US embassy cable - 04BRUSSELS862

C O N F I D E N T I A L BRUSSELS 000862 
 
SIPDIS 
 
STATE FOR INL/PC MAREN BROOKS, L/LEI KEN PROPP. DOJ FOR 
OIA/KEN HARRIS 
 
E.O. 12958: DECL: 04/17/2009 
TAGS: CASC, KCRM, KJUS, PREL, EUN, USEU BRUSSELS 
SUBJECT: STATUS OF BILATERAL PROTOCOLS ON EXTRADITION AND 
MUTUAL LEGAL ASSISTANCE 
 
REF: 03 BRUSSELS 05015 
 
Classified By: USEU NAS:Frank Kerber.  Reasons: 1.4 (b) and (d) 
 
 1.  (U) The U.S.-EU Agreements on Extradition and Mutual 
Legal Assistance (MLA) were signed at the Summit in 
Washington on June 25, 2003.  Before these agreements can be 
sent to Congress for ratification, protocols to existing 
bilateral extradition and MLATs must be negotiated.  In the 
limited instances where there are no existing bilateral 
treaties on either extradition or MLA, new agreements are 
necessary to create a bilateral obligation to bring into 
force the U.S.-EU Agreement.  The U.S.-EU Agreements and the 
bilateral protocols will then be sent forward as a package 
for ratification later this year.  The intent of the 
bilateral protocols is to formally incorporate the updated 
provisions of the new U.S.-EU Agreements into the existing 
treaties.  Where no extradition or MLA treaty exists, the 
U.S.-EU Agreements form the initial bases for bilateral 
cooperation.  Bilateral treaty articles not addressed in the 
U.S.-EU Agreements are unaffected and continue in force. 
 
2. (U) The third and last round of face-to-face negotiations 
on the bilateral protocols with the current EU Member States 
were held February 3-5 with Greece, the UK, France, Portugal 
and Spain.  Several states such as The Netherlands and 
Belgium opted to develop texts through informal exchanges 
rather than in formal face-to-face negotiation sessions in 
Brussels.  The process will now continue informally until 
final texts have been agreed.  The U.S. will sign the 
protocols with each country as they are completed.  USEU 
intends to brief the ten accession states as a group in April 
before beginning individual negotiations with each country. 
It is hoped that the protocols with the accession states can 
be concluded prior to submission of the package to Congress. 
However, if this is not likely, those protocols can be 
submitted at a later date. 
 
3, (C)  In this last round, France and Portugal proved to be 
the most problematic.  Portugal wants to use these protocols 
to legitimize its current practice of denying extradition in 
capital cases and those involving life imprisonment based on 
constitutional grounds, despite the fact that the current 
bilaterals do not authorize denial on these grounds.  France 
says it is bound to the U.S.-EU Agreements under EU law so 
does not intend to submit those agreements to its assembly 
for ratification.  France therefore opposes our bilateral 
protocol approach because it would be viewed as changing the 
existing bilateral agreements and thus require Assembly 
approval.  It is hoped that by signing protocols with the 
other Member States as they are completed, pressure can be 
put on France and Portugal to also agree rather than 
jeopardize the process. 
 
Foster