As EU member states move towards tighter criminal law integration, Torquil Dick-Erikson raises the alarm over the planned first step of a European Arrest Warrant 

THE EUROPEAN Arrest Warrant [EAW], if enacted, will place Britons who reside in the UK directly under the jurisdiction of 14 foreign, European, judicial systems, making them immediately subject, among other things, to arrest and transportation orders by these alien authorities. Perhaps we should therefore take a rather closer look at how these - largely unknown - systems actually operate, in order to see just what our MPs are going to be letting their voters in for.

The following events are currently spread throughout the Italian news media (e.g. Corriere della Sera, 16th November 2002):

Continental Europe's inquisitorial justice system was once again seen in action yesterday when thirteen Italian youths were arrested and imprisoned on charges dredged up from Mussolini's criminal code (still in force), viz "Subversive association", "Political conspiracy" and "Attack on the personality of the State" (in Italian, "Associazione sovversiva", "Cospirazione politica", "Attentato alla personalità dello Stato").

In fact, they are members, some prominent, of the No-Global movement, which over the last couple of years staged demonstrations in Genoa and Naples, ending in street fighting with police, and one in Florence this weekend that ended peacefully. A number of  British citizens were also present in Genoa. One, a journalist working for IndyMedia, had his ribs cracked and lung punctured by police during the events there. If the investigation is broadened, these Britons could theoretically be subject to EU arrest warrants and shipped to Italy to face a similar fate to the 13 Italians.

Whether or not one agrees with the aims of the No-Global movement, the legal situation its activitists are facing today in Italy - a founder-member of the EU and homeland of the EU's Commission President Romano Prodi - should cause concern
in view of the current drive to ever-closer criminal law integration amongst EU member states, of which the EAW is to be the first step. This concern ought to be particularly acute in the United Kingdom, which does not share the inquisitorial criminal law tradition of its continental neighbours. The UK therefore risks the greatest degree of culture shock if its citizens are subjected to these alien laws.

These charges levelled against them are the most serious in the whole code, and traditionally carry a maximum penalty of life imprisonment, which in Italy means literally until the prisoner's death, recently modified to 30 years.

We are told that the arrest warrant is 360 pages long and apparently the "sources of evidence" given seem to be mostly phone-tappings. But although the press is devoting pages and pages to the event, nobody knows what the evidence against the defendants is. NO PUBLIC HEARING IS SCHEDULED to establish the existence or otherwise of a plausible prima facie case against them.

They could easily be looking at many long months in prison with no public hearing at all and therefore no opportunity to demand that a prima facie case be presented against them, because Italy, like other countries in continental Europe, has never had
habeas corpus. Under Italian law, the "preliminary hearing" to establish if there is a case to answer will be held behind closed doors and could take place in six months' time, unless the prosecutors ask for an extension on grounds that they need more time to "complete their investigations", in which case it could be twelve months or even longer.

Meanwhile the prisoners will wait in jail. They may be released
provisionally, but the decision on bail will be taken by the
investigating judges in the privacy of their offices, there is no public hearing for that either.

Italy's Constitutional Court ruled in the past that the continued
existence of these criminal offences, devised by Mussolini's Fascist government in the 1930s to crush political opposition to his dictatorship, is not irregular under the Italian Constitution, even though the "actus reus" would consist of mere association with other persons and the speaking of certain words to them, and maybe talking about, though not necessarily committing, acts of violence.

Two days ago the Pope made a highly publicised speech to the Italian Parliament, asking for an "act of clemency" for prisoners, without distinguishing between those who have been convicted and are serving a sentence, and those who are awaiting a definitive verdict one way or the other and so who could be (and often are) not guilty but are waiting in prison to be "processed" (about half the total number of prisoners).

It is thought that Berlusconi's government will accept the Pope's
request and pass an amnesty as the only way of lessening the pressure on the over-crowded jail system. One thousand six hundred prisoners had written to the Pope begging him to make this plea. This is considered a more likely way of being released, more effective than attempting to show that the prosecution against one is wrong and that one has no case to answer.

This is one of the 14 judicial systems to which Britons will be exposed directly when the EAW comes into force, unless our Parliament comes to its senses and throws it out.

Note: Torquil Dick-Erikson is a British legal researcher who has lived in Italy since the 1960s. This article was first published by JUST Response on November 16 2002.

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