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ORIGINAL FRENCH ARTICLE: Le vrai visage du mandat d’arrêt européen

by Jean-Claude Paye, Sociologist

The True Face of the European Arrest Warrant

What is Behind the Case of Aurore Martin?

Translated Thursday 15 November 2012, by Henry Crapo and reviewed by Bill Scoble

Aurore Martin, French citizen and member of the Batasuna organization, was turned over to Spanish authorities this week. This article, which explains the legal and political background of the case, was written by Sociologist Jean-Claude Paye in January of this year.

The rejection by the Appeals Court of the plea filed by Aurore Martin makes it possible that she be turned over to the Spanish judicial authorities for "participation in a terrorist organization." This decision shows the purely political nature of the European arrest warrant (EAW). Aurore Martin is charged with belonging to Batasuna, a political organization banned in Spain but legal in France. This two-part judicial decision: validation of the Spanish mandate by the Court of Appeal of Pau - and the rejection of the appeal by the Court of Last Resort - is a first in France. This case reveals what the European arrest warrant allows, but was not allowed under the former extradition proceedings. To understand the magnitude of this change, we must return for a moment to the sources.

Taking advantage of the attacks of September 11, 2001, the Commission of the European Union produced from its cardboard file boxes a draft of a two-part model-law, one criminalizing terrorism, the other establishing a European arrest warrant to replace extradition proceedings.

Both were adopted on 6 December 2001 and then incorporated in the penal codes of the Member States; these two model laws are intimately linked. The warrant acquires its draconian strength in the context of the "war on terrorism". Recall that the criminalization of terrorism is fundamentally political:
What defines an act to be terrorist is the attribution to the accused of the intention to bring pressure on the government.
Thus, it is the government itself that determines the type of opposition that it will accept or that it, instead, chooses to criminalize.

The arrest warrant puts in place a mechanism of solidarity between European governments vis-à-vis types of opposition that they choose to designate as criminal. However, unlike the old extradition process, the decision to surrender the person sought is formally denied to the government of the country receiving the request. In extradition proceedings, there was judicial review focused on the material facts of the case, and the legality of the request. As concerns the arrest warrant, the judicial review focuses only on the formal validity of the document. The abandonment of the audit procedures means that the process of turning over the person in question becomes almost automatic. This procedure reverses the situation in extradition, where the decision was ultimately made by the political powers.

Extradition proceedings were also based on the requirement of double incrimination, for extradition was possible only if the prosecuted offense constituted a crime - both in the country requesting the accused person and also in the requested country. The European arrest warrant abandons this condition: it is sufficient that the conduct in question constitutes an offense in the requesting State. This explains why Aurore Martin was turned over to Spain for belonging to a political organization illegal in Spain, but legal in France.

This possibility stems from the psychotic mechanism that is the EAW. The reality of acts in the eyes of the requesting country has replaced the presupposed legality of those acts. This is a consequence of the principle of mutual trust. It is taken to be true, a priori, that the penal systems of EU countries respect democracy and the rule of law. Implementation of the mandate can not be suspended except "in cases of serious and repeated violation by the Member States of human rights." The authorization for transfer of Aurore Martin shows us that the existence of special courts and the systematic use of torture vis-à-vis the Basque militants no longer constitute, for France, a "serious violation", bringing into question the extradition of a French national.

The claim of a "non-political use" of the European arrest warrant, itself political by nature, is total nonsense. We can only cope with a denial of democracy of the scale of this reform by calling for its removal, and returning to the old extradition proceedings.

(*) The author of The End of the Rule of Law.
 Éditions La Dispute.
Jean-Claude Paye

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