Sweden vs. Assange

The EAW

The European Arrest Warrant (EAW) is a fast-track system for extraditions within the EU. Sweden has issued an EAW for Julian Assange.

Why was it established?

The EAW was established in 2002 by the European Council – the political section of the EU – along with other counter-terrorism legislation after 11 September 2001. Extradition procedures are simplified to standardised forms listing offences for which one can be extradited. The EAW has created a streamlined system in the EU, but it is unfair. At Assange’s February Hearing, Assange’s lawyer Mark Stephens described the EAW as ’tickbox justice’ - ticking a box sets into motion cases of serious injustice. This has even been acknowledged by David Blunkett, the UK Home Secretary who agreed to the establishment of the EAW.

Where are the safeguards?

Although the preamble of the Framework Decision affirms fundamental rights, it provides no concrete measures for the courts to implement these. The EAW was a teaser of an EU policy package that was meant to establish common standards in criminal justice procedures across the EU. But for almost a decade the EAW has stood on its own. The legislation that is meant to ensure that the system carries with it certain safeguards has not been agreed on. The Council of Europe’s Commissioner for Human Rights, Thomas Hammarberg, has described the current system as ’a threat to human rights’.

Can the courts still decide?

The Framework Decision, which established the EAW, imposed a duty on the courts to extradite with certain narrow exceptions. The Council forced the courts to take a leap of faith: courts are obliged to operate under the principle of mutual recognition, where the court of one EU country has very limited power to call into question the decision of another’s.

Can an EAW be issued for questioning?

Julian Assange’s defence team challenges the validity of the EAW on both substantive and technical grounds. The substantive grounds are that DPP Marianne Ny acted disproportionately and in abuse of process by issuing the EAW. The EAW is disproportionate because Julian Assange is sought for questioning and not prosecution, given that he has not been charged for any offence. The UK Extradition Act of 2003, which incorporated the Framework Decision into UK legislation, states that for an EAW to be valid it must be issued for the purpose of being prosecuted:

“the [EAW] is issued with a view to his arrest and extradition to the category 1 territory for the purpose of being prosecuted for the offence.” (Sec. 2(3b) UK Extradition Act 2003)

How is the EAW different from ’traditional’ extradition?

 Extradition is called ’surrender’
 EAWs are only decided by the courts of the two EU countries involved – the issuing (or requesting) state – in this case Sweden – and the executing state – the UK.
 In theory, the extradition should take place within ten days after the executing court consenting to the EAW.
 There are some exceptions to the duty to surrender, but their scope is limited.

How did EAW change the way the UK decided on extradition?

The UK’s body of extradition law was repealed in 2003. The 2003 Extradition Act stripped the UK courts of most of their powers in extradition cases, making their role bureaucratic. For many of the offences, including rape, the 2003 Extradition Act abolished one of the key principles of extradition proceedings: the principle of dual criminality (this simply means that the offence that a person is being extradited for must also be an offence according to the extraditing country’s laws). Under the previous legislation, there had also been room for political consideration after the courts had decided on extradition. The Secretary of State’s power to reject the extradition was weakened after 2003. The previous legislation also excluded political offences from offences that could lead to extradition, but the 2003 Extradition Act eliminated it because the Framework Decision does not contemplate political offences in the EU context.