Trevor Ó Clochartaigh (Sinn Fein)

Curim céad fáilte roimh an Aire. Maraon le daoine eile, ba cheart dom é a mholadh as chomh flaithiúil is atá sé lena chuid ama ag teacht go dtí an Teach. B'fhéidir go gcuirfeadh sé focal isteach i gcluais an Taoisigh agus an bealach anall a thaispeáint dó ceann des na laethanta.

The purpose of this legislation, as I understand it, is to extend the provisions of the European Arrest Warrant Act 2003 to states other than designated EU member states. While the Minister claims this is a mere technical provision, he is aware of our concerns regarding the 2003 Act. Put simply, our position is that while that legislation is necessary, the safeguards in place in terms of human rights and the right to due process are not adequate. Therefore, in the absence of reform of the arrest warrant legislation generally, we cannot support this Bill.

We are far from alone in having such concerns, with reservations also being expressed by the Human Rights Commission, which provided a submission on the original legislation; Fair Trials International; the Council of Europe's Commissioner for Human Rights; and by Irish MEPs at a recent plenary session of the European Parliament on the subject. The cause of concern in all cases is the view that the original Act diminished some of the protections for individuals regarding extradition or surrender and, in some cases, could violate their human rights. As the Human Rights Commission has noted, the EU framework decision which gave rise to the European arrest warrant was based on a flawed presumption of effective and equivalent protections of accused persons' rights between EU member states. For the system to be effective, we must place full trust in the standards and procedures of other EU states and, if this Bill is passed, in third-party states.

We are in favour of working with other states. As things stand, however, the European arrest warrant system is neither robust enough nor human rights centred. It is worth noting the comments of Mr. Thomas Hammarberg, the Council of Europe' Commissioner for Human Rights, when he discussed the application of European arrest warrants last year. He stated:

There has, however, been repeated criticism of the manner in which the EAW has functioned in a number of concrete cases. This criticism must be taken seriously. Human rights organisations have expressed concerns about the imprisonment of innocent persons, disproportionate arrests, violations of procedural rights and the impossibility in some countries for an innocent person to appeal against a decision to be surrendered...

The EAW has been used in some cases for which it was not intended, sometimes with harsh consequences on the lives of the person concerned. It is thus high time to reform a system that affects thousands of persons every year.

I entirely concur with his assessment, particularly when one considers that some 50,000 arrest warrants have been issued.

Closer to home, and more recently, we had observations on this issue by one of our most senior judges, Mr. Justice Hardiman. In the case of the Minister For Justice v. Tobin, which judgment was delivered on 19 June, Mr. Justice Hardiman noted that the origins of the European arrest warrant are a long way from what we now have. He stated:

This confusion is not surprising because when the European Arrest Warrant "Framework Document" was first drawn up in 2001 it related exclusively to Terrorist offences. It was subsequently, in the ten day period immediately after the 9/11 outrage in New York, extended to a great number of other offences many of which are not offences of specific intent at all. Again, I do not think that this aspect of the European Arrest Warrant arrangements are widely known, or were widely or clearly explained at the time.

I would also note his comments on the application of the European arrest warrant in Irish courts generally. Of the authorities, he said:

I cannot acquit them of a desire to be seen to be almost slavish in conforming with the obligations of a subscriber to the Framework Document, and a member of the European Union, as they conceive them to be. It is this attitude, it appears to me, that has rendered them willing to extradite or deliver Irish people, or people who happen to be in Ireland, to other countries who would not deliver their own citizens if the positions were reversed. It has also rendered them gravely insensitive to the human rights of a person in the position of Mr. Tobin and his family.

I believe this should give us pause before we contemplate extending this legislation. The reforms that are needed are clear. We need to allow states to refuse a surrender when it is felt that the fundamental rights of the individual are not guaranteed. The surrender of a person subject to a European arrest warrant can be deferred until the State seeking extradition is trial-ready. Lengthy periods of pre-trial detention are not satisfactory. The misuse of European arrest warrants for minor offences needs to be curbed and there must be a proportionality test for assessing the warrants to prevent the possibility of an infringement of the human rights of the individual being sought. Proportionality is rightly recognised as a fundamental principle of EU law and it must be applied to the European arrest warrant system.

As I stated at the outset, a system such as this is needed to provide for extradition or surrender from one country to another, particularly with regard to serious crime. However, such a system must be robust and human-rights compliant. In the absence of such safeguards for the European arrest warrant, we cannot possibly support the extension of the 2003 Act.