Posted Tuesday, December 2, 2003

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Lawyers set to scupper EU arrest warrants

From Roger Boyes
in Berlin

GERMAN lawyers are mounting a late challenge to the new European arrest warrant, which comes into effect on January 1. They say that the warrant undermines the protection of individual rights enshrined in Germany's postwar Constitution after the abuses of the Nazi years.

More than 120 law professors and two professional lawyers' associations argue that the warrant will seriously undermine the national system of justice in Germany.

The warrant, which makes extradition much easier within the European Union, is stirring anxiety in many countries and prompting legal questions. Will Germany try to extradite David Irving, the British historian, for allegedly questioning the authenticity of the Holocaust? Will Irish or Polish courts seek the extradition of Dutch doctors performing abortions on Irish or Polish citizens? Will holidaymakers who cause accidents abroad be sent back to the scene of the crime and languish, perhaps on the basis of doubtful evidence, in detention centres until a trial date is set?

Under the new European arrest warrant, courts in EU states will have to decide within 90 days whether to comply with an extradition request from a fellow EU country. Resistance will be difficult. At present extradition requests can be contested in a series of national courts and cases linger on for years. Moreover, extradition decisions will no longer be referred to a politician, typically the Home Secretary or Interior Minister, but will be decided by the courts.

The new binding European law sets out 32 areas in which the faster extradition will apply, from terrorism to fraud, from serious traffic offences to "environmental crime". That will remove one line of defence: at present a suspect can argue that he has not committed a crime under the laws of the country in which he is living. The new warrant sets aside these objections.

There is already confusion connected with extradition. For example, France recently arrested a German sympathiser with Islamic fundamentalists. The man, who lives in Germany but who was visiting France, received a mobile phone call from a suicide bomber. The German prosecutor was unable to muster a case against him based on this telephone conversation. The French, however, arrested him on the ground that he could not plausibly explain why he received the phone call. The standards of evidence, in other words, are quite different from country to country.

The nervousness about the European warrant seems to be strongest in the German legal profession. Protection of individual rights was writ large in the German Constitution after the Second World War. Until 2000 it was forbidden for a German court to extradite a German citizen.

Hartmut Kilger, President of the German Lawyers' Association, is urging the Government to insist on a double right to defence: that is, legal representation in the home country and in the country demanding extradition.

The last-minute German lobbying is unlikely to stop the law going ahead, but the lawyers are predicting chaos.

Our dossier on Germany's prohibition on Free Speech

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