PUBLIC COUNCIL OF THE EUROPEAN UNION. Brussels, 6 May /03 LIMITE COPEN 44

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1 Conseil UE COUNCIL OF THE EUROPEAN UNION Brussels, 6 May /03 PUBLIC LIMITE COPEN 44 NOTE From : General Secretariat To : Working Party on cooperation in criminal matters (Experts on the European Arrest Warrant) No. prev. doc. : 7460/03 COPEN 28 Subject : Questions regarding implementation of the Framework Decision on the European Arrest Warrant, under each Member State's law - Consolidated list of questions: replies received by the Delegations of Belgium, Greece, Finland and the United Kingdom Delegations will find in the annex the replies received by the Delegations of Belgium, Greece, Finland and the United Kingdom to the consolidated list of questions contained in doc. 7460/03 COPEN /03 HGN/lwp 1 DG H III EN

2 ANNEX Table of contents Page General Comments:... 3 A: Replies to questions contained in doc /02 COPEN 57:... 4 B: Replies to additional questions contained in doc. 6018/03 COPEN 6: C: Replies to other additional questions received from delegations (doc. 7460/03 COPEN 28): /03 HGN/lwp 2

3 General remarks: FIN (general): The Presidency has invited the delegations to answer questions of the questionnaire attached to document 7460/03 COPEN 28 that they have not answered in their previous written contribution. The Finnish delegation would like to give the following provisional and non-exhaustive answers to the questions set out in pages 3 8 of the document COPEN 28, having in mind that the national implementation work is still carrying on: GR (General) As regards the questionnaire attached to doc. 7460/03 LIMITE COPEN 28, the Ministry of Justice has prepared the following answers. All the recipients should bear in mind that the implementation of the Framework Decision on the European Arrest Warrant in our national law is still under process. Thus, all the answers and procedures herein presented should not be considered as exhaustive and final but as open to alterations and specifications. UK (general): The Extradition Bill, which was introduced to the United Kingdom Parliament on 14 November, contains provisions to implement the European arrest warrant in the UK. The responses to the questions below are based on the relevant clauses in the Bill where appropriate. The current version of the Bill was published on 26 March 2003 and is available on the internet at: As the Bill remains subject to the Parliamentary process, it is possible that some of the provisions and/or the wording of the Bill may be amended before it becomes law. For the same reason, certain answers in this consolidated questionnaire may differ from the responses to earlier documents. 8935/03 HGN/lwp 3

4 A: QUESTIONS CONTAINED IN DOC /02 COPEN 57 A.1. Procedure A1(a) What authority will be the issuing judicial authority under your law? B.A.1.a. The judicial authority competent to issue warrants for the purposes of conducting a prosecution is the examining magistrate in charge of the case (Article 33 (1) of the draft bill). The judicial authority competent to issue warrants for the purposes of executing a sentence or a detention order is the public prosecutor (Article 33 (2) of the draft bill). FIN.A.1.a. Most likely the issuing judicial authority would be a prosecutor. GR.A.1.a. According to Article 455 of the Code of Criminal Procedure (C.Crim.Proc.), the issuing judicial authority will be the Public Prosecutor of the Court of Appeals of the district where the prosecution starts or the conviction has been announced. UK.A.1.a. Clause 149 of the Extradition Bill describes who will be the issuing judicial authority in the UK and reads as follows: (1) The appropriate judge is (a) in England and Wales, a District Judge (Magistrates' Courts), a justice of the peace or a judge entitled to exercise the jurisdiction of the Crown Court; (b) in Scotland, a sheriff; (c) in Northern Ireland, a justice of the peace, a resident magistrate or a Crown Court judge. 8935/03 HGN/lwp 4

5 A.1.(b) What authority will be designated as the executing judicial authority? B.1.A.b. The Council chamber in principle decides on the execution of European arrest warrants (Article 17 of the draft bill). If the requested person consents to surrender, the proceedings are concluded before the public prosecutor (Article 18 of the draft bill). The examining magistrate can also order non-execution where he sees a clear ground for refusal to execute a European arrest warrant (Article 13 of the draft bill). FIN.A.1.b. Most likely the executing authority would be the court. Although it would be task of the prosecutor to bring the case to the discretion of the court. GR.A.1.b. According to Article 450 of the C.Crim.Proc., the executing judicial authority will be the Judicial Council of the Court of Appeals. UK.A.1.b. Clause 66 of the Extradition Bill describes who will be the executing judicial authority in the UK and reads as follows: (1) The appropriate judge is (a) in England and Wales, a District Judge (Magistrates' Courts) designated for the purposes of this Part by the Lord Chancellor; (b) in Scotland, the sheriff of Lothian and Borders; (c) in Northern Ireland, such county court judge or resident magistrate as is designated for the purposes of this Part by the Lord Chancellor. (2) A designation under subsection (1) may be made for all cases or for such cases (or cases of such description) as the designation stipulates. (3) More than one designation may be made under subsection (1). 8935/03 HGN/lwp 5

6 A.1.(c) Will the decision on execution taken by the executing authority be open to one or more appeals? If so, to what authorities? B.A.1.c. The Council chamber's decision is open to appeal by the person subject to the European arrest warrant or by the public prosecutor's office. The appeal is heard by the Indictment chamber (Article 18 of the draft bill). Both the public prosecutor's office and the requested person can file an appeal against the Indictment chamber's decision with the Court of Cassation (Article 19 of the draft bill) FIN.A.1.c. The decision on execution would be open for appeal at least to one stage. Most likely Finland will limit appeal to one stage having in mind the required time limits. The ordinary courts of appeal in Finland are the appeals court (hovioikeus/hovrätt) and the Supreme court (korkein oikeus/högsta domstolen). GR.A.1.c. According to Article 451 of the C.Crim.Proc., the final judgment of the Judicial Council of the Court of Appeals on execution will be open to one appeal by the person whose extradition is requested or by the Prosecutor of the Supreme Court. The appeal must be lodged to the Second (B) Department of the Supreme Court. UK.A.1.c. Clauses 26 and 28 of the Extradition Bill set out the right of appeal to the High Court against the decision of the district judge (or equivalent). Clause 32 of the Bill gives an exceptional avenue of appeal to the House of Lords (except in Scotland) against the decision of the High Court. This is available only where permission is granted by the High Court or the House of Lords to bring such an appeal. Permission will be granted only where the decision involves a point of law of general public importance and it is judged that the point is important enough for the House of Lords to consider. 8935/03 HGN/lwp 6

7 A.1.(d) To what deadlines will the various stages of the procedure in (c) be subject, in order to comply with the time limits set in Article 17 of the Framework Decision? B.A.1.d. The Council chamber has 15 days from the date of arrest to arrive at a decision. Appeals against the Council chamber's decision must be lodged within a time limit of 24 hours, which runs from the date of the decision in the case of the public prosecutor's office and from the date of notification in the case of the requested person (the requested person is notified of the decision within 24 hours of the decision being made). The Indictment chamber has 15 days from the date of appeal in which to issue its decision (Article 18 of the draft bill). The Indictment chamber's decision may be appealed to the Cassation Court within a time limit of 24 hours, which runs from the date of the decision in the case of the public prosecutor's office and from the date of notification in the case of the requested person (the requested person is notified of the decision within 24 hours of the decision being made). The Cassation Court rules within 15 days from the date of the appeal. If the Cassation Court refers the case back to the Indictment chamber for reconsideration, the Indictment chamber concerned must rule again within 15 days of the Cassation Court's decision. If the Cassation Court rejects the appeal, the Indictment chamber's decision is immediately enforceable (Article 19 of the draft bill). It follows from the foregoing that the total duration of the procedure, including appeals by the requested person or the public prosecutor's office, should be no longer than 60 days plus 4 x 24 hours at most. The procedure will only exceed the 60-day period provided for in the Framework Decision in the event of two appeals and a referral for reconsideration. Even in this case, it is still considerably shorter than the time limit of 90 days provided for in the Framework Decision for specific cases where a warrant cannot be executed within 60 days. FIN.A.1.d. The deadlines for the different stages of the appeals procedure are not fixed yet. Most likely they will not be fixed very strictly in the law as some flexibility might be needed. The time limits will probably be more or less guiding. On the other hand the consequences of not meeting the time limits required by the framework decision would be expressly mentioned. 8935/03 HGN/lwp 7

8 GR.A.1.d. According to Article 451 of the C.Crim.Proc. and the relevant jurisprudence, the appeal must be lodged within 24 hours after the judgment has been issued. The Supreme Court as a council brings a judgment within eight (8) days. However, the requested person as well as the Prosecutor has the right to ask the Judicial Council for an adjournment of the hearing. The Judicial Council can adjourn the hearing for up to eight (8) days (Art. 449 of the C.Crim.Proc.). The time limits described in these provisions seem in full compliance with the time limits set in Art. 12 of the Framework Decision. UK.A.1.d. Under clause 31 of the Extradition Bill rules of court will determine the period within which the High Court appeal must begin. These rules will enable the appeal to be finally determined within the 60-day limit set out in Article 17(3) of the Framework Decision. Where in specific cases it is considered appropriate for the House of Lords to hear an appeal against the decision of the High Court the time limit may, where necessary, be extended by 30 days, as described in Article 17(4). 8935/03 HGN/lwp 8

9 A.1.(e) How will wanted persons be dealt with during the procedure? Must they be held in detention? May they remain at liberty or be released? If so, under what conditions? B.A.1.e. The requested person is brought before the examining magistrate for a hearing within 24 hours of being arrested. At the end of the hearing, the examining magistrate decides whether the person should be placed or remain in custody. The examining magistrate may also order the person's conditional release or release on bail. The examining magistrate's decision stands for the duration of the procedure and there is no appeal against it (Article 12 of the draft bill). The examining magistrate also has the power to order the conditional release or the release on bail of the person at any time during the procedure. Likewise, the requested person may at any time ask the examining magistrate to exercise that power. If the examining magistrate fails to act within 15 days of a request for conditional release or release on bail or if he rejects the request, the person concerned can petition the Council chamber for a decision on whether or not he should remain in custody (Article 21 of the draft bill). FIN.A.1.e. The person may be detained during the extradition procedure. However, they may also remain at liberty or be released, but this would most likely be rare in practice. It would also be possible to limit the freedom of the person according the rules of chapter 2 of the coercive measures act (450/1987) with which it is possible e.g. to order the person not to leave certain geographical area. GR.A.1.e. According to Article 445 of the C.Crim.Proc., the President of the Court of Appeals, as soon as he/she receives the European Arrest Warrant, must order the arrest of the wanted person and the seizure of all exhibits. The arrest is executed with the due care of the Prosecutor of the Court of Appeals. The arrested person will be held in detention by order of the Prosecutor of the Court of Appeals, as soon as the latter certifies the identity of the arrested person (Article 446 of the C.Crim.Proc.). 8935/03 HGN/lwp 9

10 The person under detention has the right, by questioning his/her identity, to resort to the Judicial Council of the Court of Appeals, within 24 hours after he/she has been brought before the Prosecutor of the Court of Appeals. The Judicial Council of the Court of Appeals, after having heard the person under detention and his legal counsel, issues an irrevocable judgment. The requested person is held in detention during the whole period of the relevant procedure. However (according to Art. 449 (2) of the C.Crim.Proc.), the Judicial Council of the Court of Appeals, in every stage of the relevant procedure, can order the provisional release of the person under detention, according to the conditions set by certain Articles of the C.Crim.Proc [i.e. the conditions of Articles 296 (purpose of restriction measures), 297 par. 1 & 2 (bail), 298 (reasons for the replacement of restriction measures with detention), (which also refer to bail and the relevant procedure)]. Furthermore, any doubt or objection concerning the detention of the requested person is resolved by the Judicial Council of the Court of Appeals. The requested person has to be notified to appear to the procedure 24 hours before. Against the decision of the Judicial Council, the Prosecutor or the requested person is allowed to an appeal before the Supreme Court [Art. 452 (3) of the C.Crim.Proc.]. As it is already mentioned, the aforementioned procedure is receptive to alterations and/or simplifications. UK.A.1.e. When a person is arrested on the basis of an EAW he will be kept by the police in custody until he is brought before a district judge (or equivalent) for an initial hearing. From this hearing onwards (in accusation cases only) the person will be subject to the presumption in favour of bail which usually applies in criminal law cases in the UK. The relevant judge will (in all cases) have the power to either remand the person on bail or in custody as he considers appropriate. The judge would naturally take into consideration the nature and seriousness of the offence in question, the likelihood to abscond, etc. Where a judge or court decides to grant a person bail he/it may attach conditions that are considered appropriate in any case (such as the surrender of a person's passport, the direction for a person to live at a particular address, that an amount of money is paid in surety against the person's bail, etc). 8935/03 HGN/lwp 10

11 Where a person is remanded in custody the appropriate judge or court can subsequently grant the person bail where it is considered appropriate. Where the person is bailed the relevant judge or court can only remand the person in custody where the person does, or is likely to, break the conditions of bail. 8935/03 HGN/lwp 11

12 A.1.(f) By what authority/body/court will a decision be taken in the event of any clash between a European arrest warrant and an extradition request from a non-member country? B.A.1.f. Bearing in mind the responsibilities of the executive in extradition proceedings, it will be for the government to decide which of two requests takes precedence (Article 31 of the draft bill). FIN.A.1.f. Decisions in cases of competing requests of a member state and a non-member state would be taken by the ministry of justice. GR.A.1.f. As to the existing legislation and jurisprudence, the competent authority to decide upon a clash between the European Arrest Warrant and an extradition request from a nonmember country, is the Ministry of Justice. The Ministry of Justice will decide with due consideration to all circumstances, in particular those referred to in paragraph 1 of Art. 16 of the Framework Decision as well as those referred to in Art. 439 of the C.Crim.Proc.. According to the latter Article, if two or more states request extradition for the same offence, extradition is ordered in preference either to the state where the offender is a national or to the state where the offence has been committed. If the simultaneous requests refer to different offences, extradition is ordered in preference to the state where, according to Greek Law, the most serious offence has been committed or, in the case where all the offences are equally serious, to the state whose request was the first to be received. The undertaking of a state to re-extradite the offender for the rest of his offences is always taken into due account. This subject too is open to consideration and there might be a change of authority in the future. UK.A.1.f. Clause 181 of the Extradition Bill provides that the Secretary of State (in Scotland, Scottish Ministers) will decide in the event of a clash between an EAW and an extradition request from a non-member country. He will, in making this decision, take into account the relative seriousness of the offences concerned, where they were committed, the date the EAW and request were issued and whether the cases are accusation or conviction cases. 8935/03 HGN/lwp 12

13 A.1.(g) How do you intend time limits to run if surrender is postponed on account of circumstances beyond your control or for humanitarian reasons, in accordance with Article 23(3) or (4)? B.A.1.g. If the surrender of a requested person is prevented by force majeure, the public prosecutor's office will immediately contact the competent authority in the issuing Member State to agree on a new surrender date. The new date will be at the latest 20 days after the date of the decision to execute the request. If the requested person is still in custody on expiry of that time limit, he will be released (Articles 23 (1) and (2) of the draft bill). If surrender is temporarily postponed for serious humanitarian reasons, the public prosecutor's office must verify that the serious humanitarian reason exists and ascertain when it ceases to exist. When the reason has ceased to exist, the public prosecutor's office will immediately contact the competent authority in the issuing Member State to agree on a new surrender date. The new date will be at the latest 10 days after it has been ascertained that the serious humanitarian reason no longer exists. If the person is still being held in custody on expiry of that time limit, he will be released (Article 24 of the draft bill). FIN.A.1.g. Cases where the surrender is postponed on account of circumstances beyond our control or for humanitarian reasons in accordance with Article 23(3) and (4) are, based on our understanding, without any problems as regards the running of time limits. The material decision on surrender is already made and the article itself clearly states that in those cases a new surrender date shall be agreed and the surrender shall take place within 10 days of the new date thus agreed. GR.A.1.g. We intend to comply with the procedure and timetable described in Art. 23 (3) and (4). Further specification is being considered by the competent authorities that deal with the implementation of the Framework Decision in our national law. 8935/03 HGN/lwp 13

14 UK.A.1.g. The relevant clauses of the Extradition Bill provide that surrender is to take place within 10 days of a final decision or, where that is not possible, within 10 days of a new date agreed with the issuing authority, as set out in Article 23(3). For Article 23(4), clause 25 of the Bill allows a judge to postpone the process in the event of the person suffering from a physical or mental condition to the extent that it would be unjust or oppressive to extradite him. The judge is required to discharge the person or postpone the process until such time as it no longer applies. 8935/03 HGN/lwp 14

15 A.1.(h) How do you plan to make use of the SIS? B.A.1.h. Alerts for requested persons may be issued in the SIS in all cases, whether their whereabouts are known or not. If the person's whereabouts are known, the European arrest warrant can also be addressed directly to the judicial authority of the executing State. If the person's whereabouts are not known, other transmission channels can be used cumulatively (e.g. the EJN) (Article 34 of the draft bill). FIN.A.1.h. Our national SIS office is located at the National Bureau of Investigation. SIS channel would be the most common way of transmitting the European arrest warrants. Our understanding is that while using the SIS the arrest warrant must be translated into the language of the requested state only in cases where the location of requested person is known. In other cases the language will be the same that is used at the moment in the article 95 requests in SIS. GR.A.1.h. SIS is intended to be used in the way illustrated in Art. 9 of the Framework Decision and in accordance with the purpose/objectives and means stated in Art. 93 et sq. of the Schengen Agreement. UK.A.1.h Once the UK is fully participating in the SIS this is intended to be the primary method of transmission for EAWs from the UK. We would hope to receive most EAWs by means of the SIS with a hard copy following in the event of an arrest. 8935/03 HGN/lwp 15

16 A.2. Conditions A.(2a) Will there be any check of the executing judicial authority and, if so, what kind of check will the executing judicial authority make where a European arrest warrant is for one of the 32 offences listed in Article 2(2), in the absence of any verification as to double criminality? B.A.2.a. Yes. The executing judicial authority will check whether the conduct described in a European arrest warrant constitutes any of the 32 offences on the list. The executing judicial authority will confine itself here to a criminological assessment of the facts (Article 17 of the draft bill) so as to avoid improper reference to the list. FIN.A.2.a. Our understanding is that the main rule is that the executing judicial authority would rely on the information given by the issuing authority. If it would appear that the given information is manifestly incorrect, the executing authority would examine the issue. GR.A.2.a. According to Art. 450 of the C.Crim.Proc., the Judicial Council of the Court of Appeals will examine and decide upon whether the offence imputed to the requested person is covered by the scope of Art. 2 (2) of the Framework Decision. UK.2.A. The executing judicial authority will make no specific check where an EAW is for one of the 32 Article 2(2) offences. However, the UK central authority (to be the National Criminal Intelligence Service and, additionally, the Crown Office in Scotland) will make an administrative check of all incoming EAWs before they are certified under clause 2 of the Extradition Bill to ensure that all the relevant parts of the warrant have been completed as appropriate. It will then be for the relevant judge and/or court to decide whether surrender is to proceed on the basis of the warrant. 8935/03 HGN/lwp 16

17 A.(2b) Do you intend to incorporate into your law all of the optional grounds for refusal in Article 4 of the Framework Decision? As optional or mandatory grounds for refusal, from the judicial authority's point of view? B.A.2.b. Yes. The grounds for non-execution set out in Article 4 of the Framework Decision are incorporated in the draft bill as optional grounds for refusal, except for the grounds described in Article 4(1) and (4), which have been made mandatory grounds for refusal since these are not assessable by the judicial authorities. FIN.A.2.b. Our intention is to incorporate into our national law more or less all the optional grounds for refusal. Some of them will be placed into the mandatory grounds for refusal. However we might limit the scope of some optional grounds for refusal. E.g. the scope of article 4.6 might not cover the persons who are just staying in Finland. GR.A.2.b. This is an issue of political considerations. However, there is high probability that all the optional grounds for refusal (provided for in Art. 4 of the Framework Decision) will be incorporated into our national law. As for the second sub-question, for now, we will keep a reservation upon it. UK.A.2.b. Article 4(1) to be incorporated into UK law in as much as it is mandatory for the judicial authority to refuse to execute the EAW unless: (i) the offence is listed in Article 2(2) and punishable by a custodial sentence for a maximum of at least 12 months in the issuing Member State; or (ii) it is punishable by a custodial sentence for a maximum of at least 12 months in the issuing Member State and constitutes an offence under UK law. Article 4(2) to be incorporated into UK law in as much as it is mandatory for the judicial authority to adjourn proceedings until the domestic charge is disposed of, withdrawn, the prosecution discontinued, etc (see clause 22 of the Bill). In the event of conviction or acquittal the "double jeopardy" rule may oblige the judicial authority to refuse to execute the EAW. 8935/03 HGN/lwp 17

18 Article 4(3) to be incorporated into UK law in as much as it is mandatory for the judicial authority to refuse to execute the EAW where the person has previously been convicted or acquitted for the same conduct. Article 4(4) not to be incorporated into UK law. Article 4(5) to be incorporated into UK law in as much as it is mandatory for the judicial authority to refuse to execute the EAW where surrender is barred by reason of the rule against "double jeopardy" (clause 12 of the Extradition Bill). This would include where a person has been finally judged by a competent court in a third state. Article 4(6) not to be incorporated into UK law. Article 4(7) to be incorporated into UK law in as much as it is mandatory for the judicial authority to refuse to execute the EAW (clause 63 of the Extradition Bill refers): (a) where the conduct occurred outside the issuing Member State and UK law does not allow prosecution for the same offence when committed outside its territory; & (b) where any part of the conduct occurred in the UK and that conduct does not constitute an offence under UK criminal law. 8935/03 HGN/lwp 18

19 A.(2c) Does Article 1(3) on respect for fundamental rights warrant any special transposition? What are your intentions in this respect? B.A.2.c. Yes. In order to give proper effect to Article 1(3) of the Framework Decision, a ground for refusal of surrender based on failure to respect fundamental rights and legal principles as enshrined in Article 6 of the TEU has been included in Article 5 of the draft bill. It goes without saying that the Belgian judicial authority responsible for deciding on the execution of a warrant should not find itself with the task of assessing the political situation in the other Member States and that the pertinent checks will be strictly limited to a review of the specific circumstances of the case giving rise to the European arrest warrant. FIN.A.2.c. The questions related to article 1(3) will be reflected in the national legislation. The exact formulation is not decided yet. However it is clear that surrender must be refused if the are objective reasons to believe that the human rights would be violated. GR.A.2.c. According to national law, there is no strict legal necessity for a special transposition of Art. 1(3) of the Framework Decision. Still, it is most likely that there will be a relevant provision. UK.A.2.c. Clause 21 of the Extradition Bill, which contains provisions on human rights, states: (1) If the judge is required to proceed under this section (by virtue of section 11 or 20) he must decide whether the person's extradition would be compatible with the Convention rights within the meaning of the Human Rights Act 1998 (c. 42). (2) If the judge decides the question in subsection (1) in the negative he must order the person's discharge. (3) If the judge decides that question in the affirmative he must order the person to be extradited to the category 1 territory in which the warrant was issued. 8935/03 HGN/lwp 19

20 A.(2d) Do you intend to avail yourself of the declaration options under Articles 27 (prosecution for other offences) and 28 (subsequent surrender or extradition), whereby your country's consent may be presumed to have been given in the event of prosecution for other offences or of subsequent surrender or extradition? B.A.2.d. No. FIN.A.2.d. We do not intend to avail ourselves of the declaration options under articles 27 (prosecution for other offences) and 28 (subsequent surrender or extradition). We find it important that the consent is given on case by case basis. GR.A.2.d. At present, this issue is not yet mature enough to be answered. UK.A.2.d. The UK does not currently intend to make declarations under either Article 27 or /03 HGN/lwp 20

21 B. ADDITIONAL QUESTIONS CONTAINED IN DOC. 6018/03 COPEN 6 B.1. What interpretation will you give to Article 16.4 in your national legislation: "This Article shall be without prejudice to Member States' obligations under the Statute of the International Criminal Court"? B.B.1. The provision is self-evident and therefore not being specifically transposed. It means that in the event of a conflict between a request from the International Criminal Court and a European arrest warrant, the matter should be settled mutatis mutandis in accordance with Article 90 of the Statute of the International Criminal Court. In other words, a European arrest warrant has the same force as a conventional extradition request. FIN.B.1. Article 16.4 is interpreted in such a way that there should not be any discrepancy between national legislation implementing the Framework Decision and the Statute of the International Criminal Court (ICC). In national legislation it probably will be stated that in a situation of multiple requests where one of the requests is from the ICC, the request of the ICC will be dealt with before other requests. The reason for this is that it would be most likely that extradition would be granted to the ICC. GR.B.1. [Greece ratified the Statute of International Criminal Court through Law nr 3003 on 08/04/2002] In the event of multiple requests Greece intends to maintain the basic aspects of its policy so far. In particular, the decision will be taken with due consideration to all circumstances referred to in Article 16 of the Framework Decision as well as those referred to in Article 439 of the Criminal Procedure Code (seriousness and place of the offence, nationality of the offender, which request was the first to be received). The determination by the International Criminal Court that the case in respect is admissible, according to Article 90.2,3 of the Statute, will also be considered. 8935/03 HGN/lwp 21

22 UK.B.1. The UK's obligations to the International Criminal Court are covered by the International Criminal Court Act This will be unaffected by the provisions in the Extradition Bill concerning how two competing European arrest warrants should be handled or how conflicts between a European arrest warrant and a request presented by a third country should be resolved. 8935/03 HGN/lwp 22

23 B.2. What is the role of "a central authority"? (Art. 7.1) If there happens to be several central authorities, what is their respective role? (Federal State, specialised judicial organisation, speciality principle etc.) B.B.2. The preliminary draft Belgian legislation designates the Federal Department of Justice as the central authority to assist the judicial authorities. Any help provided by it will be concerned with practical administrative arrangements for forwarding and receiving individual European arrest warrants. FIN.B.2. At this stage Finland has the intention to name only one central authority which would be the Ministry of Justice. Finland would clarify that the authority will be named especially in order that authorities of other Member States can contact the central authority in questions relating to European arrest warrants. Where necessary, the central authority could transmit the warrant to the competent Finnish authority. GR.B.2. According to the existing legislation for extradition, the competent authority to transmit the extradition request as well as any relevant official correspondence to the executing judicial authority is the Minister of Justice (Article 443, 2 of the Criminal Procedure Code). The Minister of Justice will most probably retain these assistant responsibilities as regards the implementation of the European Arrest Warrant. UK.B.2. In the UK the central authority will receive and send EAWs. The authority will also verify that each EAW received is completed and is in English before it is used to execute an arrest and/or in the related judicial process. The National Criminal Intelligence Service is intended to be the central authority for the UK and, additionally in Scotland only, the Crown Office will perform this role. This allows for the functions to be fulfilled in accordance with the different police and criminal justice systems in Scotland and the rest of the UK (England & Wales and Northern Ireland). 8935/03 HGN/lwp 23

24 B.3. What sort of provisions have to be adopted in your national legislation to ensure that consent (or renunciation) are established to show that the person concerned has expressed them voluntarily and in full awareness of the consequences? (Art. 13.2) What are the current procedural requisites in national law? (Art.13, 2.3.4) (right to legal counsel, hearing, recording of consent or renunciation). B.B.3. There was already a simplified procedure under Belgian extradition law in the event of a person consenting to be extradited to another Member State. It is important to ensure that people have consented of their own free will and are aware of the consequences of doing so (see the present Article 13 of the preliminary draft legislation). Consent can thus only be validly obtained before the public prosecutor and in the presence of the person's lawyer, after the person has been informed of the consequences of giving it (in particular that consent entails renunciation of entitlement to the speciality rule). Consent has to be formally placed on record. The record also shows that the person concerned has given his or her voluntary, informed consent. Consent may be given at all stages of the proceedings. It should be pointed out that, at the time of adoption of the Framework Decision, Belgium made a statement that consent may be withdrawn by the person concerned up until the time of actual surrender. FIN.B.3. The national legislation would stipulate that the consent should be given personally before the court and the consent should be noted in record of the court. The requested person would have the right to legal counsel. 8935/03 HGN/lwp 24

25 GR.B.3. [Greece ratified the convention on simplified extradition between the member States of the European Union through law nr 2787 on the 7 th of November 2000.] In case of a person s consent, Greece intends to maintain its policy so far by implementing the regulations provided in articles 6 and 7 of the Convention on simplified extradition as well as those provided in articles 447 and 448 paragraph 1of the Criminal Procedure Code. More specifically, article 447 of the Criminal Procedure Code provides that the person sought has the right to be informed of the existing documents, either personally or through his legal counsel. In addition paragraph 1 of article 448 of the Criminal Procedure Code provides that during the hearing before the judicial Council of the Court of Appeals, the requested person is entitled to a legal counsel as well as to a translator. These regulations, which seem in full compliance with the provisions of article 16 of the Framework Decision, ensure that the requested person will be adequately informed of the consequences of its consent. Besides, the policy of the Greek courts to keep official records of the hearing, secures the possibility to establish whether the person concerned has expressed its consent voluntarily and in full awareness of the consequences, or not. UK.B.3. When a person arrested on the basis of an EAW appears before a judge at the "initial hearing", the judge is required (clause 8 of the Extradition Bill) to: (a) inform the person of the contents of the warrant, (b) tell the person that he may consent to his surrender, (c) explain the consequences and procedure connected with consent, and (d) explain that consent, once given, is irrevocable and must be given before a judge. Clause 44 of the Bill gives further provision for consent to surrender. This stipulates that consent must be given before a judge, recorded in writing and is irrevocable. A person would always be entitled to appropriate legal representation in hearings connected with the execution of an EAW. Clause 44 also states that consent to extradition may only be given by a person who is either legally represented at the time, or has rejected or forfeited his right to legal aid. 8935/03 HGN/lwp 25

26 B.4. Article 17 stipulates that Member States which cannot respect the time limits "shall inform Eurojust, giving the reasons for the delay." (Art. 17.7). Member States also inform the Council "with a view to evaluating the implementation of the Framework Decision at Member State level". How will this information be delivered? B.B.4. (a) Informing Eurojust Should the 90-day extended time limit be exceeded, the public prosecution service will inform the federal prosecutor, who will in turn inform Eurojust. Under the future legislation to give effect to the Eurojust Decision, the federal prosecutor is to act as Eurojust's sole communication partner. (b) Informing the Council of the European Union This provision is not being specifically transposed into Belgian law. FIN.B.4. The information would be delivered by any practical means. GR.B.4. At present, a final decision concerning this issue cannot be reached. However, it is possible that Eurojust will be informed by the Minister of Justice, who according to what we have already stated, will undertake assistant responsibilities as regards the administrative transmission and reception of the official correspondence, relating to the European Arrest Warrants. In case of repeated delays (paragraph 7b of article 17 of the Framework Decision) the Council will probably be informed by the Greek delegation. UK.B.4. This will be achieved by administrative means, the precise details of which have not yet been decided upon. 8935/03 HGN/lwp 26

27 B.5. According to what national scheme will the European arrest warrant be translated into the official language of the executing Member State? (Art. 8.2) Will you require an official translation or not? B.B.5. Apart from a translation in one of its three official languages (Dutch, French and German), Belgium can also accept an English translation of the warrant. An official translation is not required (under the present Article 2(5) and (6) of the preliminary draft legislation). FIN.B.5. The arrest warrant would be translated by the authority involved in the procedure or by an official translator. Finland would require the similar scheme to be used also with incoming European arrest warrants. GR.B.5. The European arrest warrant will be formally translated into the official language of the executing Member State by the competent department of the Ministry of Foreign Affairs. Greece will require an official translation of the European arrest warrant by the issuing Member State. UK.B.5. Where necessary, translation of an EAW issued in this country will be undertaken here into a language acceptable to the executing Member State. All EAWs received in the UK will be required to be in English (or accompanied by a translation into English). 8935/03 HGN/lwp 27

28 B.6. When the place where the requested person has escaped is unknown and a transmission may be effected via the SIS or the secure communications system of the European Judicial Network. What are your suggestions as to the appropriate language and the cost for transmission in such a case? B.B.6. Belgium is in favour of continuing to apply the SIS and EJN arrangements as they operate at present. On the forwarding of the European arrest warrant, see B.B.5. FIN.B.6. The language would be the same as is currently used in SIS. Expenses are regulated by article 30 of the framework decision. GR.B.6. Greece would appreciate the receipt of any information in the official languages of the European Union. The costs should be born according to the provisions of Article 30 of the Framework Decision. UK.B.6. It would be sensible in these circumstances for an EAW to be issued in the language(s) which are likely to be most widely acceptable by Member States. If the person were then located and the EAW were not in a language acceptable to the executing Member State, an acceptable translation could then be forwarded. No substantial additional cost implications are envisaged. 8935/03 HGN/lwp 28

29 B.7. How do you plan to make use of the SIS? (Art. 9) How long will central authorities and the SIS keep memory of alerts issued according to Article 9.2? B.B.7. The SIS provides the normal channel for European arrest warrants. A warrant may therefore in all cases be reported in an SIS alert (under the present Article 33(3) of the preliminary draft legislation). Where the wanted person's whereabouts are unknown, the various methods of forwarding the European arrest warrant (SIS, EJN etc.) are left to the discretion of the issuing authority. Those different channels are not mutually exclusive and can be used in combination (under the present Article 33(5) of the preliminary draft legislation). The current system should continue to apply for European arrest warrants. FIN.B.7. The situations where the SIS is used would not differ from the present situation. The same would apply to keeping memory of alerts. GR.B.7. SIS is intended to be used in the way illustrated in Article 9 of the Framework Decision and in accordance to the purpose/objectives and means stated in article 93 et sq of the Convention implementing the Schengen Agreement We don t have a certain suggestion as to the duration of the alerts issued according to Article 9,2. However we believe that central authorities should keep memory of the alerts the longer is possible. UK.B.7. It is expected that the SIS/Sirene network will be the principal means of transmission of the EAW by the UK. The Sirene Bureau will be located at the National Criminal Intelligence Service. The UK Sirene Bureau will have a co-ordinating role for the whole of the UK in relation to the EAW. Normally the alert will be deleted in accordance with the rules contained in the Schengen Convention. Where the UK issues or takes coercive action in relation to an alert issued by another Member State, a separate record will be kept by the Sirene Bureau for a period of seven years. 8935/03 HGN/lwp 29

30 B.8. How do you plan to cooperate with the European Judicial Network? (Art. 10) According to what criteria will the issuing judicial authority will use the secure telecommunications system of the European Judicial Network? (Art. 10.2) B.B.8. In accordance with Article 10(1) of the Framework Decision, the present Article 33(4) of the preliminary draft legislation stipulates that the issuing authority may turn to the European Judicial Network to make the enquiries necessary in order to ascertain the competent authority in the executing Member State. In addition, the warrant may be forwarded via the secure telecommunications system of the European Judicial Network. That method of forwarding is left to the discretion of the issuing authority and does not preclude other channels (under the present Article 33(5) of the preliminary draft legislation). FIN.B.8. The co-operation with the European Judicial Network would take place whenever it is needed and practical. The telecommunications system of the EJN would be used when it is available and would be the most practical way. This is assessed on case by case basis. GR.B.8. Greece intends to comply with the provisions of Art. 10 of the Framework Decision and cooperate with the European Judicial Network in such cases where the executing judicial authority is unknown. The necessity for the use of the secure telecommunications system of the European Judicial Network will be considered according to the circumstances of each case. UK.B.8. The UK will rarely use the EJN for transmission of the EAW. We will fully comply with all requests received through this channel from other Member States. 8935/03 HGN/lwp 30

31 B.9. On what occasions do you plan to use the services of Interpol? (Art. 10.3) B.B.9. Use of Interpol is one among a number of proposed channels and does not preclude forwarding via others. It is given as a secondary option, however, with the system specific to Member States taking precedence (Article 33(5) of the preliminary draft legislation). FIN.B.9. Services of Interpol would be used when the whereabouts of the person is not known and it is possible that he/she might be outside the states applying the SIS. There would be no difference compared to present situation. GR.B.9. Greece intends to comply with the provisions of Art of the Framework Decision and use the services of Interpol in such cases where the executing judicial authority is unknown and the use of SIS is not possible. UK.B.9. It may be necessary to use the Interpol network for a temporary period before we go live on the SIS, the alternatives are being considered. It may also be necessary to use the Interpol network for communications with Gibraltar. 8935/03 HGN/lwp 31

32 B.10 From an operational viewpoint, how do you plan to "forward the European arrest warrant by any secure means " allowing the executing Member State to establish its authenticity? (Art & 5) (use of cryptography? ) B.B.10. This option is available under Article 33(5) of the preliminary draft legislation. The method is left to the discretion of the issuing authority and does not preclude forwarding via by other channels. However, the precise meaning of the wording is not spelled out, in order to allow for any future developments in communications technology. As things stand, Belgium takes the provision to refer to the use of an encrypted fax machine. Article 10(5) of the Framework Decision is not being specifically transposed. FIN.B.10. The forwarding of arrest warrants could take place using the conventional means of electronic and non-electronic ways of transmission. Possible problems regarding the authenticity of documents can, if they occur, be dealt with afterwards by direct contacts between the authorities involved. GR.B.10. At present this issue cannot be given a definite answer. However, Greece will take under consideration any available secure means capable of producing written records under conditions allowing the executing Member State to establish the authenticity of the European Arrest Warrants. UK.B.10. We will do this by (jpeg attachments) through the Sirene network, or by secure fax to another Sirene Bureau. We understand that the Sirpit solution currently being introduced across the Sirene network will provide secure means of transmission. If another Member State requires receipt of the original document, we will use diplomatic channels. 8935/03 HGN/lwp 32

33 C. OTHER ADDITIONAL QUESTIONS RECEIVED FROM DELEGATIONS (DOC. 7460/03 COPEN 28) C1. Article 29 of the Framework Decision provides for the seizure and handing over of property in connection with a European arrest warrant. How do Member States intend to implement these provisions? Are any specific issues or problems anticipated in the operation of these powers? B.C.1. At the request of the issuing judicial authority or of its own accord, the court in chambers decides whether items which may serve as evidence in securing a conviction or which constitute proceeds of an offence should be seized and handed over. It may, if appropriate, order them to be returned. It also rules on claims by third parties in possession of such items or others with rights in respect of them. The procedural and substantive conditions for seizure are the same as in domestic preliminary proceedings (under the present Article 26 of the preliminary draft legislation). The procedure is the same as for extradition. No particular problems are anticipated. FIN.C.1. Our intention is to include provisions on seizure and handing over of property in connection with the European arrest warrant into national law. The competent authority could in accordance with the national provisions on mutual legal assistance and search and seizure also without the request of the issuing authority take these measures. GR.C.1. There are several Articles in our Criminal Procedure Code, which provide for the seizure and handing over of all evidences. In brief, according to Article 445(1) of the Criminal Procedure Code, the President of the Court of Appeals may order the confiscation of any property related to the crime. Additionally, Article 461 of the Criminal Procedure Code provides the handing over of the confiscated property on demand of the issuing authority. The handing over of the property is regulated on the basis of the principle of mutuality and on condition that the property will be returned. These provisions are in full compliance with the provisions in Article 29 of the Framework Decision. Thus, we believe that no problems will arise to the operation of these powers. 8935/03 HGN/lwp 33