Steve PEERS :The CJEU and the EU’s accession to the ECHR: a clear and present danger to human rights protection

Original published HERE
18 December 2014

At long last, the CJEU has today delivered its ruling regarding the EU’s accession to the European Convention on Human Rights (ECHR). It’s a complex judgment that raises many legal questions. For now, this post seeks to provide: a summary of the ruling; an assessment of the consequences of the ruling; and an initial critique of the Court’s reasoning. On the latter point, the Court’s ruling is fundamentally flawed. In short, the Court is seeking to protect the basic elements of EU law by disregarding the fundamental values upon which the Union was founded.

Background

Back in 1996, in Opinion 2/94, the CJEU ruled that as European Community law (as it then was) stood at that time, the EC could not accede to the ECHR. Only a Treaty amendment could overturn this judgment, and in 2009, the Treaty of Lisbon did just that, inserting a new provision in the Treaties that required the EU to accede to the ECHR (Article 6(2) TEU). That treaty also added a Protocol 8 to the Treaties, regulating aspects of the accession, as well as a Declaration requiring that accession to the ECHR must comply with the ‘specific characteristics’ of EU law.
However, these new Treaty provisions could not by themselves make the EU a contracting party to the ECHR. To obtain that outcome, it was necessary for the EU to negotiate a specific accession treaty with the Council of Europe. After a long negotiation process, this accession treaty was agreed in principle in 2013. Today’s ruling by the CJEU concerns the compatibility of that treaty with EU law.

Summary

At the outset, the CJEU ruled that the case was admissible (paras 144-52), even though the internal rules which will regulate the EU’s involvement in the ECHR have not yet been drafted. In fact, the CJEU said that these internal rules couldn’t be the subject-matter of the opinion, even if they had been drafted. The UK government had reportedly been very angry about the prospect of the CJEU considering these internal rules, so it should be satisfied on this issue.
Next, the Court made some preliminary points (paras 153-77), asserting for the first time expressly that the EU is not a state (para 156); and (in effect) that the EU system is sui generis (para 158), ie in a class by itself, without using that exact Latin phrase. Those critics of the EU who consider it to be a State, and those academics who dislike the sui generis concept, now have some words to eat. The Court also asserted that it was important to ensure the primacy and direct effect of EU law, referring also to the EU’s goals of ‘ever closer union’.

The Court then ruled that the draft agreement was incompatible with EU law, for five main reasons.

Firstly, it did not take account of the specific characteristics of EU law (paras 179-200), in three respects.
It did not curtail the possibility of Member States having higher human rights standards than EU law, even though the CJEU had ruled (in the Melloni judgment of 2013) that Member States could not have higher standards than the EU Charter of Rights, where the EU has fully harmonised the law. The same rule applies to the ECHR, in the Court’s view, and the draft agreement did not take account of this. Similarly, the draft agreement did not provide for the application of the rule of ‘mutual trust’ in Justice and Home Affairs (JHA) matters, which means that Member States must presume that all other Member States are ‘complying with EU law and particularly with the fundamental rights recognised by EU law’, other than in ‘exceptional circumstances’. Also, the agreement failed to rule out the possibility that when applying Protocol 16 to the Convention, which provides for national courts to send questions to the European Court of Human Rights (ECtHR) on the interpretation of the ECHR, those national courts would ask the ECtHR to rule on EU law issues, before they asked the CJEU. This would circumvent the EU’s preliminary ruling procedure.

Secondly, the draft accession agreement violated Article 344 TFEU, which gives the CJEU monopoly on inter-state dispute settlement regarding EU law between Member States (paras 201-14), since it failed to rule out the possible use of the ECtHR to settle such disputes instead.

Thirdly, the co-respondent system set up in the draft agreement, which creates a new type of procedure where both the EU and a Member State could be parties to an ECtHR case, was incompatible with EU law for three reasons (paras 215-35). The problem with this process was that: it would give the ECtHR the power to interpret EU law when assessing the admissibility of requests to apply this process; a ruling by the ECtHR on the joint responsibility of the EU and its Member States could impinge on Member State reservations to the Convention; and the ECtHR should not have the power to allocate responsibility for breach of the ECHR between the EU and Member States, since only the CJEU can rule on EU law.

Fourth, the rules in the draft treaty on the prior involvement of CJEU before the ECtHR ruled on EU law issues were also incompatible with EU law, for two reasons (paras 236-48). They did not reserve to the EU the power to rule on whether the CJEU has already dealt with an issue, and they did not permit the CJEU to rule on the interpretation, not just the validity, of EU law.

Finally, the rules on the Common Foreign and Security Policy (CFSP) were incompatible with EU law (paras 249-57), because a non-EU court cannot be given the power of judicial review over EU acts, even though the CJEU has no such jurisdiction itself as regards most CFSP issues.

Consequences

First and foremost, EU accession to the ECHR obviously cannot go ahead on the basis of the current draft agreement. The Court has in effect provided a checklist of amendments to the accession agreement that would have to be made to ensure that accession is compatible with EU law. The amendments would have to deal with the following ten issues:
(a) ensuring Article 53 ECHR does not give authorisation for Member States to have higher human rights standards than the EU Charter, where the EU has fully harmonised the law;
(b) specifying that accession cannot impact upon the rule of mutual trust in JHA matters;
(c) ensuring that any use of Protocol 16 ECHR by national courts cannot undermine the EU preliminary ruling system, presumably by ruling out the use of Protocol 16 where EU law issues are involved;
(d) specifying expressly that Member States cannot bring disputes connected with EU law before the ECtHR;
(e) ensuring that in the co-respondent system, the ECtHR’s assessment of admissibility does not extend to the power to interpret EU law;
(f) guaranteeing that the joint responsibility of the EU and its Member States for ECHR breaches cannot impinge upon Member State reservations to the Convention;
(g) preventing the ECtHR from allocating responsibility for ECHR breaches as between the EU and its Member States;
(h) ensuring that only the EU institutions can rule on whether the CJEU has already dealt with an issue;
(i) providing that the CJEU should be allowed to rule on the interpretation, not just the validity, of EU law, during the ‘prior involvement’ procedure; and
(j) curtailing the role of the ECtHR to rule on EU foreign policy matters.

Any such changes to the accession agreement will have to be negotiated by all 47 of the signatories to the ECHR. The accession agreement would, if agreed, then have to be ratified by all of these States to come into force. It would also have to be agreed unanimously by the EU Council, and ratified by the European Parliament. It’s hard to say in the abstract how difficult such a renegotiation will be. Suffice it to say that the compromise found in the current accession treaty was very difficult to reach, and it’s hard to imagine that the EU’s demand for a ten further amendments to that text – which would necessarily be non-negotiable – would be received happily.

Some of the Court’s objections probably correspond with the intentions of the parties to the accession agreement, and it should be easy to accept amendments reflecting that. However, some of them insist on either the primacy of the EU Courts over the ECtHR, or would give priority to EU law over the substance of the rights protected by the Convention. Those amendments would be difficult to agree in principle, and it might even be doubted whether they would be compatible with the intrinsic nature of the ECHR.

If those amendments were indeed be incompatible with the ECHR, there would be no point wasting further time and effort on negotiating them. So it would be best for the Committee of Ministers to invoke Article 47 ECHR, which allows it to ask the ECtHR to give an advisory opinion on the interpretation of the Convention or its protocols. Arguably, this doesn’t extend to the draft accession agreement, but then that agreement in its current form would amend the ECHR; any revised agreement would likely amend the ECHR even more. The ECtHR ought to have a chance to rule on whether the CJEU’s preferred amendments to the ECHR violate the fundamentals of the Convention system.

Could the Court’s objections (or some of them) be met by the EU making reservations to the ECHR? According to Article 57 ECHR, reservations to the Convention are permitted, provided that they are not of a ‘general character’. The ECtHR has ruled in the past that some reservations were invalid for breaching that rule. Much legal pain would be avoided if the ECtHR ruled in advance (using the advisory procedure) on whether possible reservations by the EU would be valid. Arguably reservations relating to CFSP or JHA matters would indeed be invalid, due to their ‘general character’.

What if the process of EU accession stalls as a result of this judgment? It’s hardly an unlikely scenario. As a matter of EU law, accession of the EU to the ECHR is an obligation: the EU ‘shall accede’ to the Convention. The EU institutions can be sued for any ‘failure to act’ to comply with their legal obligations. So arguably the Commission is under an obligation to request an amendment to its negotiation mandate, the Council is under an obligation to grant it, and the Member States are obliged to support the EU position (a breach of the latter obligation could be punished by means of infringement proceedings).

But a legal obligation deriving from the EU Treaties cannot bind third parties. If the ECtHR, or one or more non-EU Member States, refuse to continue with negotiations for accession on the basis of the CJEU’s demands, the EU institutions and the Member States could not be held liable for that.
The legal obligation to continue the accession process is, of course, distinct from the question of principle here: whether the accession process ought to continue on the basis of the CJEU opinion. I now turn to that question, as part of my assessment of the Court’s reasoning.

Comments

There are two categories of objections to the ECHR accession in the Court’s judgment: procedural and substantive. The former are, for the most part, much less problematic than the latter. Let’s consider them in turn.The procedural objections are essentially those in points (c) to (i) in the list above, concerning: Protocol 16 ECHR and the preliminary ruling process; inter-state dispute settlement; the co-respondent procedure; the prior involvement procedure; and CFSP matters. Seven of these eight points have one thing in common: preserving the CJEU’s power to rule on EU law. The exception is point (i), because to a large extent, the CJEU has no power to rule on CFSP matters.

From the point of view of substantive human rights protection, that first group of seven objections is not problematic in principle. It is reasonable for the CJEU to ensure that issues relating to EU law remain within its jurisdiction (where that jurisdiction currently exists), leaving the ECtHR jurisdiction to rule on the interpretation of the ECHR. Of course, it will be hard, if not impossible, in practice, to separate the two issues, particularly when it comes to ruling on the liability for breach of the Convention and the admissibility of the special procedures set up by the draft agreement.

But that is a minor problem compared to the Court’s objections relating to CFSP, and to the substance of the ECHR. On the CFSP point, the Court’s objection is quite simply mind-boggling. Human rights breaches unfortunately occur in foreign policy operations, ranging from violations of the right to life, to arbitrary detention to human trafficking by foreign forces. The CJEU has no jurisdiction to protect, as regards most CFSP matters; but it rules that the ECtHR cannot have judicial review powers either. (Note to public international lawyers: this must mean that it would also breach EU law for Member States to bring a CFSP dispute to the ICJ).

This goes beyond setting a dividing line over which Court has jurisdiction to interpret EU law: to repeat, the CJEU’s position is that if it can’t have jurisdiction over CFSP, then no other international court can either. In short. since it isn’t allowed to play, it’s taking the football away from everyone else. It’s the judicial politics of the playground. But it could have serious consequences, leaving the victims of serious human rights violations without an effective remedy at international level. Or is the entire world meant to trust that the military forces from the continent that brought us the Holocaust and two World Wars would never, when acting under the EU’s aegis, commit human rights offences?

This brings us to the two substantive points: the need to ensure that Member States do not set higher standards within the field of EU law, and the need to protect the principle of mutual trust in JHA matters. On the first point, the Court is today extending to the ECHR its long-standing principle that the primacy of EU law prevents Member States having higher human rights standards, where EU law has fully harmonised the matters concerned. From an EU law perspective, it’s perhaps not surprising that this rule – which the Court had previously applied to the general principles of EU law (the main previous method of protecting human rights in the EU legal system) and the Charter – also applies to the ECHR. But from the perspective of international human rights law, it’s shocking: it cuts into a central principle found in all human rights treaties.

The Court’s ruling on this point would be less problematic if it were not for its ruling on mutual trust in JHA matters. After all, if it were possible to resist removal to another Member State on human rights grounds despite the Dublin rules on asylum responsibility, or to resist the execution of a European Arrest Warrant on such grounds, then many violations of human rights in individual cases would be avoided. But the Court reiterates, in very strong terms, its established presumption that the EU is built on the principle of mutual trust in this area, which can only exceptionally be set aside. One can infer that the CJEU is seething about the ECtHR’s recent judgment in Tarakhel, which conspicuously failed to defer to the ECJEU’s poorly reasoned defence of the Dublin system in last year’s Abdullahi judgment (see discussion here).

On the JHA point, the Court is insisting that its own conception of the EU JHA system must prevail over human rights protection as defined by the ECtHR. The underlying theme of both of these substantive points is that the ECHR should adapt to EU law as defined by the CJEU, not the other way around.

Is that fundamentally justifiable? It’s striking that the ‘values’ of the EU – which are a condition for EU membership, and which could lead to suspension of a Member State in serious cases – include human rights and related principles. There’s no mention of the primacy of EU law, of mutual trust in JHA matters, or of divesting any international court from having jurisdiction over CFSP matters. Indeed, on the latter point, today’s judgment clearly shows contempt for the ‘rule of law’, another founding value mentioned in Article 2 TEU. And for JHA in particular, the Treaty drafters provided in Article 67(1) TFEU that the EU must ‘constitute an area of freedom, security and justice with respect for fundamental rights’. The Treaty doesn’t give priority to mutual trust over human rights – quite the opposite.

This leads me to a final point. As noted above, the EU retains a legal obligation to accede to the ECHR, and must therefore take some steps to that end. But, as a matter of principle, is it still worth advocating EU accession to the Convention?

Quite frankly, EU accession to the Convention, in the terms defined today by the CJEU, could only appeal to those who don’t like human rights very much. In fact, in many respects the Court’s judgment is essentially a more articulate and EU-specific version of the document recently produced by the UK’s Justice Minister, which sought changes to the law to ensure that the UK would be free to do as it wished as regards human rights issues, while (possibly) nominally remaining a signatory of the ECHR. Of course, those who dislike the ECHR tend to dislike the EU as well, so this is a narrow basis politically to go forward. In particular, those who would like to scrap the European Arrest Warrant (EAW) because of the miscarriages of justice which it sometimes produces (rather than try and prevent those miscarriages) are hardly likely to favour a process which would be specifically aimed to entrench those failings.
As for those of us who support human rights protection, today’s judgment is an unmitigated disaster. For the most part, human rights advocates have supported EU accession to the ECHR for many years, in order to ensure effective external control of the failings of the EU and (within the scope of EU law) its Member States as regards human rights. But today’s CJEU judgment has surgically removed that key reason for supporting accession.
Far from enhancing the protection of human rights within the EU legal order, the EU’s accession to the ECHR, on the terms which the CJEU insists upon, would significantly diminish it, for the EU would be compelled to ensure that it insulates itself against many human rights claims that might be brought against it.
So for the sake of those who are trafficked by EU-coordinated troops, who are suffering miscarriages of justice in EAW proceedings, who are being pushed back from the EU’s shores, drinking from toilets in immigration prisons, starving on the streets because Member States won’t or can’t give them housing or benefits, or drowning in a desperate attempt to reach European refuge, we now have a moral duty to reject the EU’s accession to the ECHR.

The data protection regime applying to the EU inter-agency cooperation and future architecture of the EU criminal justice and law enforcement area

(*) The full study for the European Parliament LIBE Committee can be downloaded HERE

By Professor PAUL DE HERT

EXECUTIVE SUMMARY

From a data protection perspective, fragmentation is the main characteristic of the legal framework in place in the agencies in the EU criminal justice and law enforcement area .
A multitude of EU agencies operates under their own individual legal framework with little regard for harmonization , consistency or even compatibility among their personal data processing , while the basic text that would supposedly set the common standard in the field , the Data Protection Framework Decision, expressly excuses itself from assuming this role.
Each one of the EU bodies and agencies operating within the EU criminal justice and law enforcement area is until today governed by its own legal constituting text (s) that customarily address data protection issues but however does so in a piecemeal and introverted way: supervision of data protection practices is vested upon each agency’s internal mechanisms and management. This architecture, that reflects the pre-Lisbon third pillar environment, has been preserved until today, despite of the fact that in the meantime interagency cooperation has proliferated: not only have formal bilateral cooperation agreements been entered among all EU agencies but also cooperation takes place outside EU borders as well , through chartered, or unchartered, personal data exchanges with third countries and international organisations.
Adequate data protection supervision, in the sense of a single, coordinated monitoring authority, is emphatically missing from all such exchanges.

The ratification of the Treaty of Lisbon is a milestone that affected the EU criminal justice and law enforcement area in more than one way. Among others, the culmination of a standalone individual right to data protection and the involvement of the European Parliament in any decision – making in the field are crucial factors that enabled an, admittedly much needed, change. Such change came in the form of a series of Commission proposals that were released over the past couple of years and which, if implemented, will completely restructure the current EU data protection architecture in the criminal justice and law enforcement area.
The Commission proposals originate from Article 16 TFEU, which introduces a new right to data protection and requires new rules on the personal data processing by EU agencies , as well as independent monitoring, but also from Declaration 21, which allows f or “specific rules” in the field.

To this end, the Commission introduced both general and agency-specific texts.
At a general level, a Police and Criminal Justice Data Protection Directive is intended to replace the Data Protection Framework Decision. At agency-specific level, the Europol and Eurojust draft Regulations are intended to replace the respective Decisions in force today; at the same time a new Regulation is aimed at introducing the European Public Prosecutor’s Office (EPPO) while work has been promised by the Commission also on amending Regulation 45/2001.
Such law-making process entails herculean efforts by all the bodies involved in it (the Commission, the Parliament and the Council) in order to keep the overhaul of data protection rules in force today (in the EU criminal justice and law enforcement field) synchronized and coordinated .

Although none of the above legislative proposals is yet finalized (in fact, only one has reached “trilogue” stage), the Commission’s preferred data protection architecture has become by now evident: the draft Directive is to replace the Framework Decision but not to affect any agency – specific personal data processing. This task will be undertaken by Regulation 45/2001 (or its successor) and the European Data Protection Supervisor (EDPS).

This architecture is basically taken for granted for the purposes of this analysis: regardless of its merits or drawbacks, other than the Commission also the Parliament has shown no substantial objection to it.

Therefore, the interplay of the instruments involved (the Police and Criminal Justice Data Protection Directive, Regulation 45/2001 or its successor, the Europol, Eurojust and EPPO Regulations) has been attempted to be sketched in the six different scenarios that follow , each in turn assessed in terms of legal and pragmatic plausibility under the current environment:
• A “unified model” scenario, under which the Police and Criminal Justice Data Protection Directive would regulate all the EU criminal justice and law enforcement area (including therefore the EU agencies operating therein);
• A “segregated model” scenario, whereby the Police and Criminal Justice Data Protection Directive would leave EU agencies’ personal data processing outside of its scope (as is currently the situation under the Data Protection Framework Decision ) ;
• An “interim segregated model” scenario, under which the above segregated approach would only last for a few years, after which EU agencies would have to bring their personal data processing under the Police and Criminal Justice Data Protection Directive;
• An “alternative unified model” scenario, that, as originally suggested by the Commission, would use Regulation 45/2001 as a common standard – setting text for all EU agencies, whose individual constituting legal instruments would subsequently supplement and further specify its provisions;
• A scenario whereby the current architecture is preserved and consequently neither the Police and Criminal Justice Data Protection Directive nor Regulation 45/2001 (or its successor) affect in any way the agency – specific (revised) texts, and
• An, unfortunately likely for the immediate future, scenario, whereby Regulation 45/2001 is not amended in time and all of Europol, Eurojust and EPPO Regulations , when adopted, will supplement and further specify its provisions, which are outdated and unsuitable for the criminal justice and law enforcement area.

National security and secret evidence in legislation and before the courts: exploring the challenges

FULL STUDY DOWNLOADABLE HERE
Visit the European Parliament’s Studies website:

EXECUTIVE SUMMARY
This Study examines the way in which justice systems across a selection of EU Member States use and rely on intelligence information that is kept secret and not disclosed to the defendants and judicial authorities in the name of national security.
It analyses the laws and practices in place from the perspective of their multifaceted impact on the EU Charter of Fundamental Rights (in particular its provisions related to the rights of the defence and freedom of information and expression), as well as on wider ‘rule of law’ principles. The analysis is based on a comparative study of the legal regimes, interpretations by domestic and European tribunals as well as key developments and contemporary practices concerning the use of intelligence information as ‘evidence’ and the classification of information as ‘state secrets’ during trials in the name of ‘national security’ in the following seven EU Member States (EUMS): the United Kingdom, France, Germany, Spain, Italy, the Netherlands and Sweden.

The examination has highlighted a number of key research findings.

It first shows a wide variety of national legal systems and judicial practices embedded in domestic historical, political and constitutional trajectories characterising each Member State jurisdiction (see Section 1 of the Study and Annex 5 with detailed Country Fiches).
The United Kingdom and the Netherlands are the only two Member States examined with official legislation allowing for the formal use of classified intelligence information in judicial proceedings. The United Kingdom constitutes an ‘exception’ in the broader EU landscape due to the existence of the much-contested ‘Closed Material Procedures’ (CMPs) – secret court hearings where only the judge and security-cleared special advocates are given access to sensitive intelligence material. The Netherlands operates a system of ‘shielded witnesses’ in courts, allowing intelligence officials to be heard before a special examining magistrate (Sections 1.1. and 1.2 of this Study). Other EUMS analysed (Germany, Spain and Sweden) present indirect judicial practices in which certain evidence may be hidden from a party during trials under a number of conditions (Section 1.3).

Nevertheless, the Study demonstrates that secret evidence is not always legal evidence. In countries such as Germany, Italy or Spain the rights of the defence and the right to a fair trial cannot be ‘balanced’ against national security or state interests as this would directly contravene their respective constitutional frameworks (Section 1.4).

Yet, all EUMS under examination face a number of challenges as regards the difficult and often controversial declassification or disclosure of intelligence materials, which too often lacks proper independent judicial oversight and allows for a disproportionate margin of appreciation by state authorities (Section 1.5 of this Study).

Another issue resulting from the comparative investigation relates to the fuzziness and legal uncertainties inherent to the very term ‘national security’ (as evidenced in Section 1.6 and Annex 3).
While this notion is quite regularly part of political and legal debates in EU and national arenas, the Study reveals that a proper definition of what national security actually means is lacking across a majority of EUMS under investigation.
The few definitional features that appear in EUMS’ legal regimes and doctrinal practices fail to meet legal certainty and ‘rule of law’ standards, such as the “in accordance with the law” test (see below). This too often leads to a disproportionate degree of appreciation for the executive and over-protection from independent judicial oversight, which is further exacerbated in a context where some EUMS have bilateral systems of mutual respect of state secrets with third countries such as the US.
Moreover, the disparities and heterogeneous legal protection regimes among EUMS also mean that EU citizens who are suspects in judicial procedures are protected differently or to divergent degrees across the EU. There are variable ‘areas of justice’ in the EU when it comes to the rights of defence of suspects in cases dealing with national security and state secrets. This diversity is at odds with the ambition of developing a common AFSJ and achieving non discrimination between EU nationals when it comes to the delivery of fundamental rights.

A second key finding of the Study relates to a growing transnational exchange of intelligence and use of these intelligence materials before courts (as developed in Section 2 and Annex 1 of this Study).

The 2013 Snowden revelations provide the general context within which EUMS’ regimes and practices need to be analysed. There has been a growing expansion of intelligence cooperation across the world, which is mainly transatlantic and asymmetrical in nature due to the more prominent role played by the US.
This has strengthened the view that transnational threats require a more extensive sharing of raw data on individuals collected by internet or mobile devices. This trend poses a number of dilemmas from the perspective of judicial accountably and the rule of law (Section 2.1 of this Study). One relates to the difficulties in assessing the quality, lawfulness and accuracy of the information, and the extent to which this very information can be considered ‘evidence’ in trials (Section 2.2). The current reliance on intelligence information is, moreover, problematic in light of insufficient or deferential judicial oversight of executive decisions taken ‘in the name of national security’.
This is particularly also the case in respect of the ways in which the use of state secrets can disrupt government officials’ accountability in cases of alleged ‘wrongdoing’ (Section 2.3).

A third finding concerns an emerging set of European judicial standards from the European Court of Human Rights (ECtHR) and the Court of Justice of the European Union (CJEU) on issues related to intelligence information, national security and state secrets, in particular when these affect the rights of the defence (refer to Section 3, Annex 1 and Annex 2 of this Study).

One of the most important legal standards when assessing national security and intelligence information is the “in accordance with the law” principle. Continue reading

Presumption of Innocence and the Right to be Present at Trial: the Meijers Committee’s (*) position

Original published HERE

The Meijers Committee has taken note of the General Approach adopted by the Council on the Proposal for a directive of the European Parliament and of the Council on strengthening certain aspects of the presumption of innocence and the right to be present at trial in criminal proceedings (dated 4 December 2014, Council Doc. 16531/14). The Meijers Committee emphasises the great importance of the presumption of innocence and related rights in criminal proceedings to suspected and accused persons. Following the extensive revisions in the Council preparatory bodies and the General Approach ultimately adopted, the Meijers Committee invites the Parliament and the Council to take the following remarks and suggestions into consideration.

Subsidiarity of the proposal

A number of Member States have expressed doubt as to the added value of the current proposal. Together with the Dutch Advisory Council on International Affairs, the Meijers Committee is of the opinion that harmonizing procedural rights is most desirable in light of previously agreed European cooperation in criminal matters.(1) This ensures the legal protection of individuals throughout the Union. The Meijers Committee notes that although guarantees as to the presumption of innocence and the right to be present at trial are of an adequate standard in many Member States, harmonization will enhance the mutual trust which mutual recognition presupposes.

Material scope: not only criminal law

The proposal limits the scope of application of this directive to criminal proceedings only. Administrative proceedings, including administrative proceedings that can lead to sanctions, such as proceedings relating to competition, trade, financial services, or tax, including tax surcharge, and investigations by administrative authorities in relation to such proceedings, as well as civil proceedings, are not covered by this Directive (recital 6).

The Meijers Committee finds this general exclusion of administrative law from the scope of application of this directive to be unjustified. The Meijers Committee recalls the long line of case-law of the European Court of Human Rights, which establishes that the application of administrative law can be (extremely) punitive in nature (e.g. fines in tax law), and hence fall within the scope of Article 6 ECHR concerning a fair trial.(2) Many branches of law, such as those mentioned in the recital above and social security and agricultural law, are upheld by administrative law and its administrative sanction system, not by the criminal law. Although the sanctioning system is a national choice, the Meijers Committee sees no justification for allowing the Member States to choose whether or not a European human right standard, such as the “presumptio innocentiae”, should apply when the sanction is punitive in nature. The Meijers Committee recommends that Article 2 be expanded to cover all administrative proceedings and investigations that can lead to sanctions. Continue reading

Statewatch Analysis:  The Proposed Data Protection Regulation: What has the Council agreed so far?

By Steve Peers, Professor of Law, University of Essex
Twitter: @StevePeers 8 December 2014

Introduction

Back in January 2012, the Commission proposed a new data protection Regulation that would replace the EU’s existing Directive on the subject. It also proposed a new Directive on data protection in the sphere of law enforcement, which would replace the current ‘Framework Decision’ on that subject.
Nearly three years later, there has been some gradual progress on discussing these proposals. The European Parliament (which has joint decision-making power on both proposals) adopted its positions back in the spring. For its part, the EU Council (which consists of Member States’ justice ministers) has been adopting its position on the proposed Regulation in several pieces. It has not yet adopted even part of its position on the proposed Directive.
For the benefit of those interested in the details of these developments, the following analysis presents a consolidated text of the three pieces of the proposed Regulation which the Council has agreed to date, including the parts of the preamble which have already been agreed. I have left intact the footnotes appearing in the agreed texts, which set out Member States’ comments.
The underline, italics and bold text indicate changes from the Commission proposal. I have added a short summary of the subject-matter of the Chapters and Articles in the main text which have not yet been agreed by the Council.
For detailed analyses of some parts of the texts agreed so far, see the links to the two blog posts.
The Council might always change its current position at a later point, and of course the final text of the new legislation will also depend on negotiations between the Council and the European Parliament.

Background documents :‘Public sector’ provisions, agreed by Dec. 2014 JHA Council:
Chapter IV, agreed by Oct. 2014 JHA Council: Rules on territorial scope, agreed by June 2014 JHA Council: Proposal from Commission:Position of European Parliament: Analysis of agreed territorial scope rules: Analysis of agreed ‘privacy seals’ rules:

SEE THE FULL CONSOLIDATED TEXT ANALYSIS (85 pages) HERE

LGBTI ASYLUM-SEEKERS: THE CJEU SENDS MIXED MESSAGES

by Professor Steve Peers

ORIGINAL PUBLISHED HERE
Many countries worldwide still impose severe criminal sanctions and other forms of ill treatment on people who are gay, lesbian, transgender or intersex (LGBTI). Fortunately, according to the CJEU, any non – EU citizen suffering persecution on grounds of sexual orientation can seek asylum in the EU, claiming that they are part of a ‘particular social group’ being persecuted, in accordance with the EU’s qualification Directive.
The Court’s prior case-law (the X, Y and Z judgment of 2013) further clarifies that they do not have to keep their sexuality hidden in their country of origin in order to claim refugee status. But the mere existence of criminal law prohibitions in the country of origin doesn’t necessarily mean that LGBTI asylum-seekers are being persecuted: the crucial question is whether such laws are actually being enforced.
Before getting to the issue of persecution, though, how can the authorities check whether asylum-seekers are gay or lesbian in the first place? In today’s judgment in A, B and C, the CJEU rules out the most obnoxious forms of procedures to determine sexual orientation, but still leaves some leeway for dubious behaviour by national authorities.
The judgment
Asked by a Dutch court to clarify what national authorities can do to establish the sexual orientation of asylum seekers, the CJEU begins by stating that a mere self declaration by the asylum seeker is not sufficient. This is only the starting point of the assessment.
Although EU legislation does not address the issue of the credibility of asylum seekers in much detail, the CJEU states that the process of determining credibility must be consistent with the EU Charter of Fundamental Rights. In principle, the same rules apply to all categories of asylum seekers, but they can be adapted to particular groups.
First of all, the CJEU states that questions ‘based on stereotypical notions may be useful’ to national authorities. But they cannot base their decisions purely on such notions, and the asylum seeker’s inability to answer such questions cannot mean that he or she has no credibility.
Secondly, the CJEU rules against detailed questioning about asylum seekers’ sex life, on the grounds that this would breach Article 7 of the Charter (the right to privacy). (On the questions which are asked in practice, see Colin Yeo’s earlier poston the Free Movement blog).
Thirdly, the CJEU rules that LGBTI asylum-seekers should not perform sex acts, produce films of their sexual activities or undergo medical testing to prove their orientation. This would breach Article 1 of the Charter (the right to human dignity) as well as Article 7.
Finally, the CJEU rules that Member States cannot assume that LGBTI asylum-seekers lack credibility simply because they didn’t raise the issue of their sexuality as soon as possible, in light of the sensitivity of the topic. However, the Court does not rule on some additional procedural issues considered in the Opinion of the Advocate-General.
Comments
The Court’s judgment frees LGBTI asylum-seekers from many particularly obnoxious forms of testing and questioning. In particular, it frees them from phallometric testing. The Court didn’t mention the details of this process, but suffice it to say that it involves examining men’s physical reaction to viewing pornography. The judgment should have added that this process is also a breach of Article 4 of the Charter, as a form of degrading treatment.
As for producing films or engaging in sex acts, the Court was right to rule out implicitly the possible waiver of privacy rights on the grounds that other asylum-seekers would be pressured to do the same thing.
The ruling also usefully clarified that LGBTI asylum-seekers do not need to declare their sexual orientation as soon as possible. This takes account of the social reality for people who have just fled countries where their personal identity is taboo.
On the other hand, today’s judgment is unhelpful to the extent that it refers to the possibility of ‘useful stereotypes’ when questioning LGBTI asylum-seekers. Although the Court only refers in this context to questions about the existence of NGOs supporting LGBTI individuals, many other stereotypes exist. The Court ruling might be interpreted to endorse assumptions that (for instance) gay men don’t like sports, or that lesbians have short hair. Such stereotypes might be only mildly annoying on a day – to – day basis. But if they are used in order to reject an asylum claim, they could be fatal to the person concerned.
Admittedly, the Court rules out relying on the answers to such questions as the sole basis for denying asylum. Nor is it possible to decide that an asylum seeker who can’t answer such questions has no credibility. But it is still possible that an asylum seeker will lose credibility if he or she gives the ‘wrong’ answer to these questions; and those answers can form part of the assessment of credibility.
More broadly, the Court’s approach fails to take sufficient account of the wide diversity of the expression of human sexual identity, especially in countries where homosexuality is taboo.
While some questions relating to LGBTI asylum-seekers’ credibility must be acceptable, given that the Court ruled out self – declaration as an automatic route to establish such credibility, the Court could surely have found a better form of words than ‘useful stereotypes’. It could, for instance, have endorsed the relevant UNHCR guidelines discussed in the Advocate-General’s opinion.
Although there are many positive aspects of today’s judgment, the CJEU’s unjustified aversion to human rights soft law may cause problems for many LGBTI asylum-seekers in practice.

Unaccompanied minors: the Meijers Committee criticizes the Council Presidency amendments to the Dublin III Regulation

ORIGINAL PUBLISHED HERE

The Meijers Committee (*) is of the opinion that the judgment in case C-646/11 on the position of unaccompanied minors should be implemented fully. This would be in conformity with both the political agreement reached by the co-legislators upon the adoption of the Dublin III regulation and the requirements of the Charter of Fundamental Rights. Accordingly, the original Commission proposal should be adopted, without the changes made in the Council Presidency compromise text. In addition, the Meijers Committee believes that it is in the best interest of the child to extend these provisions to unaccompanied minors who do not lodge an application for international protection. Finally, the Meijers Committee suggests that effective remedies should also be ensured against decisions not to transfer an asylum applicant.

Introduction

The Meijers Committee has taken note of the proposal1 of the European Commission of 26 June 2014 to amend Regulation 604/2013 (the Dublin III Regulation) and the changes made to this proposal in the Presidency compromise text of 20 November 2014.2

The proposal seeks to revise Article 8(4) of the Regulation in the light of the judgment of the Court of Justice of the European Union in case C648/11 MA and Others vs. Secretary of State for the Home Department. In this judgment the Court of Justice ruled that ‘where an unaccompanied minor with no member of his family legally present in the territory of a Member State has lodged asylum applications in more than one Member State, the Member State in which that minor is present after having lodged an asylum application there is to be designated the Member State responsible’.

Article 8(4a) of the proposal reflects this judgment. However, Articles 8(4b and c) of the Presidency compromise text of 20 November 2014 state that, by way of derogation from Article 8(4a), the Member State which has already taken a decision at first instance on the basis of an adequate and complete examination of its substance is responsible under the Dublin Regulation. This does not conform with the judgment in Case C-648/11.

The proposal also addresses the situation of unaccompanied minor asylum applicants who are present in the territory of a Member State and who do not lodge an application there.  Such a situation was not covered by the judgment in case C-648/11. Article 8(4b) of the proposal provides that in that case the unaccompanied child should be transferred to the Member State where he has lodged his or her most recent application, unless this is not in his best interest. The Meijers Committee welcomes the fact that the proposal ‘takes highest account of the Court of Justice’s ruling in case C-648/11’. However, the Committee also wishes to put forward several comments, in particular with regard to Articles 8(4b and c) of the compromise text and Article 8(4d) of the proposal.

A full implementation of the judgment in Case C-648/11

Case C-648/11 concerned the interpretation of Article 6 of Regulation 343/2003 (the Dublin II Regulation). Some Governments contend that this judgment therefore does not require the Union legislator to bring the Dublin III Regulation into conformity with the Court’s judgment. In fact, the Dutch Government put forward the counterargument that such a rule promotes asylum shopping.3 It therefore argues that the rules for transferring asylum seekers pursuant to the Dublin III Regulation should be the same for children and adults alike.4

The Meijers Committee is of the opinion that the Union Legislator cannot but implement the judgment in case C-648/11. It is true that the Court of Justice in case C-648/11 pertained to the old Dublin II regulation. However, the Meijers Committee recalls that upon adoption of the final text of the Dublin III regulation, the co-legislators attached a declaration in which they committed themselves to amending Article 8, once the judgment in C-648/11 was delivered. The Meijers Committee understands this to mean that the Council and Parliament settled their differences by seeking guidance from the Court. Moreover, as explained below, the Court in its ruling explicitly addressed concerns about so-called ‘asylum shopping.’

There are sound legal reasons to implement the Court’s ruling. The Court took into account the objectives of Article 6 (i.e. to make separate provisions for unaccompanied minors) and the Dublin II regulation as a whole (i.e. to guarantee effective access to an assessment of the applicant’s refugee status). The Court held that [s]ince unaccompanied minors form a category of particularly vulnerable persons, it is important not to prolong more than is strictly necessary the procedure for determining the Member State responsible, which means that, as a rule, unaccompanied minors should not be transferred to another Member State.’ The protection of (unaccompanied) minors and effective access to the procedures for granting international protection are also important objectives of the Dublin III regulation.5

Further, the Court of Justice held that Article 24(2) of the Charter of Fundamental Rights of the European Union (the Charter) requires that the child’s best interests must be a primary consideration in decisions concerning the transfer of unaccompanied minors. According to the Court of Justice it is in the interest of unaccompanied minors not to prolong unnecessarily the procedure for determining the Member State responsible, and to ensure that unaccompanied minors have prompt access to the procedures for determining refugee status’. Therefore an unaccompanied minor who lodges an asylum claim in a Member State and is present there should not be transferred to the Member State where he first lodged an asylum claim.

Article 8(4) of the current Dublin III regulation should also be interpreted in conformity with Article 24(2) of the Charter and thus, in principle, prevent the transfer of an unaccompanied minor.6

Legality of the derogation provisions laid down in Article 8(4b and c) of the compromise text

The principles set out by the Court of Justice in its judgment in Case C-648/11 apply to all unaccompanied minors. The question whether these minors still have an asylum procedure pending or completed in another Member State was irrelevant to the Court. However, Article 8(4b and c) of the compromise text provides that an accompanied minor who is present and lodges an asylum claim in a Member State should be transferred to another Member State if that Member State has already taken a final decision on the basis of an adequate and complete examination of its substance. Article 8(4c) contains short time limits in order to guarantee a relatively swift completion of the Dublin procedure. However, it may still take several months (six weeks for the decision in first instance and the time necessary to lodge an effective remedy and obtain a court decision) before the unaccompanied minor will be transferred.

This is not in conformity with the requirement following from the judgment in case C-648/11 that the Dublin procedure must not be prolonged unnecessarily and prompt access to the procedures for determining refugee status must be ensured.

Therefore these provisions violate Article 24(2) of the Charter. There is a clear risk that Articles 8(4b and c) of the compromise text will be declared invalid by the Court of Justice, should they be adopted by the Union legislator. In this respect, it is important to note that the Court of Justice found that a rule as laid down in Article 8(4a) as originally proposed does not entail a risk of asylum shopping.7 The Court considered that an unaccompanied minor whose application for asylum is substantively rejected in one Member State cannot subsequently compel another Member State to examine an application for asylum. According to the Court, Article 25 of Directive 2005/85/EC (asylum procedures directive) allows Member States to declare an asylum application inadmissible (and thus avoid examination of the substance of the application), if the asylum applicant has lodged an identical application after a final decision has been taken against him in another Member State.

The Member State which becomes responsible under Article 8(4) of the proposal needs to inform the Member State with which the first application has been lodged accordingly. In the reasoning of the Court therefore, there is no risk of asylum shopping, because a Member State may declare inadmissible an asylum application that is identical to an application on which another Member State has already finally decided. This possibility is maintained in the recast asylum procedures directive 2013/32/EU (Art. 33(1)(d)).

The Meijers Committee recommends deletion of paragraphs 4b and 4c (I – IV) in their entirety, as they do not comply with the Charter and the case law of the Court of Justice.

Taking back unaccompanied minors who have not claimed asylum

Article 8(4b) of the Commission proposal (Article 8(4d) of the compromise text) provides that Member States should inform unaccompanied minors who are present on their territory of their right to make an application and give them an effective opportunity to lodge an application in that Member State. If the unaccompanied minor does not lodge such application, he will as a general rule be transferred to the Member State where he has lodged his most recent asylum claim. Member States should refrain from transferring the minor if the transfer is not in his best interests.

The Meijers Committee finds that Article 24(2) of the Charter requires that the best interest of the child is a primary consideration in all decisions concerning the transfer of unaccompanied minors to another Member State. Unaccompanied minors belong to a category of particularly vulnerable persons, whether or not they have applied for asylum.8 It follows from the Court of Justice’s judgment in case C-648/11 that extensive procedures for determining the responsible Member State are not in a child’s best interest. This should therefore also apply to unaccompanied minors who did not lodge an application in the Member State in which they are present, as referred to in Article 8(4b) of the proposal.

The Meijers Committee is concerned that the rule laid down in the proposed Article 8(4b) will place the burden on the unaccompanied minor to prove that transfer is not in her or his best interest. Member States may be inclined to apply the general rule rather than performing a full best-interest determination before taking a decision to transfer or not. Furthermore, the proposed Article 8(4b) will encourage unaccompanied minors who do not wish to be transferred to another Member State to lodge an application, even if such an application has no chance of success. This would not be in the interest of the Member States nor in the best interest of the unaccompanied minor.

The Meijer Committee proposes that when the unaccompanied minor makes an informed decision not to apply for asylum, the Member State in which he is present shall perform a best interest determination before taking a decision on his transfer to another Member State. The duty to perform such a best interest determination should be included in Article 8(4b) of the proposal. The rule that the minor should be transferred to the Member State where he has lodged his most recent asylum claim should be deleted.

Legal protection in case the Member State decides not to transfer

The position of unaccompanied minors also highlights an anomaly in the Dublin Regulation in the sphere of effective remedies. Article 27 of the Regulation only ensures the right to an effective remedy ‘against a transfer decision’. Presumably this means that decisions not to transfer an applicant cannot be challenged before a court pursuant to the Regulation. The Meijers Committee has been informed of a number of cases in which an unaccompanied minor has expressly stated a preference to be transferred to another Member State, because a family member is present there, but where no take-charge request is submitted, or where the requested Member State refuses to accept such a request. The Regulation presumes that this a matter for the Member States to settle among themselves. Where, however, a decision not to transfer affects the asylum applicant in the enjoyment of his or her fundamental rights, such as the right to family life or the child’s best interests, an effective remedy against such a decision must be available. This follows clearly from Article 47 of the EU Charter of Fundamental Rights, which lays down that ‘[e]veryone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy’.

The Meijers Committee therefore proposes to change the text of Article 27(1) of the Regulation in such a way that an effective remedy is also open to decisions not to transfer an applicant:

Article 27 Remedies

The applicant or another person as referred to in Article 18(1)(c) or (d) shall have the right to an effective remedy, in the form of an appeal or a review, in fact and in law, [before a court or tribunal, against a transfer decision, a failure to submit a take-charge or take-back request as referred to in Articles 21, 23 and 24, or a decision on the request to take charge or to take back as referred to in Articles 22 and 25] before a court or tribunal.

NOTES

1 COM(2014) 382 final.

2 Council Document No 15567/14 of 20 November 2014.

3 Case C-648/11 MA and Others vs. Secretary of State for the Home Department, para 63.

4 TK 2013-2014, 22 112, nr. 1895.

5 See recitals 5, 13 and 16 and Art. 8 of the Regulation.

6 Case C-648/11 MA and Others vs. Secretary of State for the Home Department, para 58.

7 Case C-648/11 MA and Others vs. Secretary of State for the Home Department, para 63.

8 ECtHR 4 November 2014, Tarakhel v Switzerland, Appl. no. , para 119.

 

 

 

 

(*) About: The Meijers Committee is an independent group of legal scholars, judges and lawyers that advises on European and International Migration, Refugee, Criminal, Privacy, Anti-discrimination and Institutional Law. The Committee aims to promote the protection of fundamental rights, access to judicial remedies and democratic decision-making in EU legislation. The Meijers Committee is funded by the Dutch Bar Association (NOvA), the Dutch Refugee Council (VWN), Forum Institute on Multicultural Affairs, the Dutch Section of the International Commission of Jurists (NJCM), Art. 1 Anti-Discrimination Office, and the Dutch Foundation for Refugee Students UAF. Contact info:

Louis Middelkoop Executive secretary l.middelkoop@commissie-meijers.nl +31(0)30 297 4328

Please visit http://www.commissie-meijers.nl for more information.

Towards a European Union legislation on presumption of innocence in criminal law

By Claire PERINAUD

(FREE Group trainee)

“The law holds that it is better that ten guilty persons escape that one innocent suffer” Sir William Blackstone, (Commentaries on the Laws of England -1760).

Foreword

For a long time, legal proceedings have been based on factual events. As far as they cannot be proven to be correct 100% of the time, judges had to use legal presumptions. Indeed, the purpose of presumptions is to distribute the burden of proof in order to give a solution to cases without clear evidence . If the parties to an adversarial case are not able to prove, presumption will prevail and the case will be decided against it[i].

The presumption of innocence, according to which one has to  be considered innocent until his or her guilt can be proven by the prosecution and beyond reasonable doubts, was the answerto this need . Dating back toRoman law and originally considered as a procedural rule, the presumption of innocence became progressively the core principle of criminal proceedings[ii], as well as the ‘axiomatic and elementary’ cornerstone of the right to a fair trial[iii].

As a mark of its accession to the rank of a human right, the presumption of innocence is nowadays enshrined in different international instruments, such as at art. 11 of the Universal Declaration of Human Rights of 1948, at art. 14 of the International Covenant on Civil and Political Rights of 16 December 1966, which has been the object of the General Comment 32 by the Human rights Committee.[iv]

The presumption of innocence is also enshrined as the basis of the right to a fair trial and the right of defence of the accused or suspected by article 6 § 2 of the European Convention of Human Rights of 4 November 1950.

In the European Union, before the entry into force of the Lisbon Treaty the presumption of innocence was recognised by the CJEU jurisprudence mostly in the field of competition law. The Luxembourg Court recognised that the presumption of innocence and the applicable rules of evidence, such as those concerning the burden of proof, were general principles of law, whose non-observance would amount to an error of law[v]

However, after the entry into force of the Lisbon Treaty, article 48 § 1 of the Charter of Fundamental Rights of the European Union  is now the clear reference at primary law level to the need to respect for this principle. . It is worth noting that according to  the Charter’s Explanations the right in Article 48(1) is to be given the same meaning and scope as the rights guaranteed by Article 6(2) of the ECHR, as stated by the art. 52 § 3 of the same Charter. Therefore the understanding of what presumption of innocence would mean at the EU level implies a close scrutiny to the ECHR case-law, with the possibility for EU to stem higher standards of protection.

Preparing a specific EU legislative framework for presumption of innocence Continue reading

The End of the Transitional Period for Police and Criminal Justice Measures Adopted before the Lisbon Treaty. Who Monitors Trust in the European Justice Area?

 Abstract of a study submitted to the European Parliament Civil Liberties Committee. (LIBE) THE FULL TEXT IS AVAILABLE HERE

Authors:                                                                                                                            Prof. Valsamis Mitsilegas, Head of Department of Law and Professor of European  Criminal Law, Queen Mary, University of London                                                                  Dr Sergio Carrera, Senior Research Fellow and Head of Justice and Home Affairs           Section, Centre for European Policy Studies, CEPS                                                                Dr Katharina Eisele, Researcher, CEPS

This Study examines the legal and political implications of the forthcoming end of the transitional period, enshrined in Protocol 36 to the EU Treaties, applicable to legislative measures dealing with police and judicial cooperation in criminal matters and adopted before the entry into force of the Lisbon Treaty. The analysis focuses on the meaning of the transitional period for the wider nature and fundamentals of the European Criminal Justice area and its interplay in the Area of Freedom, Security and Justice (AFSJ). Particular attention is paid to its multifaceted consequences of ‘Lisbonisation’ as regards supranational legislative oversight and judicial scrutiny, not least by the European Parliament in this context, as well as its relevance at times of rethinking the relationship between the principle of mutual recognition of judicial decisions and the fundamental rights of the defence in criminal matters in the AFSJ.

Legal Framework of the Transition

The transitional provisions envisaged in Protocol 36 have limited some of the most far-reaching innovations introduced by the Treaty of Lisbon over EU cooperation in justice and home affairs (JHA) for a period of five years (1 December 2009 to 1 December 2014). Such limits include restrictions on the enforcement powers of the European Commission and of the judicial scrutiny of the Court of Justice of the European Union over legislative measures adopted in these fields before the entry into force of the Lisbon Treaty under the old EU Third Pillar (Title VI of the former version of the Treaty on the European Union). Moreover, Protocol 36 provides for special ‘opt-out/opt-in’ possibilities for the UK. The scope and rules set out in Protocol 36 are of a highly complex and technical nature. The end of the transitional period enshrined in Protocol 36 reveals a complex conglomerate of legal provisions and procedures primarily designed for meeting the interest of some Member States’ governments to limit EU scrutiny, supervision and enforcement powers over national implementation and compliance with European law on police and criminal justice cooperation. This is a critical juncture because the transitional provisions of Protocol 36 come to a formal end on 1 December 2014.

Findings and Challenges

The main legal and political challenges related to the transitional provisions of Protocol 36 are multifaceted. The forthcoming end of the transitional period will only partially address the diverse legal landscape of fundamental rights protection in Europe’s area of criminal justice. The Study argues that the non-participation of the UK in EU legal instruments dealing with suspects’ rights in criminal proceedings undermines severely the effective operability of pre-Lisbon Treaty instruments driven by the mutual recognition principle, such as the European Arrest Warrant, even if from a ‘black letter’ law perspective the UK is entitled to ‘pick and choose’. In addition, the complex legal setting has contributed to creating legal uncertainty and lack of transparency characterising EU criminal justice instruments and their common applicability and implementation across the EU. The ambivalent position of the UK opens up the emergence of different and even competing areas of justice as well as dispersed levels of Europeanisation where enforcement of the principle of mutual recognition and protection of suspect rights are variable and anachronistic across the Union.

That notwithstanding, the Study argues that one of the most far-reaching consequences of the end of the transitional period will be the shifting of supervision on compliance and faithful implementation of EU law on police and criminal justice from domestic authorities in the Member States to EU institutional instances. The end of the transition will most significantly mean the liberalisation of ‘who monitors trust in the AFSJ’. This shift will for the first time ensure transnational legal, judicial and democratic accountability of Member States’ laws and practices implementing EU law in these contested areas, in particular the extent to which EU legislation is timely and duly observed by national authorities.

Protocol 36 does not foresee a formal role for the European Parliament in the decisions involved in the transition. Yet, the Parliament does have responsibility for the partly highly sensitive content of the Third Pillar measures directly affecting the citizens’ rights and freedoms and as co-legislator in post-Lisbon Treaty laws in these same domains. The lack of an effective and independent evaluation mechanism of EU criminal justice instruments based on the principle of mutual recognition poses a major challenge to legal and democratic accountability.

Protocol 36 has primarily aimed at limiting the degree of supranational (EU) legal, judicial and democratic scrutiny concerning EU Member States’ obligations in the EU Area of Justice. The legal patchwork of UK participation in pre- and post-Treaty of Lisbon criminal justice acquis indeed sends a critical signal of incoherency in the current delineation of the European Criminal Justice Area. The Study argues that the varied landscape resulting from the selective participation of the UK in EU criminal law measures poses significant challenges for legal certainty, the protection of fundamental rights in Europe’s area of criminal justice and the overall coherence of EU law.

Article 82(2) TFEU grants express EU competence to legislate on rights of the defence in criminal procedures where necessary to facilitate the operation of the principle of mutual recognition in criminal matters. The legality of post-Lisbon legislation on defence rights is thus inextricably linked with the effective operation of mutual recognition in criminal matters, including of the Framework Decision on the European Arrest Warrant. This is supported by pertinent case law of the Court of Justice of the European Union (CJEU), which ruled against previous UK requests to participate in the Visa Information System, or the Frontex and biometrics regulations on the basis of a teleological and contextual approach focusing on the coherence of EU law.

The Study argues that defence rights should not be negotiable at the expense of citizens’ and residents’ rights and freedoms. There is a direct causal link under EU primary law between the adoption of EU defence rights measures and the effective operation of mutual recognition enforcement instruments. Differing levels of EU Member State commitment to and participation in the fundamental rights of individuals in criminal proceedings run counter to a teleological approach which respects fully the objectives and the integrated nature of the AFSJ.

Recommendations

  • Increasing Coherency and Practical Operability: Suspects Rights as Sine qua non

The transition envisaged in Protocol 36 may well lead to incoherency and practical inoperability of the European Criminal Justice Area. The European Parliament as co-legislator in EU criminal justice law has an active role to play at times of ensuring that a common understanding of ‘ensuring coherency’ and ‘practical operability’ of the EU AFSJ is firmly anchored on strong defence rights and fair trial protection (rights of suspected or accused persons) and a sound rule of law-compliant (on-the­ground) implementation across the domestic justice arenas of EU Member States.

  • Promoting Consolidation and Codification — Better Linking of Mutual Recognition and Rights of Suspects in Criminal Proceedings

The European Parliament should give priority at times of implementing previous inter-institutional calls for consolidation and even codification of existing EU rules and instruments dealing with judicial cooperation in criminal matters. The new LIBE Committee should follow up the calls outlined in the European Parliament Report with recommendations to the Commission on the review of the European Arrest Warrant (2013/2109(INL). This should go along with the full accomplishment of the EU Roadmap of suspects’ rights in criminal proceedings as well as the procedural rights package.

  • Implementation and Evaluation — A Stronger Democratic Accountability

The European Parliament should give particular priority to better ensuring Member States’ timely and effective implementation of pre- and post-Lisbon Treaty European criminal law. An effective and independent evaluation mechanism should be developed following the template provided by the new 2013 Schengen Evaluation Mechanism, in which the European Parliament has played a role in the decision-making and implementation. This template should be followed at times of implementing any future system for criminal justice cooperation.

The Study starts by situating the discussion and briefly explaining the material scope and particulars featuring the transitional period in Protocol 36 in Section 2. Section 3 then moves into locating the debate in the specific context of the UK, and outlining its casuistic or privileged position in respect of the expansion of `supranationalism’ over EU police and criminal justice cooperation. Section 4 identifies a number of cross-cutting dilemmas and challenges affecting the transitional period, in particular those related to the impact of activating the Commission and Luxembourg Court’s legal and judicial scrutiny powers, questions of incoherencies due to UK’s variable participation and the obstacles to practical operability. Section 5 lays down three potential scenarios for the way forward in what concerns issues of fragmentation and coherence, reforming old EU Third Pillar law and the EAW while ensuring their added value, and questions related to implementation, consolidation and codification of EU criminal law. Section 6 offers some conclusions and puts forward a set of policy suggestions to the European Parliament and its LIBE Committee.

Towards a Declaration of Internet Rights

by Professor Stefano RODOTA’ (FREE Group member) (*)

For many years there has been a wide discussion about the possibility of adopting an Internet Bill of Rights, and debates have produced a considerable number of proposals. The Berkman Centre at Harvard University counted 87 of such proposals, to which we can add the Internet Magna Charta that Tim Berners-Lee is working on, and lastly the Declaration of the Rights of Internet Rights that has been drafted by a Committee established by the President of the Italian Chamber of Deputies. The novelty of the latter is that for the first time the proposal of an Internet Bill of Rights has not been produced by scholars, associations, dynamic coalitions, enterprises, or groups of stakeholders, but by an institutional entity.

It is necessary to recall that the debate on this topic dates back to the World Summit on the Information Society organised in 2005 by the UN in Tunis, where the need for an International Convention on Internet rights was explicitly underlined. This subject was deepened in the following UN Internet Governance Forums. But the international debate was progressively turned into precise rules within the European Union, even before the issue of the Internet Bill of Rights appeared in the international arena. These are not, however, parallel situationsdestined not to meet at any point. The European Union progressively brought to light the constitutional basis of the protection of personal data, finding its full recognition in Article 8 (**) of its Charter of Fundamental Rights. Here a strong similarity with the Internet Bill of Rights is identified, and it concerns precisely the constitutional scope of rules.

We are going through a phase of deep change in the way in which we are facing the problems highlighted by the Internet dynamics, in the passage from Web 1.0 to Web 2.0 and now to Web 3.0. It is not just a matter of following technological changes by adjusting legal provisions to suit them. A new definition is being developed of the rationale driving actions in this area, through a radical U-turn as regards the dynamics of the latest phase. A possible historical turning point is ahead of us, whose/that’s opportunities must be seized.

It seemed that an approach had become consolidated, which left little room to rights. From Scott McNealy’s abrupt statement of 1999 – “You have zero privacy. Get over it” – up to the recent hasty conclusion by Mark Zuckerberg about the end of privacy as a “social rule”, a line characterised by the intertwining of two elements emerged: technological irresistibility and the primacy of the economic logic. On the one side, in fact, it was highlighted how technological innovations and the new social practices made it increasingly difficult, not to say impossible, the safeguard of one’s private life and of the public liberties; on the other side, the statement on the “death of privacy” had become the argument to state that personal information had to be considered as property of those who collected it.

These certainties were radically challenged by Edward Snowden’s disclosure on the magnitude of the National Security Agency’s Prism programme and by the judgements of the European Court of Justice on data retention and Google. The idea according to which the protection of fundamental rights shall give way to the interests of security agencies and enterprises was rejected.

A new hierarchy has been established, with the fundamental rights as the first and starting point. The US President had to admit the inadmissibility of the procedures provided for by the Prism program and the Court of Justice, with its decision of 8th April, that declared that the Directive on data retention was illegal. And in the Google case the same Court explicitly stated that “the fundamental rights under Articles 7 and 8 of the Charter (…) override, as a norm (…) the economic interest of the operator of the search engine”, in a perspective broadening the European Union’s jurisdiction beyond its borders.

We are faced with a true “resurrection of privacy” and, more generally, with the primacy of the need and legitimacy of rules effectively protecting the rights of Internet users. Making reference to article 8 of the Charter, the Court of Justice was acting as a true constitutional court, opening a new and wide perspective.

The Italian initiative

This is the framework within which the Italian initiative on the Declaration of Internet Rights was adopted. Its goal is not limited to having a text to be used for national debate only.

The establishment of the Committee that drafted the document, in fact, was preceded by an international conference gathering some of the authors of the Brazilian Marco Civil, the representatives of European Institutions, and several experts from different Countries.

The text drafted by the Committee was presented on 13th October during a meeting at the Chamber of Deputies with the Presidents of the Parliamentary Committees of Member Countries in charge of fundamental rights.

The present draft is now submitted to a four-month public consultation on the Internet, at the end of which the Committee will draft the final text. Such consultation, however, is also being carried out at a European and international level, as shown by the contacts with other European Parliaments and by the video conference that will be held at the beginning of December between the Italian and the French Committees. Consultations are also taking place with experts and associations from non-European Countries.

An ambitious target was set: drafting a text allowing a common international debate, accompanied by a constant monitoring by the Chamber of Deputies. The goal is not limited to working in the complex and remote perspective of an international convention. Short-term and feasible results can be achieved, concerning the strengthening of the European system, its developments and the relationships with other countries, and most of all the consolidation of a culture highlighting common dynamics in the different legal systems. In this way, the debate around a future Internet Bill of Rights may lead to the awareness that in the different legal systems several elements already exist that, once connected to one another, establish an informal Internet Bill of Rights. An evidence of such trend is found in the decisions of the Courts of the different Countries and in the choice of legislative models, as shown by the clear influence of the European model on the Brazilian Marco Civil.

The Italian Declaration is characterised by a fundamental choice. Differently from almost all the other ones, it does not contain a specific and detailed wording of the different principles and rights already stated by international documents and national Constitutions. Of course, these are generally recalled as an unavoidable reference. But the attempt of the Declaration, as a matter of fact, was to identify the specific principles and rights of the digital world, by underlining not only their peculiarities but also the way in which they generally contribute to redefining the entire sphere of rights.

The key words – besides the most well-known ones concerning the protection of personal data and the right to the informational self-determination – include access, neutrality, integrity and inviolability of IT systems and domains, mass surveillance, development of digital identity, rights and guarantees of people in Internet platforms, anonymity and right to be forgotten, interoperability, right to knowledge and education, and control over Internet governance. The importance of the needs linked to security and to the market is obviously taken into consideration, but the balancing of these interests with fundamental rights and freedoms cannot take place on equal terms, in the sense of ensuring first and foremost the full respect for rights and freedom according to the clear provisions of the Charter of Fundamental Rights and to European case law.

In particular, security needs shall not determine the establishment of a society of surveillance, control and social sorting. Economic needs are taken into consideration in the framework of the neutrality principle that, by guaranteeing the generative nature of the Internet, keeps the possibilities for innovation unchanged, and prevents strong subjects from creating conditions of exclusion of possible competitors. Furthermore, whenever Internet platforms provide public services that are essential for the life and the activities of people, it is necessary to guarantee the conditions for a suitable interoperability in compliance with the principle of competition and equal treatment of people.

Provided that not all the issues can be analysed in this document, it is suitable recalling the need to consider the access to the Internet as a fundamental right of individuals (Tim Berners-Lee compared it to the access to water), as an essential guarantee not only against any form of censorship, but also against indirect limitations, such as taxation as it is presently happening in Hungary. The set of rights recognised do not guarantee a general freedom on the Internet, but specifically aims at preventing the dependency of people from the outside, the expropriation of the right to freely develop one’s personality and identity as it may happen with the wide and increasing use of algorithms and probabilistic techniques. The autonomy in the management of personal data, therefore, shall also consider new rights as those not to be tracked and to keep silent the chip. This perspective requires a particular in-depth analysis, since a deeply interconnected society is being developed, with a passage to Internet of Things in forms that have suggested some people to speak of an Internet of Everything, which determines a digitalisation of day-to-day lives that is able to transform any person and their bodies.

People cannot be reduced to objects of external powers, they must recover the sovereignty on their digital person. Identity is a key issue. The free development of one’s personality must be safeguarded.

Starting from this set of references, it is necessary to thoroughly examine the issue of the transformation of copyright, whose analysis was postponed to the end of the consultation, since knowledge on the Internet appears as a shared asset that can be considered as a common global resource.

A broader perspective is therefore opened by the Italian draft Declaration, in consideration of the large amount of topics to be tackled and the debate between different points of view; and such Declaration is significantly in line with the European Union policy that particularly emphasises the Charter of Fundamental Rights. The unquestionable aspect is the need to fine-tune a constitutional policy for the Internet, whose users – presently amounting to three billion people – cannot rely on a freedom guaranteed by the absence of rules, as it is still presently stated.

The reality is very different, showing an interconnected network heavily regulated by private subjects that cannot be controlled and that have no democratic legitimation, as it happens – beyond any disputes – with the “Over the Top” operating on the Internet. Internet rights are denied by totalitarian regimes and, unfortunately, by democratic regimes as well. The perspective of a Declaration of Internet rights aims at developing – through procedures different from the ones of the past – the constitutional rules that are fundamental in order to allow the Internet to keep its main feature as a place of freedom and democracy, as the widest space of the history of mankind.

NOTE

(*) Intervention at the Friedrich-Ebert-Stiftung -FREE Group experts meeting on :
Internet: only a “single digital market” or also a space to promote fundamental rights – Towards a European “Marco Civil”? (November 12, 2014). The main idea of this experts’ conference has been to have a first look to the impact of the EU Digital Agenda on fundamental rights as framed by the Treaties, the EU Charter and the recent CJEU jurisprudence (Data retention, Google Case..). As stated by the Charter the individual should be at the center of all EU policies and this objective underpins the recent proposal for an Internet Bill Of Rights of the Italian Chamber of Deputies as well as other national examples (Brasilian “Marco Civil” and recent US initiatives at government, congress and civil society level).
Bearing in mind that EU is competent on most of the aspects dealing with Internet the question arises how to preserve and promote individual rights notably in the pending negotiations on legislative proposals notably on Data Protection, Net Neutrality and Network Security (NIS). Moreover what should be the future initiatives to be developed by the a new Commission’s legislative programme impacting on Internet ? How the future EU single digital market could preserve the principles of non-discrimination, and of informational self determination by strengthening the access to internet as a public common good ?
Together with Stefano Rodotà took also part to the Seminar
Claude Moraes Chairman of the European Parliament Civil liberties Committee (which adopted in 2009 a first Internet Bill of Rights resolution)
Jan Philipp Albrecht EP Rapporteur for the Data Protection Regulaiton and for the transatlantic “umbrella” Agreement
Paul Nemitz Director at the European Commission
Giovanni Buttarelli, Assistant European Data Protection Supervisor
Marc ROTENBERG Professor at the Georgetown University and Director of EPIC and Marie GEORGES expert at the Council of Europe
as well as Joe Mc Namee, Executive Director, European Digital Rights (EDRi).

(**) Article 8 Protection of personal data
1. Everyone has the right to the protection of personal data concerning him or her.
2. Such data must be processed fairly for specified purposes and on the basis of the consent of the person concerned or some other legitimate basis laid down by law. Everyone has the right of access to data which has been collected concerning him or her, and the right to have it rectified.
3. Compliance with these rules shall be subject to control by an independent authority