The Agreements between the European Union (EU) and the United States of America (USA) on Extradition and Mutual Legal Assistance for criminal matters will probably enter into force at the beginning of 2010 since they have now been ratified by all 27 member states and the US Senate (Greece being the last to sign, on 24 June). The Council Decision will be adopted in the next days once the formal exchange of the bilateral instruments of ratification is completed during the meeting of the ministerial troika with the American administration in Washington on 27 October.
Exceptionally, the two Agreements have already been ratified with the majority of 2/3 in the USA Senate at the end of 2008. The two agreements are based on the European Treaty and the juridical basis (art. 24 and art. 38) concerns foreign policy and cooperation in criminal maters. Given that these are policies falling under intergovernmental cooperation (second and third pillar) the Council did not find useful to consult the European Parliament which has nonetheless express its opinion during the signing of the agreements at the beginning of 2004.
Since several countries have already concluded bilateral agreements with the USA on the same matters and given that the European Union does not have an exclusive competence in the field, it has been necessary to foresee a complex juridical structure where the two agreements complement the 54 bilateral agreements concluded by the 27 Member States.
The objective of the Agreements is to fight organised crime and transnational terrorism between Europe and the United States via:
1 Greater efficacy of the fight against international crime,
2 strengthening of the European Judicial Area,
3 Strengthening of guarantees for the accused.
Concerning the legal and institutional aspects of the Agreements, they:
- do not substitute bilateral agreements but they complement them. As a consequence, the EU-USA agreements have a different impact in each Member State;
- include the use of modern telecommunication techniques for the cooperation between states;
- have a wider scope compared to bilateral agreements since criminals will be extraditable for all crimes punishable by at least one year in prison, no matter the terminology and no more on the basis of a listing of covered offences.
The agreement on extradition, shortens procedural timeframes by reducing the juridical requisites and the simplification of the documents to be presented in order to request an extradition. It is mutatis mutandis similar to the European Arrest Warrant (it is not by chance that the Framework Decision foresees the possibility that in case of multiple requests the Member States requested may prefer the request of the third state instead of that coming from a Member State – as long as the third state provides the same guarantees object of the agreements with the USA).
Thus, the Agreement does not provide explicitly for the possibility of extradition to be refused on ECHR grounds as recommended by the European Parliament in its “Report for a proposal for a recommendation of the European Parliament to the Council on EU-USA Agreements in judicial cooperation in criminal matters “.
This said, article 13 of the agreement on extradition states that extradition may be granted if death penalty is not imposed, or if imposed, not executed. This formula follows the jurisprudence of the Court of Strasbourg in precedent cases. The European Parliament has challenged such a formula since it does not offer a total guarantee of non applicability and do not make provision for death penalty from the United States towards individuals extradites.
Concerning the Agreements on mutual legal assistance in criminal procedures they give the opportunity to EU and U.S.A. law enforcement authorities to access bank accounts in the respective territories, for investigations concerning criminal offense, such as financial crime and terrorism.
Furthermore, the Agreements authorise the use of videoconferences for depositions during processes and allows USA authorities’ participation to unified investigation teams.
Regrettably the Agreement makes only a general reference to the protection of data. Concerning this, the European parliament expressed its concerns regarding measures related to the protection of data. It deems the fact that the Agreement does not define common principles on which to act with regard to (a) the correct use of data, (b) the integrity thereof and (c) the rights of the data subject to rectification and erasure if the data are inaccurate. The Agreement is based on Article 23 of the European Convention on Mutual Assistance in Criminal Matters of 29 May 2000, to which the United States are not a party as they are not part to the Council of Europe’s Convention on Cybercrime (signed in Budapest on 23 November 2001).
Leda Bargiotti
European Area of Freedom Security & Justice 