The European Parliament recently played host to a public debate on proposals for an extradition agreement with the US. Kathalijne Buitenweg, MEP in the Greens/EFA group, chaired the proceedings. She offers her views on the discussions which took place.
The question at the core of the debate on EU-US co-operation in criminal matters, was, should the EU rely on the concept of 'mutual trust'? Extradition of EU citizens requires trust in the judicial system of the requesting state and is based on common values but before intensifying co-operation with the US in criminal matters, including extradition, it is important to bear in mind the particularities of the American judicial system.
Speaking from first hand experience, Robert King Wilkerson, who was a prisoner in a Louisiana state penitentiary for 31 years, 29 of which were in solitary confinement, attended the debate as guest speaker. As a political activist in the Black Panther Party, he stood up for the human rights of prisoners. Officially, he was assigned to an isolation cell because he was 'under investigation' for the killing of a guard, even though he was not in the prison when the murder took place.
Racial segregation is a reality in US society, and it is a feature which also marks investigation, trial and detention, said Bart Stapert, a Dutch legal expert in criminology who worked for years as a lawyer in the US. Moreover, the outcome of nearly all criminal cases in the US is determined by inadequate legal counselling and lack of review of evidence, he said.
Stapert pointed out that the American judicial system is 'adversarial' by nature and that "adequate counselling is your only chance for a fair trail". Bart Stapert's presentation indicated that the right to an adequate defence and to judicial review are two key elements in preventing miscarriages of justice. However, 'Plea-bargaining' is an important characteristic of the US judicial system with some 90% of all criminal cases being dealt with under this method where negotiations take place between defence lawyers and public attorneys aimed at reducing prison terms in exchange for pleading guilty.
The consequences of the use of plea-bargaining are enormous, said Stapert. Pleading guilty means that there can be no judicial review of the key questions in criminal proceedings can take place including whether or not the evidence has been gathered in a legal manner and whether or not the evidence is sufficient to reject the presumed innocence of the suspect.
Because of the vague and secret nature of the negotiation mandate of the Spanish EU presidency, it is difficult to foresee which crimes or offences will be included in the extradition agreement with the US - will it be crimes linked to terrorism only or all criminal offences? A number of other issues also need to be raised, specifically, which methods of cooperation are to be used and what guarantees the EU will demand from the US authorities. If the veil of secrecy is not lifted, and without genuine public debate - as was the case with the EU arrest warrant - the final agreement will probably be agreed at the expense of civil rights.
Dick Oosting, director of the EU office of Amnesty International, doubted whether the EU is willing to demand, within the framework of this cooperation agreement, qualified counselling and for the examination of US investigation methods by judges in the EU prior to extradition. It seems the EU is focusing it attention on conditions relating to the death penalty and inhumane detention conditions – issues that it is obliged to demand anyway under the EU Charter of Fundamental Rights.
Part of the deficiencies of the American judicial and penal system may be remedied by asking the US to accept the right of Europeans who have been convicted after extradition to be returned to a prison in their home country. A similar provision - which provides no guarantee however - is part of the current US-Dutch extradition treaty.
Transferring criminal prosecutions from the US to the EU is also an option, according to Stapert. Within the EU, a judge could determine whether the evidence has been lawfully obtained and whether it is sufficient.
Notwithstanding these pragmatic suggestions, Oosting himself questioned the added value of an extradition agreement between the EU and the US. Is there any added value, if sufficient trust in the US judicial system is lacking and guarantees cannot be obtained? Some say responding to the American request for closer judicial cooperation is a political sign of solidarity, but solidarity is a void concept if it comes only from one side of the Atlantic ocean.
by Kathalijne Buitenweg MEP and Tim Roosen, policy adviser for GroenLinks in the European Parliament