Luxembourg, 17/10/2001 (Agence Europe) - At the meeting on Tuesday evening in Luxembourg to fix a direction on the most controversial points of the discussions on the proposals for a European arrest warrant and harmonised incrimination of terrorism, the Justice Council tackled the substance of the problem but found going difficult on the question of the European arrest warrant, for which it did not give well-defined guidelines. Some progress was made on terrorism, however. At the opening of the General Affairs Council on Wednesday morning, several ministers including the British, French, Spain and Swedish Ministers criticised this lack of result and expressed the hope that, at the Ghent Summit, the Heads of State and Government would give fresh impetus in this field. Work was at any rate referred back to the Council's working groups for a further discussion at the JHA Council on 16 November. The aim is still to reach a political agreement on both texts at the JHA Council of 6 and 7 December, but it will be a "Herculean task", according to the German Secretary of State for Justice, Hansjörg Geiger. The Belgian Presidency did not wish to present and explain the results of the session on Tuesday evening, and there was no press conference of the President-in-Office, Marc Verwilghen.
European arrest warrant: problems concerning scope and dual incrimination
The Council on Tuesday evening aimed to give guidelines to the Council's working group on the question of the ambit of the proposal made one month ago by the European Commission to replace extradition procedure by a European arrest warrant, as well as on the degree of control exerted by the State's judicial authority to which the European arrest warrant is addressed (see EUROPE of 13 October, p.8, and 19 September, p.8). Debates mainly focused around the question of scope, but without giving precise guidelines. During the working group the delegations had rejected the Commission's proposal based on the idea of applying the mandate to all crimes over and above a certain threshold, except those included on a negative list. The Council, however, called on this same so-called Article 36 group to work on the respective merits of both methods, one based on a negative list and the other on a positive list (Ed.: infringements to which the European arrest warrant would apply) beginning with a common negative list. It requested that it report to it for its next JHA session on 16 November. No further precision was given on the very difficult question of keeping or giving up the principle of dual incrimination (the possibility for a country to which the European arrest warrant is addressed to refuse to carry it out if the infringement in question is not incriminated in the same way according to its national legislation). Diplomatic sources state that, except for some offences, Germany, the Netherlands, Austria and the Scandinavian countries refuse to do away with dual incrimination. The German Secretary of State stressed for his part that he hoped for a broader definition of the scope of the mandate, specifying that Germany was not so far from the French list but hoped to keep the principle of dual incrimination. Irish Justice Minister John O'Donoghue declared on the fringe of the Council that Ireland hoped for a positive list of serious crimes, and declared that the list proposed by France (see yesterday's EUROPE, p.9) is "very constructive"). French Minister Marylise Lebranchu specified after discussions that France had presented its proposal of a positive list but that this would be examined after a proposal by the Presidency, which, however, is not the result of the conclusions of debates. The last proposal would be a compilation of all possible options: - the abolition of dual incrimination for harmonised infringements and for a "positive" list of serious infringements; for the other infringements, dual incrimination would be limited to specific cases, for example when a person present in a country is prosecuted in another country for an act committed and not reprehensible in the country where that person is found, and for a list of exceptions per country (IVG,
euthanisa …).
Terrorism: the problem of sanctions
The Council confirmed that a majority of Member States were in favour of a compromise from the Presidency on the question of sanctions (maximum penalty of at least 20 years for leading a terrorist group and 8 years for other terrorist offences, the other crimes being freely sanctioned in each Member State, but more forcibly than similar offences not linked to terrorism). It stressed, however, that it nonetheless agreed to pursue discussion at their level. Several countries emitted reservation about the question of sanctions.
Germany, where the maximum penalty is either "life" or 15 years, stressed before the press that it would have to change its penal system to be able to follow the proposal. The Council will examine, on 16 November, a comprehensive report on harmonisation of sanctions. It also requested that its working group follow discussions on the definition of terrorism, also highly controversial. Several countries, including Finland, hoped a very specific definition would be found, in order to ensure that it cannot include anti-globalisation demonstrators. Ministers will also again examine the question of each country's competence to judge a terrorist act, mainly discussing the criteria for determining which Member State would be best for prosecuting and judging infringement.