European Parliament recommendation to the Council on the EU-USA agreements on judicial cooperation in criminal matters and extradition.

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European Parliament
Texts Adopted by Parliament
Provisional Edition : 03/06/2003
EU-USA judicial cooperation agreement



European Parliament recommendation to the Council on the EU-USA agreements on judicial cooperation in criminal matters and extradition (2003/2003(INI))

The European Parliament,

- having regard to the proposal for a recommendation to the Council tabled by Kathalijne Maria Buitenweg, on behalf of the Greens/EFA Group (B5-0540/2002),

- having regard to Rules 49(3) and 107 of its Rules of Procedure,

- having regard to the report of the Committee on Citizens' Freedoms and Rights, Justice and Home Affairs (A5-0172/2003),

A. having noted the draft agreements between the European Union and the United States of America on extradition and on mutual legal assistance (1), which were debated at the meeting of the Justice and Home Affairs Council of 8 May 2003,

B. whereas the Council declassified the texts of the two draft agreements just one month before they were due to be signed, leaving Parliament insufficient time to debate them adequately,

C. whereas, since the agreements are the first agreements on extradition and judicial cooperation to be concluded between the EU as a whole and a third country, they must serve as a model for negotiations for any agreements to be concluded with other third countries,

D. strongly convinced that cooperation between the EU and the US should be truly mutual and that the US should cooperate by handing over evidence in order to ensure that European citizens who have committed a crime (in part) on European territory are tried in their own country instead of being extradited to the US,

E. whereas the judicial system of some US States does not offer the same level of guarantees that the ECHR and EU measures seek to provide for EU Member States,

F. whereas it is paradoxical to sign an agreement with the United States when several European Union citizens are still being held at the US military base at Guantánamo Bay, quite unlawfully under both US and international law and without the slightest guarantee that they will receive a fair trial,

G. recalling its resolution of 13 December 2001 on EU judicial cooperation with the United States in combating terrorism (2) in which it indicated the principles of which account must be taken in the negotiations on judicial cooperation between the European Union and the United States of America, including:

(a) full respect for the European Convention on Human Rights and, consequently, for the minimum procedural guarantees with regard to a fair trial, as confirmed by the European Court of Human Rights, which are common to all the Member States, irrespective of their legal system,

(b) the fact that authorisation must never be given for the extradition from the Member States of the European Union to the United States of persons who would be brought before a military tribunal,

(c) the fact that extradition must not be possible if the accused might face the death penalty,

(d) the need to ensure that data-protection standards must be proportionate, efficacious and limited in time and not to authorise any provision requiring the storage of data which might infringe a right and a guarantee, whatever form they might take,

H. having carefully noted the information about the progress of the negotiations which the Council Presidency gave to its Committee on Citizens' Freedoms and Rights, Justice and Home Affairs on 17 February 2003 and to the House on 14 May 2003,

I. welcoming the Council's decision to declassify the texts of the two draft agreements before their signature, with the result that they may be debated in the European Parliament and in the national parliaments,

As regards the political scope of the agreements

1. Takes the view that, if ratified, and if account is taken of the concerns set out in this recommendation, these initial agreements on extradition and judicial cooperation in criminal matters would constitute a significant political step forward in at least three respects:

- with respect to the efficacy of the fight against international crime, since they would cover two important areas of the world, Europe and the United States, and would consequently clear the way for other agreements of a similar nature with other countries, such as Russia, and would also indirectly strengthen the implementation of the UN Convention Against Transnational Organised Crime,

- with respect to the strengthening of the European Judicial Area, since the implementation of the agreements would oblige the Member States and, before long, the applicant countries to tighten up their relations and cooperation by implementing, initially among themselves, the European conventions signed but not yet ratified which serve as the basic texts for the agreements with the United States; furthermore, the requirement to respect international obligations should encourage the Member States once and for all to regulate data-protection standards in a less chaotic and less arbitrary manner,

- with respect to the strengthening of guarantees for the accused, since the agreements will confirm the guarantees already laid down in the bilateral agreements between the Member States and the United States, while adding thereto the guarantees deriving from European legislation;

As regards the legal and institutional aspects

2. Recommends that the agreements should refer explicitly to Article 6 of the EU Treaty and to the Charter of Fundamental Rights of the European Union so that the provisions of those agreements are binding: firstly, because the Union may not lawfully negotiate in areas outside the powers conferred and constraints imposed on it by its founding treaty and, secondly, on grounds of good faith towards the United States which, being a party neither to the European Convention nor to the control mechanisms, must not be surprised by the constraints on the Union deriving therefrom; believes that an explicit reference to the Charter of Fundamental Rights (where appropriate, in the explanatory notes to the agreements) would also be more than appropriate, given that it was formally proclaimed at the Nice European Council on 7 December 2000;

3. Recommends that the agreements should explicitly exclude every form of judicial cooperation with American exceptional and/or military courts and that all discrimination should be abolished between European and American citizens which might arise from application of the Patriot Act and of the Homeland Security Act;

4. Takes the view that Article 13 of the draft agreement on extradition must expressly specify that no person may be extradited to the USA who might be sentenced to death or executed;

5. Reiterates its concern about the procedure to be applied to data protection; deems the fact that the agreement on judicial cooperation is based on Article 23 of the Convention of 29 May 2000 established by the Council in accordance with Article 34 of the Treaty on European Union on Mutual Assistance in Criminal Matters between the Member States of the European Union (3) to be inadequate, given that the United States is party neither to that Convention nor to the Council of Europe's Convention on Cybercrime (signed in Budapest on 23 November 2001) and that there are, therefore, no common principles on which to act with regard to the correct use of data, the integrity thereof and the rights of the data subject to rectification and erasure if the data are inaccurate; believes, further, that, since US legislation is not subject to verification for compliance with the principle of proportionality that is required by European law, a very detailed study should be made of the possible impact of US legislation, such as the Homeland Security Act, before the agreement in question is ratified; recommends that the agreements should provide for data-protection guarantees that are at least equivalent to the provisions of the Council of Europe's Convention of 28 January 1981 for the Protection of Individuals with regard to Automatic Processing of Personal Data;

6. Considers that, given the scope thereof and the fact that they affect the rights and freedoms of individual citizens, these agreements must be deemed by the Council to be 'basic choices' for the Union in terms of both foreign policy and judicial cooperation and that, consequently, Parliament must be consulted pursuant to Articles 21, 34(2)(c) and 39(1) of the EU Treaty; believes, furthermore, that simple information of Parliament during the ratification phase, which the Council referred to in the House, cannot be deemed satisfactory from either a political or a constitutional point of view; calls on the Council as a matter of urgency to consult formally the European Parliament in the same way as the American authorities consult the US Congress;

7. Reminds the Council, with regard to procedure, that its practice of excluding the national parliaments and the European Parliament from the conclusion of agreements based on Article 24 of the EU Treaty is a flagrant breach of the democratic principle on which the Union claims to be founded (Article 6(1) of the EU Treaty);

8. Deems it essential that these agreements should also become the transparent framework for EU-US cooperation, including for the European agencies such as Europol, Eurojust and OLAF, and calls for joint monitoring committees to be established, including at parliamentary level, with a view to the prevention of any disputes as to interpretation and problems in implementation;

9 Recommends that, with regard to the specific provisions of the draft agreement on extradition:

(a) no request for extradition submitted by a third country should take precedence over a request for surrender from a Member State in the execution of a European arrest warrant,

(b) Member States should ensure that, when faced with several competing extradition demands, they respect their obligations under the Rome Statute regarding surrender to the International Criminal Court;

(c) the EU applicant countries and associated states should align themselves with the EU common position on the International Criminal Court and on the processing of US requests for the signature of immunity agreements;

10. Recommends that, with regard to the specific provisions of the draft agreement concerning cooperation in criminal matters, the agreements should include appropriate provisions with regard to legal and linguistic aid;

11. Calls as a matter of urgency for inclusion in the agreements, and in the Decision authorising signature thereof, of a provision relating to the establishment of an interparliamentary committee responsible for monitoring the agreements in question;

12. Recommends as a matter of urgency to the European authorities that they should make the signature of these agreements conditional upon the finding of a fair solution to the problem of the situation of the persons, especially the Europeans, held at the base in Guantánamo Bay;

13. Instructs its President to forward this recommendation to the Council, the Commission, the governments and parliaments of the Member States and of the applicant countries and to the US Congress and the US Administration.


(1) Doc. ST 8295/1/03. [Back]
(2) OJ C 177 E, 25.7.2002, p. 288. [Back]
(3) OJ C 197, 12.7.2000, p. 3. [Back]

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This document has been published on 05jun03 by the Equipo Nizkor and Derechos Human Rights.