EU framework decisions on terrorism and EU arrest warrant

EU FRAMEWORK DECISIONS ON TERRORISM AND EU ARREST WARRANT: STRONG PARLIAMENTARY OBJECTIONS IN SWEDEN

A majority of the Swedish Parliament is opposed to a quick approval of the controversial EU "framework decisions" on the fight against terrorism and an EU arrest warrant. This became clear on Thursday (14.3.02), when the Swedish centre-right party, Moderaterna (the second largest group in parliament), unexpectedly withdrew its earlier support for the social-democrat government's plans to have the EU measures nodded through by Parliament before the end of spring.
The turn-about of the Swedish parliament could delay the adoption of new national law necessary for the implementation of the two EU measures by up to one year and revive opposition in other EU countries against the sweeping "anti-terror" measures adopted by the Council at the Laeken Summit in December 2001.

The spokesman of Moderaterna on crime policies and chairman of the parliamentary judicial committee, Fredrik Reinfeldt MP, told the Swedish press agency TT that his party was not prepared to approve the EU-measures before agreement is reached on changes of national law necessary to implement the EU measures in Sweden.
"These proposals highlight essential issues regarding the relation between the rule of law in a constitutional State and the European Union and it is our opinion that the national legislation council, legal experts and other interested circles must be given an opportunity to carefully analyse the consequences first", Reinfeldt told TT. "If we just approve the framework decisions without being aware of their consequences for Sweden, we do not know how 'terrorism' will be defined here. This will also have effects on accelerated extradition procedures, since terrorism is one of the grounds for extradition". Reinfeldt is also critical of the very principle of member state governments agreeing on framework decisions and other EU measures within the Council without sufficient prior consultation of national parliaments which are expected to merely nod through ensuing national legislation.

In seeking parliamentary approval of its policies, the social-democrat minority government of Prime Minister Persson usually relies on the support of its red-green allies, the Left Party and the Environmentalist Green Party. But this time both parties opposed the EU measures from the very beginning and the government would have needed support from the right to push through its agenda.

European background
The EU framework decision on the fight against terrorism was hastily adopted by the EU Council of Laeken (Belgium) in December. Under the decision, all member states bind themselves to introduce stringent common minimum penalties for offences considered to be terrorism-related. Among others, the framework decision aims to make leadership of, participation in, and support of a "terrorist organisation" a criminal offence entailing severe punishment. The content of the framework decision has drawn strong public criticism in a number of member states. Among others, critics point out that the definition of the term "terrorist organisation" in the framework decision is all too extensive and vague and therefore could be used as a catch-all provision to put under surveillance and prosecute people on political grounds and to associate street protest with terrorism.
Such fears were further fuelled by a recent proposal from the Spanish EU Presidency linking "violent urban youthful radicalism" to terrorism.
The instrument of "framework decisions" was introduced into the Treaty on European Union (TEU) by the 1997 Amsterdam Treaty which entered into force in 1999. According to Article 34 of the amended TEU, framework decisions adopted unanimously by the Council leave to the national authorities "the choice of form and methods" of their implementation and thus "shall not entail direct effect". At the same time, however, they are "binding upon the Member States as to the result achieved". This means that, once a framework decision has been adopted by the Council, national parliaments have little other choice than approving changes of national law necessary to implement the objectives defined by the framework decision concerned. This is questionable in view of the fact that most national parliaments are not involved in and often poorly informed on the process of drafting and negotiating proposals for Council decisions. As a matter of fact, draft Council measures are often made fully available to parliaments and to the public only once senior officials under the Council and COREPER have come very close to agreement on their content, whereupon they are often adopted by the Council as "A points", i.e. without any further debate.
From the point of view of executive branches of government (the Council and the influential committees and working groups of officials under it), the advantage of framework decisions is that, as opposed to intergovernmental Conventions, they do not even require ratification by national parliaments. Thus, the introduction of Council framework decisions has further widened the "democratic deficit" that has long been a feature of EU-decision making.

Swedish background

According to well-established legislative practice in Sweden, the government publishes early drafts of legislation and refers them to interested instances and parties (government agencies, academic experts, NGOs) for consideration before submitting them to parliament. The outcome of such public consultation procedures often results in significant changes of the final wording of a bill and the outcome of the parliamentary vote. Significantly, at the Laeken Council in December, the Swedish government approved the Council decisions on terrorism and on the European arrest warrant without any prior public consultation procedure. However, as required by Swedish constitutional law, the government did subject its approval of the two Council decisions to a parliamentary reservation. Apparently, the government reckoned that, with the expected support of Moderaterna, pushing through the proposals in parliament would be an easy game anyhow. The government never expected that opponents of the EU-measures would succeed, within a couple of months, to launch a critical public debate. This is, however, exactly what happened. In what was widely seen as a symbolical protest against the Council's and the governments disdain for democratic parliamentary decision-making, the Left Party, Vänsterpartiet, did what the government should have done: it initiated a public consultation procedure. Copies of the two framework decisions were sent to all parties usually consulted by the government. This "shadow" hearing procedure proved a full success. Opinions poured in, including such from judicial authorities, the Police Union, NGOs and academic experts. While comments on the content of the EU-decisions range from cautious support to strong rejection, most opinions voice concern about the lack of transparency and democratic scrutiny characterising EU-related decision-making.
It is this widespread public scepticism that seems to have brought about the last-minute turn-about of Moderaterna.
Commenting on the government's loss of parliamentary support, the judicial policies spokeswoman of Vänsterpartiet, Ms Alice Åström, said: "At last, a national parliament is putting up resistance against unaccountable EU decision-making. The member state governments and the Council must understand that, in a democratic society, laws cannot be made without public debate and the involvement of parliaments. We also hope that the strong reservations expressed by leading Swedish legal experts with regard to the content of the two EU framework decisions concerned will bring parliamentary assemblies in other EU-countries to reconsider their stands". Responding to suggestions that her party was delaying the European fight against terrorism, the chairwoman of Vänsterpartiet, Ms Gudrun Schyman stressed: "The fight against terrorism and international organised crime is important, but it may not be conducted at the expense of human rights and democracy."

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