Deal or no deal, the European Arrest Warrant threatens our human rights

Deal or no deal, the European Arrest Warrant threatens our human rights

by Torquil Dick-Erikson
article from Wednesday 2, September, 2020

HOW MANY in the Scottish or UK governments, at any level, are aware that the European Court of Human Rights declared that up to 5 years in prison awaiting, not just trial, but a prisoner's first appearance in a public hearing in open court, is perfectly legitimate, and a "reasonable time" under the Convention's article 6, because it believes that this preventive "detention ... is intended to facilitate the preliminary investigation"?  

This judgement, rejecting an application from an Italian against Italy, dates from the mid-eighties, but is now necessarily a part of that Court's jurisprudence – its settled doctrine – so is relevant today. It demonstrates clearly the Court and the Convention have no place for Habeas Corpus

For further details see the second half of this article: https://www.brugesgroup.com/blog/the-european-convention-and-court-of-human-rights-have-no-place-for-habeas-corpus 

The power to issue Arrest Warrants, to be followed by lengthy imprisonment with no public hearing, without showing any evidence of wrong-doing, obviously confers a power of misuse and abuse on whoever holds it. It can be employed with spurious accusations against political adversaries, and in continental Europe, where this power is held by often unaccountable judiciaries, it is employed not infrequently.  

The above judgement of the ECtHR shows that a State’s being a signatory of the European Convention is no guarantee at all that it will safeguard, say, Habeas Corpus rights to a prisoner. The Convention merely says a “reasonable” time, but does not specify what is “reasonable”. The Court says up to 5 years is “reasonable”. 

And, how many have noticed the EU has nominated Ms Laura Kovesi, a member of the Romanian judiciary, to be their first European Public Prosecutor? Romania’s judiciary is the most heavily criticised in Europe for corruption and for being used as a blunt weapon to repress political opponents. A joint report by The Freedom Association and the Research Centre on post-Communist Economies gives details, drawn also from material published in the Guardian, to show that even the Romanian showcase "Anti-corruption unit" (“DNA”), from whose ranks the new EPP is drawn, is itself riddled with corruption and political manipulation. Ms Kovesi is named on page 8 in the Report, cited above, as being the Chief Prosecutor, so at the heart of, the sham “anti-corruption unit”. Yet she has been chosen as the EU’s first, all-powerful, European Public Prosecutor.  

Not enough publicity has been obtained for the Learned Opinion, given by Jonathan Fisher QC to Christopher Gill, as to the powers that the EPP will have to issue EAWs against anybody in the UK, and that our judiciary will be powerless to resist this, as long as we are subject to the Extradition Act 2003 which enforces the EAW in the UK, and thereby Scotland.  It is therefore unlikely that anyone in government circles is aware of this sword of Damocles hanging over all of our – and indeed their own – heads. 

On receipt of an EAW issued by the EPP, or by any judicial authority in a "Category 1" country, our own judiciary is bound by the provisions of the Extradition Act 2003 and cannot ask to see, let alone assess, any evidence or lack thereof already collected against the prisoner by the issuing State. This fact is known (at least to Members of Parliament), but needs to be reviewed in connection with the above-listed facts. A threat to “human rights” is allowed as grounds to refuse an extradition, but these have to be as defined by the ECHR – which, as we have seen, is quite insufficient in terms of, say, Habeas Corpus rights.  

The text of the Extradition Act 2003, which is the basis of the EAW, makes no explicit reference at all to the EU. The EU member states with whom EAWs are issued and received are simply listed and called "Category 1 countries". This surely means that on 31 December next, if we leave with No Deal, the ECA72 and its subsequent amendments will surely fall, but the Extradition Act 2003 will still stand.  

So any "judicial authority" in any "Category 1" country (and this includes Prosecutors) will still be empowered, after Brexit, to have anybody in the UK arrested, trussed-up, and shipped over to any dungeon in Europe. 

The risk remains that an un-amended or un-repealed European Arrest Warrant will be offered up as a bargaining chip for a UK-EU trade deal. Or even that it will remain standing in the case of a No Deal. 

In either case it would remain a fetter on our freedom and on our sovereignty. The Extradition Act 2003 needs to be explicitly and radically amended, the repeal of the ECA72 alone will not be enough to free the UK of these entanglements.   

For the last 40 years Torquil has specialised as a legal journalist in comparative criminal procedure. He has been published in, amongst others, The Independent, The Financial Times, The Wall Street Journal, and The New Law Journal. He is the author of “The European Constitution against the British Constitution” and “The Coming Tsunami” about the very different systems of criminal justice and of policing that the UK might have imposed upon it from Brussels. 

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