Written question by
 Lucio MANISCO (GUE/NGL) and Giuseppe DI LELLO (GUE/NGL)
to the  European Commission

We have gathered from press reports that the United States of America and the European Union are pursuing an agreement that would pave the way for extradition of suspected terrorists to the USA under the new European arrest warrant by ensuring that the death penalty would not be applied in certain cases. We have also taken note of the generical assurances given by the US Ambassador to the EU, the Honourable Rockwell Schnabel, that the death penalty would not be applied on suspected terrorists extradited from Europe; the US Ambassador however underscored in this matter the need for some countries "to change things, including their constitutions" and added that "there is agreement to pursue that".

Bearing in mind that opposition to the death penalty is one of the fundamental principles of the EU, embedded as it is in the constitutions and in the specific laws of many of its member nations, and that the new powers conferred to the President of the United States since September 11th (including entrusting military courts with jurisdiction through summary proceedings over foreigners suspected of terrorist activities) would nullify any assurances given by the State or Federal authorities of the USA, we ask the Commission to clarify the juridical nature and the scope of the negotiations going on in such a context with the USA and to restate its determination not to enter any agreement which would compromise, limit or modify the EU opposition to the death penalty under any circumstances, particularly those involving emergency extradition procedures.

ANSWER given by Mr. VITORINO on behalf of the COMMISSION
(19 February 2002)

Generally, although the differences of view between the United States and the Union on the death penalty are well known, the Union regularly recalls its opposition to this punishment and invites the United States to at least respect certain strict minimum standards for use of the death penalty, notably in relation to juveniles and mentally retarded. These standards have been set down in the guidelines to Union policy towards third countries on the death penalty. It goes without saying that the Commission will continue to actively convey this policy to American authorities.

Regarding the more specific issue of an agreement between the United States and the Union on extradition, under Articles 38 and 24 of the Treaty on European Union, for an agreement with a third state on matters of judicial cooperation in criminal questions to be concluded, the Council, acting unanimously, needs to authorise the Presidency, assisted by the Commission as appropriate, to open negotiations to that effect. Once the negotiations are finalised, the agreement is concluded by the Council acting unanimously on a recommendation from the Presidency.

The Council has not yet been seized formally to give such an authorisation to the Presidency, let alone taken a decision on it. No authorisation having been given yet, it has not been possible to start negotiations. Nevertheless, it is correct that the possibilities of an agreement under Articles 38 and 24 of the Treaty on European Union on judicial cooperation in criminal matters between the United States and the Union are currently being explored.

In any event, it would seem impossible to include the United States in the European arrest warrant system as such. Indeed the title of the initiative the Commission took in September 2001 is "Council Framework Decision on the European arrest warrant and the surrender procedures between the Member States". The European arrest warrant system is for Member States only, and it is not intended that persons could be transferred under this system from a Member State to a third country, such as the United States. If the above-mentioned agreement between the Union and the United States were to cover the field of extradition, it could thus be expected to contain provisions different from the ones in the European arrest warrant Framework Decision.

While it must be pointed out that under the rules of Articles 38 and 24 of the Treaty on European Union, it would not be for the Commission, but for the Union as such to enter into an agreement with a third country such as the United States, the Commission can clearly restate its determination that if and when it will exercise the role conferred upon it by the Treaties in this matter, it will do so in the strictest respect of Article 2 paragraph 2 of the Charter of Fundamental Rights of the European Union, which provides that "No one shall be condemned to the death penalty, or executed", as well as Article 19 paragraph 2 of the Charter, reading "No one may be removed, expelled or extradited to a State where there is a serious risk that he or she would be subjected to the death penalty, torture or other inhuman or degrading treatment or punishment".