convention,
such as the protection of either state's law as regards the refusal to testify, the power of a suspect to refuse to
testify, and protections for a suspect under the ECHR and possible further measures.
As for investigation procedures, the mandate foresees measures on searches and seizure and interception of
telecommunications. There is no express reference to protecting the reservations on many grounds (for instance, dual
criminality, extraditability, national law rules) which EU Member States can maintain to refuse to apply a search and
seizure request from another Member State, even after extensive discussion of this issue when agreeing the EU Mutual
Assistance Convention and its Protocol. Similarly, there is no express reference to the need to ensure that the
guarantees of Article 8 of the ECHR (concerning the right to private and family life) and any higher standards applied
by national law of the Member States, along with the corresponding protections in the US Bill of Rights, are applied
fully when the two sides cooperate on interception of telecommunications.
Next, as regards the death penalty, it is highly questionable that some Member States appear willing to assist the US in
cases where the death penalty might be applied, even though all Member States have ratified Protocol 6 to the ECHR
(which bans the death penalty except in wartime) and all have signed the very recent Protocol 13 to the ECHR (which bans
the death penalty absolutely). It is clear that assisting a state to carry out the death penalty amounts to complicity
with the application of that punishment, and so at the very least violates the spirit of the Member States' obligation
to abolish that penalty and the EU's frequently-expressed commitment to abolish it world-wide.
Finally, as regards asset forfeiture and confiscation, there is no reference to the protections provided for in Protocol
1 to the ECHR on property rights or Article 6 ECHR on the right to a fair trial.
Concerns on extradition
The EU wants the US to remove the probable cause requirement for extradition, a traditional safeguard which common law
countries require to ensure that all intended prosecutions following an extradition are genuine, particularly to protect
their own nationals from facing an unfair trial in a foreign country. This could well mean that the UK and Ireland have
to remove any similar protection against extradition to the United States.
The mandate suggests reducing the scope of the classic political offence exception to extradition. Within the Council of
Europe, where all states have ratified the ECHR, this protection has only been weakened for certain specified very
serious offences closely connected with terrorism, subject to possible reservations (see the European Convention on
Suppression of Terrorism). Even within the EU, where the exception would be abolished completely by the Framework
Decision on the European Arrest Warrant, there is still a possibility of refusing extradition in cases of persecution of
the requested person, according to the preamble to the Framework Decision. In relations with the United States, given
the differences in the legal, political and constitutional structures of the two sides, any significant reduction in the
scope of the exception would be highly questionable.
As for extradition of nationals, a ban on extraditing nationals is considered an essential protection in a number of
Member States, featuring in national constitutions. While the EU Framework Decision on arrest warrants will require
Member States to drop that protection as between the Member States, this protection has been dropped in the context of a
common citizenship of the European Union, a move toward harmonising criminal law in the EU, the creation of an area of
'freedom, security and justice' and ratification of the ECHR by all Member States. It is rather more questionable to
drop this protection with a non-Member State which has, moreover, not ratified the ECHR.
As regards the limitation period for crime, the EU Extradition Convention of 1996 still permits a requested State to
refuse to extradite a fugitive where the requesting state has run out of time to prosecute that person. In fact, the
Council of Europe Convention on extradition still permits refusal due to lapse of time in either the requesting or
requested state. It is obviously questionable whether the EU should go further than these provisions in a treaty with
the US.
Finally, the mandate makes no reference to further reasons for refusing to extradite. For example, there is no reference
to protection against double jeopardy for persons subject to extradition requests. This rule (often referred to as ne
bis in idem) protects against a second criminal trial for the same facts in a Member State after a person has been
finally judged in another Member State. It is set out in the Schengen Convention and also in the EU Charter of
Fundamental Rights, and is a mandatory reason for refusing to execute a European arrest warrant, according to the
Framework Decision on that issue. Because it is in the Schengen Convention, the rule also covers Norway and Iceland, and
will cover Switzerland if that state becomes associated to the Schengen rules. Moreover, the Council of Europe
Convention on extradition also sets out a more limited rule on ne bis in idem, and a Protocol to that Convention
ratified by most EU Member States extends that principle further. In light of this, it is questionable whether an
extradition treaty should be concluded with the US without the inclusion of this essential protection. Logically, the
rule should also be a mandatory ground for refusal to cooperate with a mutual assistance request, as it arguably is at
present within the EU (along with Norway and Iceland).
Similarly, following other essential protections in EU and Council of Europe measures, it will be questionable if the
planned treaty fails to include rules regarding refusal to extradite if one state does not recognise the criminal
jurisdictional rules of the other, or where the requested person should not be moved on humanitarian grounds.
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LINKS TO FURTHER DOCUMENTATION
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1. 6438/1/02 partial access (5 pages)
2. 6438/2/02: full-text (14 pages)
3. 10288/02: Negotiations with USA on judical coperation in criminal matters – Procedure
4. Statewatch application for access to documents 6438/02 and 6438/1/02: 7663/02
5. The Council of the European Union's decision to refuse access: 7664/02
6. Full report in pdf format: Report, analysis and document