Andrew Symeou, EAW and Civil Law

Royal Courts of Justice

There was a slightly strange atmosphere in the High Court yesterday as Mr Andrew Symeou appealed against the extradition to Greece in accordance with an European Arrest Warrant (EAW). Mr Caldwell, appearing for the Public Prosecutor at the Court of Appeal Patras, Greece, summed up the main problem when he said that if we require evidence to be presented at extradition proceedings, we will be back to the "bad old days" prior to the EAW. From the tainted evidence that we heard and, to say the least, strange procedures, I imagine that many of the 50 or so people in the court must have been thinking, like me, that they were probably the "good old days". Thereby hung the main problem. How do you appeal against abuse of procedures if you don't test the evidence? The introduction of the EAW removed the requirement for the extraditing authority to show that it had prima facie evidence. It is just sufficient for it to issue the warrant and under the principle of mutual respect1 or mutual recognition for its legal system, we are required to surrender the accused.

1The principle of loyal or sincere cooperation applies to the member states, as set out in Article 4(3) TEU (OJ 9.5.2008 C 115/18): 3. Pursuant to the principle of sincere cooperation, the Union and the Member States shall, in full mutual respect, assist each other in carrying out tasks which flow from the Treaties.


For more details of the incident, look at previous posts, but in essence, a young welsh man, Jonathan Hiles was struck on the dance floor in a nightclub in Greece in 2007. See the 2007 BBC report 'Superstar' player's island death, for more details. He died later in a Greek hospital from head injuries.

 

Of the problems with evidence that the defence raised, two struck me as of particular importance.

 

  • Andrew Symeou is not tall, had a beard at the time of the incident, is of dark complexion and comes from North London. More than one witness described Jonathan Hiles' attacker as being tall, light in complexion, with pimples on his face and who spoke with a northern accent.

  • The witnesses signed their statements in Greek, saying that they had seen Andrew Symeou strike Jonathan Hiles, but on being released from Greek custody, complained that they had been beaten, didn't speak Greek and retracted their statements. Later, in statements given to Welsh police they said that they didn't even see the blow being struck. Many more concerns have been expressed by Fair Trials International. See ANDREW SYMEOU - GREECE for more details.

 

However much the Judges struggled with the "hands off approach" as they described their approach to the EAW, they were also struggling with the difference between UK law and Greek law, essentially the difference between Common vs Civil Law systems. I have quoted Baroness Kennedy before, from her book, "Just Law", so a shortened version of her comments on the two systems, follows:

 

The first mistake is a failure to see that law is cultural. ... Unlike the rest of Europe, which has what is called the 'civil law' system with codified laws and a career judiciary, we have a common law system. ... as new democracies have emerged around the world and sought to adopt a Western model they have most frequently replicated civil law systems because they are easier to take off the shelf. Their basic rules take the form of codes - huge statutes which set out the laws in detail, number by number, along with the central concepts and doctrines. For the most part the judges have little or no power to add to or subtract from the law, which is entirely contained in the codes. Their function is to interpret these rules.

The common law on the other hand was essentially created by judges as they decided actual cases. Judges in the higher courts dealt with appeals from lower courts and, in pursuit of a real rather than formal justice, took account of the experience of real litigants and real situations. One of the reasons why contemporary markets thrive in common-law-based nations is because Napoleonic, codified systems entrench bureaucracy. The dead hand of the state is heavier where there is little legal flexibility. The discretion vested in judges provides just enough 'give' to prevent rigidity. Even today, when large parts of the law are created by statutes passed in parliament, the judges have a significant role in developing the law. While our judges are drawn from the ranks of practising lawyers with everyday experience of representing clients, judges in the civil law system are civil servants. judging is a career from the start and the training of judges is separate from that of lawyers. ... The civil system is an inquisitorial system, whereas our system is adversarial.

As Civitas quotes:

 

‘By creating a Community...[with] its own institutions, its own personality, its own legal capacity...the member states have limited their sovereign rights, albeit within limited fields, and have thus created a body of law which binds both their nationals and themselves.' Costa vs. ENEL (1964)

 

Thus what is the future role of the High Court? Does it have a place in this new Country called the EU? Are we slowly adopting the State centred Civil Law system of the EU and discarding the individual centred Common Law system of the UK for the sake of ever greater integration?

 

As Torquil Dick-Erikson writes "Corpus Juris" is the Commission's blueprint for an "embryo European criminal code" on entirely inquisitorial principles which are the antithesis of ours. It was published in April 1997, and presented to a selected audience of 141 European jurists at an unpublicised seminar in Spain.

 

These uncomfortable questions were all just under the surface throughout yesterday's appeal. I had the feeling that the Symeou and Hiles families were mere pawns in this power play.

 

Lord Justice Laws and Mr Justice Ouseley have much to consider over the next few weeks.

Posted on 13 Mar, 2009 by ethelred

Filed under Law


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