Towards a European regime of sea border rescue operations?

How is it possible to avoid conflict of competences between Member States concerning the surveillance of maritime borders in the south of the Mediterranean, as well as possible conflict concerning the responsibility to rescue vessels in danger or to reject illegal immigrants at the border?

These questions have been raised several times in the past by both the press and assiduous public opinion. Starting from the case of Cap Anamur, debates spread at the European Union level, where the control of the external borders of the Schengen area is now regulated by the Schengen Borders Code (which entered into force on 13 October 2006, CE Regulation  N. 562/2006 of the EP and the Council).

In fact the Schengen Code does not include a comprehensive regulation on sea borders control although it foresees, respectively in articles 12 and 13, surveillance modalities and rejection by costal guards. (*)

Events related to marine assistance and rescue are not regulated and therefore Member States refer to international conventions (and related protocols) such as the Montego Bay United Nations Convention on the Law of the Sea of 10 December 1982 – UCLOS- which requires the master of a ship to render assistance to any person found at sea in danger or distress under article 10 of the 1989 Convention on salvage, or, the International Convention for the Safety of Life at Sea of 1974 (SOLAS), – and more importantly  the International Convention on Maritime Search and Rescue of1979 –SAR-.

The main problems arises at the particle level. Thought the regulation may be consistent, the implementation varies widely between Member States. As the European Commission pointed out in its Study on the international law instruments in relation to illegal immigration by sea in 2007, “There is indeed a duty to respect fundamental rights when implementing the Schengen Code, but it is not stated explicitly in relation to surveillance operations. As regards the principle of non-refoulement, there are differences in the Member States’ interpretations of this principle of international law, with some Member States, for example, contesting its applicability in international waters.”

“Another difference between Member States relates to how they identify a situation requiring assistance: for some Member States the vessel must be on the point of sinking; for others it is sufficient for the vessel to be unseaworthy; some Member States require the people on board to request assistance, while others do not. The proposal is based on the SAR system and stipulates that as soon as there is any question about the safety of a vessel or a person the SAR authorities must be contacted and given all the information they need to determine whether or not this is an SAR situation According to the Sar Convention each search and rescue area have been delimited for each of  the country concerned search and rescue regions for which they are responsible and these regions do not necessarily correspond to the existing maritime borders.”

The SAR Convention also imposes a precise obligation to rescue and assist persons and ships in distress at sea regardless of nationality, status or circumstances in which the persons are found. The obligations relating to search and rescue include the transport to a safe place.

According to the Commission “Deciding where the people rescued should be taken is a difficult question and is seen as one of the weaknesses of the SAR system. The 2004 amendments require all states to cooperate in resolving SAR situations; the state responsible for the SAR region must, with their cooperation, decide where those rescued will be taken. One Member State did not accept these amendments. A particular point of contention was where those rescued should be disembarked if the state responsible for the SAR region failed to fulfil its obligations in this respect. Some Member States are reluctant to take part in operations because they fear that they will end up having to take those rescued to their own country.”

Such difficulties often become emergencies for the persons involved in the rescue operations. Therefore, last November the Commission suggested to integrate the Schengen Code with the main international norms applicable in the field of marine search and rescue and the disembarking of individuals in safe harbours in order to guarantee fair and equal treatment at the European level and clear signing rules especially when surveillance operations take place under the coordination of the Frontex Agency.

Initially, the proposal did not obtain the support of national experts; however it may go through after the abstention of Italy and Malta.

If the Council adopts it, it will then be up to the European Parliament to intervene. In this case the legislative assembly will have time up to the 7 April to raise its objections concerning the procedure followed by the European Commission to integrate these provisions within the Schengen Code.

The European Commission defined these provisions as purely implementing measures (which seems a rather brave interpretation given the nature of their content), allowing therefore for their quicker adoption than if they were considered as measures having a fundamental impact in the Code. Within a few weeks it will be possible to know what will be the outcome of this, nonetheless, good initiative of the Commission.
EDC.

(*)From the SCHENGEN CODE
Article 12

Border surveillance

1. The main purpose of border surveillance shall be to prevent unauthorised border crossings, to counter cross-border criminality and to take measures against persons who have crossed the border illegally.

2. The border guards shall use stationary or mobile units to carry out border surveillance. That surveillance shall be carried out in such a way as to prevent and discourage persons from circumventing the checks at border crossing points.

3. Surveillance between border crossing points shall be carried out by border guards whose numbers and methods shall be adapted to existing or foreseen risks and threats. It shall involve frequent and sudden changes to surveillance periods, so that unauthorised border crossings are always at risk of being detected.

4. Surveillance shall be carried out by stationary or mobile units which perform their duties by patrolling or stationing themselves at places known or perceived to be sensitive, the aim of such surveillance being to apprehend individuals crossing the border illegally. Surveillance may also be carried out by technical means, including electronic means.

5. Additional rules governing surveillance may be adopted in accordance with the procedure referred to in Article 33(2). (Paragraph modified by the (CE) Regulation N. 296/2008 of the European Parliament and the Council of 11 March  2008)

Article 13

Refusal of entry

1. A third-country national who does not fulfil all the entry conditions laid down in Article 5(1) and does not belong to the categories of persons referred to in Article 5(4) shall be refused entry to the territories of the Member States. This shall be without prejudice to the application of special provisions concerning the right of asylum and to international protection or the issue of long-stay visas.

2. Entry may only be refused by a substantiated decision stating the precise reasons for the refusal. The decision shall be taken by an authority empowered by national law. It shall take effect immediately.

The substantiated decision stating the precise reasons for the refusal shall be given by means of a standard form, as set out in Annex V, Part B, filled in by the authority empowered by national law to refuse entry. The completed standard form shall be handed to the third-country national concerned, who shall acknowledge receipt of the decision to refuse entry by means of that form.

3. Persons refused entry shall have the right to appeal. Appeals shall be conducted in accordance with national law. A written indication of contact points able to provide information on representatives competent to act on behalf of the third-country national in accordance with national law shall also be given to the third-country national.

Lodging such an appeal shall not have suspensive effect on a decision to refuse entry.

Without prejudice to any compensation granted in accordance with national law, the third-country national concerned shall, where the appeal concludes that the decision to refuse entry was ill-founded, be entitled to correction of the cancelled entry stamp, and any other cancellations or additions which have been made, by the Member State which refused entry.

4. The border guards shall ensure that a third-country national refused entry does not enter the territory of the Member State concerned.

5. Member States shall collect statistics on the number of persons refused entry, the grounds for refusal, the nationality of the persons refused and the type of border (land, air or sea) at which they were refused entry. Member States shall transmit those statistics once a year to the Commission. The Commission shall publish every two years a compilation of the statistics provided by the Member States.

6. Detailed rules governing refusal of entry are given in Part A of Annex V.

Twelve European countries call for a “European Protection Order” combating violence against women

This week the Civil Liberties, Justice and Home Affairs Committee of the European Parliament will examine an interesting initiative for a Directive presented by twelve Members of the European Union (the Kingdom of Belgium, the Republic of Bulgaria, the Kingdom of Spain, the Republic of Estonia, the French Republic, the Italian Republic, the Republic of Hungary, the Republic of Poland, the Portuguese Republic, Romania, the Republic of Finland and the Kingdom of Sweden under the Spanish Presidency in accordance to the Stockholm Programme) within the framework of judicial cooperation in criminal matters.

The initiative concerns a proposal for a “European Protection Order” to ensure that the protection provided especially to women victims of violence in one Member State is maintained and continued in any other Member State to which the person moves or has moved.

The Initiative is accompanied by an explanatory memorandum allowing to appraise compliance with the principles of subsidiarity and proportionality, in accordance with Article 5 of Protocol (No 2) to the Lisbon Treaty together with a questionnaire drawn up by the Spanish Presidency on the current legislative framework in the Member States.

 According to the proposal for a directive, the victim under threat should, as far as possible, enjoy the same level of protection throughout EU territory as in the State which adopted the original protection measure. The Member State to which the victim under threat moves should provide an “immediate response” in the form of a “European protection order” imposing to the “Person causing danger” one or more of the following obligations or prohibitions:

(a) an obligation not to enter certain localities, places or defined areas where the protected person resides or that he visits;

(b) an obligation to remain in a specified place, where applicable during specified times;

(c) an obligation containing limitations on leaving the territory of the issuing State;

(d) an obligation to avoid contact with the protected person; or

(e) a prohibition on approaching the protected person closer than a prescribed distance.

Naturally, this initiative “shall not have the effect of modifying the obligation to respect fundamental rights and fundamental legal principles” as enshrined in Article 6 (article 3) of the TEU.

The European protection order is issued by a judicial authority or another competent authority only at the request of the protected person, after verifying that the protection measure meets all the requirements of the national legislation of the issuing or the requesting State.

It shall also include a summary of the facts and circumstances which have led to the imposition of the protection measure in the issuing State (if necessary with an explicit indication of a ruling on the basis of article 2 of the framework decision 2008/947/GAI or a decision concerning preventive measures on the basis of article o 4 of the framework decision 2009/829/GAI) as well as the obligations or prohibitions imposed in the protection measure underlying the European protection order on the person causing danger.

Furthermore, the length of these obligations and restrictions and the express indication that their infringement constitutes a criminal offence under the law of the issuing State or may otherwise be punishable by a deprivation of liberty should be indicated.

The proposal for a directive recognises the right by the competent authority of the executing State to refuse to recognise a European protection order in the following circumstances:

(a) the European protection order is not complete or has not been completed within the time-limit set by the competent authority of the executing State;

(b) the requirements set out in Article 2(2) have not been met;

(c) the protection derives from the execution of a penalty or measure that is covered by amnesty according to the law of the executing State and relates to an act which falls within its competence according to that law;

(d) there is immunity conferred under the law of the executing State on the person causing danger, which makes it impossible to adopt the protection measures.

The scrutiny of this initiative  appears as a priority of the Spanish Presidency which, therefore, will try to obtain the European Parliament’s support in view of a swift adoption in first reading (as it happened in other cases).

If this will occur, the qualified majority in the Council will be sufficient to adopt the initiative together with the simple majority in the European Parliament.

In addition, national parliaments will be entitled to intervene to signal their opposition if they believe that the proposal does not respect the principle of subsidiarity.

Last but not least, also the European Commission will be able to express its opinion during the legislative process. However, it will not be able to tide the Council’s position as when it does when it concerns its own initiative (indeed, in these circumstances the Council may approve a proposal different from the Commission’s one only by unanimity in order to protect the right of initiative of the institution defined as the “guardian of the Treaties”).

EDC

Is the respect of minimum standard in criminal procedures utopia?

 The adoption of EU legislation on procedural rights in criminal procedures is at stake since a long time and despite a number of calls from the European Parliament, no legislative instrument is yet in place.

As a consequence, suspects and defendants have no other protection than the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) (all EU Member States are parties to the ECHR) and, after the entry into force of the Treaty of Lisbon, the Charter of fundamental Rights of the European Union.

Works in view of the adoption of a legal instrument in this field started in 2003 with the publication, by the European Commission, of a Green Paper.

Due to the positive feedback received, in 2004 the European Commission tabled a proposal for a framework decision to set common minimum standards for procedural safeguards (COM(2004)0328).

In 2007, after having largely watered down the Commission’s proposal without reaching any result, the Council took note of the impossibility of reaching a consensus on it. Hence, a number of Member States called to limit the application of such an instrument to cross-boarder cases or to cases in which an European Arrest Warrant (EAW) was issued.

In July 2009 the European Commission tabled a new proposal for a framework decision (COM(2009)338) on procedural rights. The proposal was extremely limited in scope covering only the rights to interpretation and translation of all “essential” documents. T

he Swedish Presidency therefore proposed the framework decision to be accompanied by a Council Resolution providing for further measures on training for interpreters and translators, accreditation/certification of interpreters and translators as well as their mandatory registration.

The Swedish Presidency presented also a draft Council Resolution on a “Roadmap” for strengthening procedural rights of suspected and accused persons in criminal proceedings.

The roadmap was adopted at the Justice and Home Affairs Council held on 23 October 2009 and a reference to it is contained in the Stockholm Programme. It covers the following measures:

A: Translation and interpretation

B: Information on rights and information about the charges

C: Legal advice and legal aid

D: Communication with relatives, employers and consular authorities

E: Special safeguards for vulnerable suspected or accused persons

F: A Green Paper on pre-trial detention .

In December 2009 the Treaty of Lisbon entered into force and all pending legislative procedures, including this one, could not come to their end.

Following to the impossibility to adopt the Framework Decision, a group of 13 Member States (BE, DE, ES, EE, FR, HU, IT, LU, AT, PT, RO, FI and SE) tabled an Initiative for the adoption of a Directive on the rights to interpretation and translation in criminal proceedings under the new legal framework provided by the Treaty of Lisbon.

The Initiative is based on the text agreed at Council level in October 2009 and will be negotiated, under the ordinary legislative procedure, under Spanish Presidency.

Will this time the EU manage to provide itself with a legal instrument ensuring to suspects and defendants minimum procedural rights in criminal proceedings?

C.G.

The EU-USA Provisional Agreement on Interbank Financial data access (SWIFT) under European Parliament scrutiny

In the next few weeks the European Parliament will receive  several international agreements in the field of police and judicial cooperation negotiated or signed -albeit not yet ratified by the European Council- before the entry into force of the Lisbon Treaty. 

Among these, special attentions deserve the two agreements signed with the United States concerning access to personal data to fight against terrorism.

The first one concerns personal data managed by airline companies when they conclude a transport contract which has as a destination or point of transition the United States (EU-USA Agreement on access to Passenger Name Record- PNR).

The second one, recently published in the Official Journal, concerns the access to personal and financial data exchanged via interbanking messages and processed worldwide, in almost their totality, by a specific society called SWIFT .

Their access is regulated by the Terrorist Finance Tracking Program (TFTP) on the basis of which the USA Treasury Department may request via an administrative mandate (“subpoena”) to access personal and financial data to prevent and fight terrorism.

The advantage of interbanking messages relies on their fast and easy accessibility compared to financial information, whose access is regulated by the prevention programmes for combating Money Laundering and Terrorist Financing. In fact, on the basis of these measures applied worldwide, it is a bank’s responsibility to signal suspicious transactions to the National Financial Intelligence Unit (FIU) which in turn transmits the information to the FIU of the countries involved in terrorist investigations.[1]  

On the contrary TFTP access is direct, avoiding delays, risks of incomprehension and non-cooperative banks around the globe.

Even if available data are limited (such as clients generalities and amounts of transferred money) they become  essential once they are cross-checked with information coming from other sources related to judicial, police and intelligence investigations.

This is obviously an extraordinary instrument also for the USA. This authorisation is based on exceptional powers granted to the President of the United States on a temporary basis by the  Emergency Economic Powers Act (50 USC, sections 1701-1706). The President immediately used them after the 9/11 attacks and since then the Congress has renewed its authorisation every year.[2]

The TFTP programme remained secret up to 2006 when the USA press[3] published a series of articles and the Society SWIFT released a few statements after obtaining more restrictive measures to the access of data by the USA Treasury Department. 

This took place despite the fact that the TFTP is exceptionally not covered by the Privacy ACT of the United States and neither by the general norms laid down to protect privacy in financial transitions.

The debate triggered at the European Union level resulted in a series of hearings and resolutions of the European Parliament[4], it  set off an investigation of the CE Commission, an opinion of the data protection national authorities Working Group and an investigation carried out by the Belgian authorities ,who are the one responsible for the control of the activities carried onby the company  SWIFT.

The conclusions of these discussions pointed out that the management of these data – although illegal in the EU territory-  is legal in the USA territory on condition that:

-the company SWIFT adheres to the voluntary programme “SAFE HARBOR” to protect its clients[5] and

– American authorities respect a series of self-imposed limitations to limits data access; Furthermore,  the constant presence of SWIFT employees when data are collected should be granted and a periodical review by an independent authority  nominated in a concerted way by the USA and the EU takes place.

This complex jurisdictional construction was – and still is-  based on the principle that these data are in the USA territory and therefore under jurisdiction of the American authorities.

However, things chaged when the company SWIFT restructured the systems architecture of the financial messaging network in 2007 and its global data centres.  Becasue of this, SWIFT decided that the data coming from interbanking transactions outside the USA territory were all relocated exclusively within the European territory no longer allowing a mirror copy of these data in the American servers.

Based on the argument that retained data are crucial to the fight against terrorism, American authorities asked to keep on accessing these data also once they would have been relocated to the EU territory (and under EU legislation), with the guarantee that in case of a terrorist threat these data would have been transmitted back to the EU.

This ofer was mainly made on the basis that the majority of the European states are not equipped to use and process the data gathered in the TFTP. Therefore, in this way not only the United States but also the European Union would have benefit from the programme. 

On the basis of this reasoning, negotiations started before summer 2009 and have been carefully followed by the European Parliament which in its resolution in September 2009 listed the minimum conditions to be applied to make sure that the use of data of TFTP is compatible with European standards. These indications refer to data protection as well as judicial protection standards, given that these are information that can be used for counter terrorism activities.

Against this background two agreements have been put forward:  a first transitional agreement of the limited duration of 9 months and a second longer one whose negotiations should start in the next few weeks.

The “transitional” text of the first agreement has now been published in the Official Journal and will enter into force on 1st February 2010;  it recalls some of the concerns of the European Parliament, not last the one concerning the need to anchor the implementation of this agreement to that on judicial cooperation in criminal matters between the EU and the USA concluded in Washington on 28 October 2009.[6]

It is too early to predict what the European parliament will do. One should not give for granted the outcome of the parliamentary scrutiny and its final vote since the Treaty of Lisbon (Article 16 TFEU) and the now binding Charter of Fundamental Rights[7] have introduced even stricter standard in terms of data protection.

EDC


[1] See GAFI recommendations such as the VII financial provision to gather data concerning transfer above 1.000 $ in Europe (3.000 $ in the USA) and to make them available to the authorities; see also Communitarian Directives on money laundering and Communitarian Regulations in this field (such as  Regulation (CE) No 1781/2006 of the European Parliament and the Council of 15 November 2006 on information on the payer accompanying transfers of funds)  

[2] CRF Presidential Executive Order 13224 issued by the President George Bush on 23 September 2001.

[3] See Wikipedia reconstruction: http://en.wikipedia.org/wiki/Terrorist_Finance_Tracking_Program

[4] See resolution of 6 July 2006 on the interception of bank transfer data from the SWIFT system by the US secret services (OJ C 303 E, 13.12.2006, p. 843) and Resolution of 14 February 2007 on SWIFT, the PNR agreement and the transatlantic dialogue on these issues (OJ C 287 E, 29.11.2007, p. 349).

[5] The Commission CE assessed that Safe Harbor guaranteed a sufficient level of data protection back in 2001.

[6] Processing of EU originating Personal Data by United States Treasury Department for Counter Terrorism Purposes – “SWIFT” (OJ C 166, 20.7.2007, p. 18).

[7] See also the European Convention on Human Rights, in particular Articles 5, 6, 7 and 8 thereof, the Charter of Fundamental Rights, in particular Articles 7, 8, 47, 48 and 49 thereof, Council of Europe Convention No 108 for the Protection of Individuals with regard to Automatic Processing of Personal Data, Directive 95/46/EC and Regulation (EC) No 45/2001.

The approval of Protocol 14 opens the way to the EU adhesion to the European Convention on Human Rights

Russian lawmakers voted on Friday to ratify a key protocol on reforming the European Court of Human Rights, clearing the way for the long-delayed reform after years of resistance from Moscow.

The lower house of Russia’s parliament, the Duma, ratified on Friday 15 January 2010 the Protocol 14 of the European Convention of Human Rights with an overwhelming majority of 392 votes in favour and 56 opposed. Russia was the last member of the 47-nation Council of Europe to have ratified it.

Russia was pushed to reverse its previous rejection of the protocol in 2006 because the Council of Europe agreed to a provision stating that a Russian judge would participate in any decisions concerning Russia (more than 30.000 out of the 12.000 pending cases) and because the remaining 46 members decided in May 2009 to carry on the reforms also without Russia with the so-called Protocol 14bis.

Reforms under Protocol 14 were necessary to streamline the European Court of Human Right’s work, reduce its backlog and increase the effectiveness of the European Convention on Human Rights control system. Indeed over the past years the Court increased its caseload from 404 cases in 1981 to 34.546 cases in 2002!

Protocol 14 complements a first crucial reform  entered into force in 1998 which brought about the current single, full-title and compulsory jurisdiction of the Court and recognition of the right of individual petition, abolishing the crucial role played by the Committee of the Ministers up to that moment.

However, this reform proved inadequate to cope with the new situation and in 2000 new works started aimed at further streamlining and speeding up the procedures to cope with the influx of applications generated by the constant increase in the number of states part of the Council (which in 2004 already counted 800 million citizens) and, more importantly, due to the increased awareness of European citizens to the protection of human rights.

It can be argued that the European Court of Justice is a victim of its own success. indeed, it is often considered the last resort especially by those individuals that consider their judicial systems inadequate (Russia is one of these countries given that some 30.000 cases out of the 120.000 cases awaiting review by the court originated from it). This also true for those cases where conditions to appeal do not apply (more than 90% of the appeals is eventually inadmissible).

The considerable amount of complaints brought before the Court leads to long lasting procedures which seriously endanger the credibility of the Court, especially when it is called to rule on …the reasonable duration of processes in the states parts of the Convention.

As the Explanatory Report clarifies all these shortcomings will be reduced. The Court will have the procedural means and flexibility it needs to process all applications in a timely fashion, while allowing it to concentrate on the most important cases which require in-depth examination by making a single judge competent to declare inadmissible or strike out an individual application. Furthermore, the college composed of 3 judges  will decide on the admissibility of a case as well as on its content when the case has been object of a consolidate jurisprudence.  

The fact that the Protocol opens the opportunity to the Committee of Ministers to decide by a two-thirds majority to bring proceedings before the Grand Chamber of the Court against any State which refuses to comply with the Court’s final judgment is politically relevant.

As it is relevant, last but not least, that article 17 by amending article 59 of the Convention allows the  adhesion to the Convention by the EU.

This represents an important political signal although it is clear that the Protocol does not take into account the EU’s opinion since at the time of the negotiations the EU it did not have the juridical authority to sit at the negotiating table. 

Despite this, what is important is that now the adhesion to the Convention is not only possible but also compulsory. It is established in article 6(2) of the TEU and protocol 8 of the consolidated version of the new Treaties, following the entry into force of the Lisbon Treaty on 1st December. This will include Protocol 14 and the other protocols already ratified by all EU Member States (1 and 6). 

However, few questions still remain open such as the future of the protocols not ratified by all Member States dealing with domains falling under the EU competences (Protocols 4, 7, 12 and 13). 

In conclusion, a new phase for the construction of a Europe of rights has now started. Despite a foreseeable long path ahead (unanimity and ratification by all the Members of the EU is compulsory), the Spanish Presidency’s determination to define a mandate to finally kick off the formal negotiations is a good omen. 

As usual, the European Parliament will make its voice heard, given that its consensus is required.   

EDC

Will Haiti tragedy boost the development of the European Union’s instruments in the field of civil protection?

In an article published in Le Soir on 16 January Guy Verhofstadt, former Belgian Prime Minster and current President of the Liberal Group of the European Parliament criticizes the weak role of the European Union and the standing leading role played by the Member States which demonstrate the absence of a real European approach.

Nevertheless, Verhofstdat observes that a coordinated action would make the difference and would multiply aid’s impact, especially in the event of crisis. Furthermore, such a coordination would be the only compatible answer with the new institutional and legal framework introduced with the entry into force of the Lisbon Treaty.

Indeed, the Treaty finally clarifies areas kept deliberately blurred for a very long time.

In the Lisbon Treaty the notion of solidarity between Member States and with third countries appears for the first time. Namely, article 3 of the TEU and, more importantly, Article 21 of the TUE on the basis of which:

1. The Union’s action on the international scene shall be guided by the principles which have inspired its own creation, development and enlargement, and which it seeks to advance in the wider world: democracy, the rule of law, the universality and indivisibility of human rights and fundamental freedoms, respect for human dignity, the principles of equality and solidarity, and respect for the principles of the United Nations Charter and international law.

The Union shall seek to develop relations and build partnerships with third countries, and international, regional or global organisations which share the principles referred to in the first subparagraph. It shall promote multilateral solutions to common problems, in particular in the framework of the United Nations.

2. The Union shall define and pursue common policies and actions, and shall work for a high degree of cooperation in all fields of international relations, in order to:

(a) safeguard its values, fundamental interests, security, independence and integrity;

(b) consolidate and support democracy, the rule of law, human rights and the principles of international law;

(c) preserve peace, prevent conflicts and strengthen international security, in accordance with the purposes and principles of the United Nations Charter, with the principles of the Helsinki Final Act and with the aims of the Charter of Paris, including those relating to external borders;

(d) foster the sustainable economic, social and environmental development of developing countries, with the primary aim of eradicating poverty;

(e) encourage the integration of all countries into the world economy, including through the progressive abolition of restrictions on international trade;

(f) help develop international measures to preserve and improve the quality of the environment and the sustainable management of global natural resources, in order to ensure sustainable development;

(g) assist populations, countries and regions confronting natural or man-made disasters (…)

Although several types of solidarity exist, going from humanitarian aid to civil protection, before the entry into force of the Treaty of Lisbon these interventions had an unclear legal basis. On the one hand, despite the fact that humanitarian aid refers to any country in the world, it was limited to cooperation with developing countries (ex art 179 TEC now 209 TFEU). On the other hand, civil protection interventions were foreseen only within the European Union territory, raising several concerns in relation to which kind of interventions the EU could have carried on to tackle emergencies, such as that of  Tsunami in 2004.

This uncertainty has now been overcome. Indeed, article 196 of the TFEU foresees the possibility for the European Union to

“(…)promote swift, effective operational cooperation within the Union between national civil-protection services (…)”.

In addition, the new Treaty validates the possibility to deploy civil protection mechanisms also in case of natural as well as human disasters, such as terrorist attacks. As a result, the use of police forces, highly developed technologies and military forces not only becomes desirable but also compulsory.

Verofstadt correctly reminds that some Member States blocked in the past the possibility to create a flying squad unite (EU-FAST) precisely to avoid the use of military technology both for logistic and operational activities (as in the aftermath of the Tsunami and Haiti’s earthquake  where hospital ships and aircraft carriers have been used).

However, with the Treaty of Lisbon  civil and military support becomes part of the civil protection as foreseen by the Stockholm Programme (*) as well as an essential element for the implementation of the solidarity clause foreseen in article 222 of the TFEU (which  alligns the cooperation between the Member States’ and the Institutions with the clause foreseen in article 5 of the Nato Treaty).

On the basis of what has been just said, it should not come as a surprise if  in 2008 with the signing of the Treaty and before its entry into force, the EU Institutions and the Member States adopted a long joint statement defining their  roles in case of intervention in third countries and foreseeing the use of military forces.

To sum up, it is now possible and necessary to update the current European Union’s Civil Protection Mechanism and the  Monitoring Information Center  on the basis of the new Treaty by giving the possibility to deploy military means for civil purposes and re-launch the debate on the currently blocked proposal to create a sort of coordinating mechanism to tackle emergency situations for critical infrastructures (energy networks, transports, healthcare…).

This is a crucial challenge for the High Representative and the Institutions which can now decide by qualified majority and in codecision with the European Parliament.

Although it seems that Member States are opened to such an option (at least on the basis of a recent report dated November 2009 on EU capacity to prevent and respond to disasters), it should be reminded that several Member States do not support developments in this field. Indeed,  no debate has been carried on in relation to the creation of a real European consular and diplomatic protection for European citizens in third countries which has already examined in this blog.

Hence, although hopes should be kept low  it is now evident that a swift decision in this domain has become a necessity.

EDC

(*)4.6   Comprehensive and effective EU Disaster Management: reinforcing the EU’s capacities to prevent, prepare for and respond to all kinds of disasters

Natural and man-made disasters such as forest fires, earthquakes, floods and storms, as well as terrorist attacks, increasingly affect the safety and security of citizens and call for the further development of EU action in disaster management.

EU disaster management should be based on an integrated approach, covering the whole disaster cycle encompassing prevention, preparedness, response and recovery for actions both inside and outside the Union.

EU disaster management is built on two main principles: the responsibility of Member States for providing their citizens with the necessary protection in view of the existing risks and threats, and solidarity amongst the Member States to assist each other both before, during and after disasters, if catastrophes overwhelm national capacities or affect more than one Member State. The European Council considers that future EU action should be guided by the objectives of reducing vulnerability to disasters by developing a strategic approach to disaster prevention and by further improving preparedness and response while recognising national responsibility. Guidelines for hazard and risk- mapping methods, assessments and analyses should be developed as well as an overview of the natural and man-made risks that the EU may face in the future. Continued efforts are necessary to strengthen the Union Civil Protection Mechanism and to improve the civil protection instruments, including the availability, interoperability and use of and support for the coordination of assistance also outside the EU territory on occasions of serious emergencies involving EU citizens abroad. The Monitoring and Information Centre (MIC) should be reinforced in order to improve the coordination of Member States’ assistance, provide mapping and analytical support to the Member States for the further identification and registration of national and multinational civil protection modules and develop training and exercises in order to contribute to an efficient EU disaster response.

 

Reducing vulnerability to attacks is one of the major objectives pursued with EU action concerning the protection of EU Critical Infrastructure. The Directive on Critical Infrastructure, when implemented, should be analysed and reviewed in due course in order to consider the possible inclusion of additional policy sectors.

The CBRN (chemical, biological, radiological and nuclear) risk, and in particular the threat of terrorist groups using CBRN materials, has led to action at national and EU levels. The overall goal of the policy on CBRN security is to present a prioritised, relevant and effective European strategy to enhance the protection of EU citizens from incidents involving CBRN materials. In order to achieve this goal, the implementation of the EU CBRN Action Plan based on an all-hazards approach, including actions to prevent, detect, prepare and respond to larger incidents with high risk CBRN materials, is vital.

Increasingly research will be of importance to support all areas of disaster management. Possibilities for research within the seventh research Framework programme and within the following framework programmes need to be analysed and appropriate proposals should be made to support that goal.

Close cooperation with international organisations, in particular the United Nations, which has an overall co-ordinating role in international humanitarian response should continue to be a priority for interventions in third countries, both on the ground and in terms of preparedness (training, joint exercises). In accordance with the 2007 European Consensus on Humanitarian Aid a strong EU coordination and role will enhance the overall international humanitarian response, including concerted efforts to improve the humanitarian system, and would also reinforce the EU ambition of working closely with other humanitarian actors. The safety and security of the EU requires continuous dialogue and cooperation with third countries, and in particular neighbouring countries and countries with a Member State perspective. The Union’s increasing initiatives for strengthening regional cooperation, e.g. for the Mediterranean, the Baltic Sea area and the Black Sea, as well as the Eastern partnership, are designed to contribute to this.

After Lisbon a reshuffle for the consular and diplomatic protection of the EU citizens ?

Will the Treaty of Lisbon, the new Stockholm Programme and the new figure of the European Union High Representative wake up the sleeping beauty of the consular and diplomatic protection of the European citizens ?

Even the Head of State and Government have recognised that “..This right, enshrined in the Treaties, is not well publicised, and more effort is needed to ensure its full application. Targeted communication campaigns could be conducted in connection with this right…” Moreover they have invited the Commission to “..consider appropriate measures establishing coordination and cooperation necessary to facilitate consular protection in accordance with Article 23 TFUE.”

As a matter of fact not many of the half billion European citizens know that since the entry into force of the Maastricht Treaty in 1994 …[e]very citizen of the Union shall, in the territory of a third country in which the Member State of which he is a national is not represented, be entitled to protection by the diplomatic or consular authorities of any Member State, on the same conditions as the nationals of that State.” (art. 23 TFUE, formerly art 20 of TEC)

It is worth recalling that under international public law, both customary and treaty law (1) , Consular and diplomatic protection should be provided by the States to their nationals.

In particular Consular protection or assistance is the provision of help and immediate assistance by a State to its nationals, both individuals and bodies, or to nationals of another State (2) when in distress. The most frequent situations are the relief and repatriation of distressed citizens of the Union, the assistance of victims of serious accident or serious illness, or of violent crime or the assistance to people arrested and detained or even the repatriation of the bodies in cases of death or catastrophes such the tragic Haiti earthquake. In these case, the State supports, by career or honorary consuls, its nationals (or non-nationals) in asserting their rights under the legal system of a foreign State, provided that the individual concerned has given his consent.

Diplomatic protection consists of the invocation by a State of the responsibility of another State for an injury caused by an internationally wrongful act of that State to a natural or legal person that is a national of the former State with a view to the implementation of such responsibility (3) . In this case, the State acts on its own behalf, to protect its rights, on an international level and through diplomatic action or other means of peaceful settlement conducted by diplomatic officials or Government representatives (4) .

It is only very recently the EU has been associated to the exercise of these functions so deeply rooted in the States sovereign functions and this it happened only during the last twenty years with the developpement of the Schengen cooperation which brought progressively together the officials of the member states administrations in activities such as the visa delivering and by implementing the same common consular instructions.

Therefore Member States remain jealously attached to these functions and even after the Lisbon Treaty they avoided a legislative role of the EU institutions by stating that “Member States shall establish the necessary rules among themselves and start the international negotiations required to secure this protection.

Even if the wording of art. 23 TFUE is adamant in conferring directly to EU citizens (5) this right (confirmed also in Article 46 of the now legally binding Charter of Fundamental Rights of the European Union) to transform it in a reality and to enforce it before a judge, Member States should have had agreed a sound and coherent legal implementing framework.
Therefore the true fact is that since the entry into force in ’94 of art. 20 TEC only few binding acts have so far been taken by the Member States (6) and art. 1 of the first ’95 general decision (which entered into force only in 2002), covers only the consular protection .
Even in this case the approach has been minimalistic as it appears from the one page Decision of ’95 (7) which looks more anxious to avoid financial assistance, and to guarantee full repayment in cases of extreme distress, than to establish a full fledged system of assistance and alleviate suffering for EU citizens.

In the last twelve years no other bindings acts have been adopted on Consular protection and only recently, after 2006, under the pressure of the European Council and of the Commission the member states have agreed on some complementary and non-binding Guidelines on consular protection of EU citizens in third countries as well as on non-binding measures to counter crisis outside the territory of the EU (such as the notion of the “Lead State Concept” according to which a member state will on voluntary basis coordinate the consular protection in a specific third country and prepare if needed evacuation plans in case of disasters or of terrorists attacks) (8).

Moreover there are not many signs that Member States have started ” … the international negotiations required to secure this protection. “ as required by art. 23 of the TFUE (former art. 20 of the EC Treaty)

It could then be considered an understatement the European Parliament declaration according to which the right to consular and diplomatic protection has remained ‘underdeveloped’(9). The Strasbourg Assembly should then be praised as it asked to the Member States and Commission to foster the current situation by improving the current :
a) – lack of legal certainty : The generic brochure published on the Council Site and the publication on the EU Citizens passports of the art.23 TFUE (former 20 TEC) are useful but, still , could not be considered sufficient for European Citizens who can challenge this situation before the national and european Courts;
b) – lack of common EU standards. For the time being Member States are obliged not to discriminate between their own nationals and citizens of the other EU countries. Given that the standards granted are different according to the countries concerned (for instance it seems that Danes authorities, due to their constitutional duties ensure a wider protection than the one the UK authorities give) also the treatment granted for the non nationals will be different from the one they can enjoy from their own country.
c) – lack of operational transparency. The situation is unsatisfactory also as far as the practical issues are concerned as there is no simple way to know which consular post of an EU Member State could be contacted in a specific third country . Even the notion of “lead state” remain very vague even between the Member States themselves (guess how could be for one of the 180 millions of EU citizens travelling abroad ..)
d) – lack of financial solidarity. The most frequent cases are the ones of people who lost everything and need financial help. Due to the absence of common system of compensation between the member States (such as the ones who exists on the territory of the EU for other purposes) the Consular Offices are very reluctant in assuming financial burdens.

Will this unsatisfactory situation be overcome ?

After the Lisbon Treaty the EU institutions even if without legislative powers will be entitled to financially and logistically support the MS actions in the framework of EU Directives to be adopted according to art. 23 of the TFUE as evoked in the Stockholm Programme.

It is more than likely that the first proposals will mainly try to overcome the weaknesses denounced by the EP resolution (clear definition of scope of the consular protection, financial compensation system between the Member States when anticipating money for another MS citizen, creation of an Internet global site which can give the links to the “Lead State” offices in each third Countries …etc etc) even if this institution will not be involved in codecision but will be only consulted…

Moreover a positive evolution could come out from the strengthened cooperation between the MS diplomatic missions with the new European Union External Action Service as defined by the Article 35 TEU (ex Article 20 TEU) which states that :
“The diplomatic and consular missions of the Member States and the Union delegations in third countries and international conferences, and their representations to international organisations, shall cooperate in ensuring that decisions defining Union positions and actions adopted pursuant to this Chapter are complied with and implemented.
They shall step up cooperation by exchanging information and carrying out joint assessments.
They shall contribute to the implementation of the right of citizens of the Union to protection in the territory of third countries as referred to in Article 20(2)(c) of the Treaty on the Functioning of the European Union and of the measures adopted pursuant to Article 23 of that Treaty.”

It is worth noting that some signals of this change of attitude and more positive approach from the MS diplomats could be taken in the latest Council report on the ways to respond to disasters in third countries.
In the same perspective it is also possbile that the European Parliament even if it would not play a direct legislative role will probably make full use of its budgetary powers to make more evident the european solidarity in these situations.
EDC

NOTES
(1) See also Vienna Convention on Diplomatic Relations of 1961, United Nations, Treaty Series, Vol. 500, p. 95. http://untreaty.un.org/ilc/texts/instruments/english/conventions/9_1_1961.pdf and Vienna Convention on Consular Relations http://untreaty.un.org/ilc/texts/instruments/english/conventions/9_2_1963.pdf
(2) Article 5 (e) and 8 Vienna Convention on Consular Relations. In particular, the latter states: ‘Upon appropriate notification to the receiving State, a consular post of the sending State may, unless the receiving State objects, exercise consular functions in the receiving State on behalf of a third State’.
(3) International Law Commission, Article 1 Draft articles on Diplomatic Protection.
(4) Provided that the requirements of diplomatic protection have been met, i.e. there has been a violation of international law for which the respondent State can be held responsible, local remedies have been exhausted and the individual concerned has the nationality of the acting State. According to Articles 46 and 45 (c) Vienna Convention on Diplomatic Relations, only temporary and at the request of a third State not represented in the receiving State or in case of breakdown in diplomatic relations between two States, a State may, with the prior consent of a receiving State, undertake the protection of the interests of the third State and of its nationals.
(5) In a consistent line of case law, the ECJ has elaborated different aspects and consequences inherent to these treaty provisions, emphasising that “citizenship of the Union is destined to be the fundamental status of nationals of the member states”. See inter alia ECJ, Case C-413/99, Baumbast [2002] ECR I-7091, para. 82; for a recent assessment see Attorney General Colomer, opinion in Cases C-11/06 and 12/06, Morgan and Bucher, 20.3.2007
(6) See: 95/553/EC: Decision of the Representatives of the Governments of the Member States meeting within the Council of 19 December 1995 regarding protection for citizens of the European Union by diplomatic and consular representations ; 96/409/CSFP: Decision of the Representatives of the Governments of the Member States, meeting within the Council of 25 June 1996 on the establishment of an emergency travel document (See the consolidated version from 1.1.2007)
(7) As example of a MS Ratification see FR: http://www.franceurope.org/pdf/adapt/decret2002701.pdf LUX: http://www.legilux.public.lu/leg/a/archives/1997/0049/a049.pdf#page=2
(8) See Council of the European Union, Guidelines on consular protection of EU citizens in third countries, Council Doc. 10109/06, 2.6.2006(a), as adopted by the General Affairs Council during its 2736th Council meeting in Luxembourg, 12.6.2006. See Council of the European Union, Reinforcing the European Union’s emergency and crisis response capacities, Council Doc. 10551/06, Brussels, 15.6.2006(b); see also M. Barnier, For a European civil protection force: Europe aid, European Commission, Brussels, May 2006
(9) European Parliament, Committee on Civil Liberties, Justice and Home Affairs, Working Document on diplomatic and consular protection for citizens of the Union in third countries, 13 June 2007, Rapporteur Ioannis Varvitsiotis http://www.europarl.europa.eu/oeil/file.jsp?id=5531372
(10) “CONSULAR ASSISTANCE : Besides further refining the Lead State Concept, two papers have been studied and adopted by the Consular Affairs working group, as part of the consular guidelines already approved by the Council: an “Internal Information Strategy”, aimed at ensuring proper training of consular staff on issues derived from obligations under the treaties; and a paper on “Consular Crisis Coordination”, aimed at strengthening cooperation during consular crises affecting several Member States. The Commission will assist in the development of a “training kit” on EU-related obligations, to be used by Member States in their national training of staff to be posted abroad. Work has also been initiated to develop the next generation of European emergency travel documents (ETDs) containing new security features. A Troika meeting has been held with the US to discuss issues of common concern and possibilities for strengthened cooperation in third countries. Training sessions for Member State’s consular staff have been organised, facilitating the exchange of information and best practise between actors in the field of consular protection.”

English legal system: First juryless trial in 350 years

In the UK, the notion of trial by jury can be traced back to 1215 when Article 39 of the Magna Carta came into force. The article states that “No freeman shall be arrested or imprisoned or deprived of his freehold or outlawed or banished or in any way ruined, nor will we take or order action against him, except by the lawful judgment of his equals and according to the law of the land”[1]

However, when the Criminal Justice Act of 2003 came into force in July 2007, it gave the possibility for trials in England and Wales to be heard without a jury for the first time in over 350 years.  

Section 44 and 46 of the Criminal Justice Act 2003 allow for the absence of a jury if firstly, there is a “real and present danger that jury tampering would take place”. Secondly, it needs to be shown that the possibility of jury tampering “would be so substantial as to make it necessary in the interests of justice for the trial to be conducted without a jury”[2]

On this basis, the Lord Chief Justice, Lord Judge, agreed to a juryless trial and is the first to use this power since the Act came into force. The trial began this week and has been widely reported in the media. 

The case concerns an armed robbery of £1.75m, allegedly carried out by four men in Heathrow in 2004.  This week is “the fourth time the case has come before the court”[3]. During the third hearing it was abandoned due to fears of jury tampering. 

The case has inevitably stirred much debate. The BBC reported that the Crown Prosecution Service state that “Rather than the case not proceeding at all this decision enables these defendants, who we allege are involved in serious criminal activity, to be tried and brought to justice.”[4] 

However a representative from the human rights group Liberty stated that it “is a dangerous precedent. The right to jury trial isn’t just a hallowed principle but a practice that ensures that one class of people don’t sit in judgement over another and the public have confidence in an open and representative justice system”[5]

It should be noted that trial without jury is known in other parts of the UK with Diplock courts taking place in Northern Ireland between 1973 and 2007 and cases in Scotland being heard by a Sheriff without a  the presence of a jury.  


[1] Magna Carta 1215, section 39. Available at: http://www.fordham.edu/halsall/source/magnacarta.html 

[2] Criminal Justice Act 2003, section 44. Available at: http://www.opsi.gov.uk/acts/acts2003/ukpga_20030044_en_1 

[3] Hughes, Mark., 2010. Focus: No angry men: first trial without jury begins. Independent Online, [internet] 13 January. Available at: http://www.independent.co.uk/news/uk/home-news/no-angry-men-first-trial-without-jury-begins-1866124.html 

[4] Anon, 2010. Focus: First trial without jury approved. BBC News Online, [internet] 18 June. Available at: http://news.bbc.co.uk/2/hi/uk_news/8106590.stm 

[5] Ibidem.

Directive on data retention: now the floor goes to the German Constitutional Court

The year 2010 opens focusing on the German Federal Court, yet again. The Court has been called upon to rule on the compatibility of the fundamental right to data protection with the Directive imposing providers of communication services to retain data generated by phone calls and other public networks communication activities for at least six months to a maximum of 2 years .
This Directive adopted in just over three months under British presidency at the end of 2005 as an essential measure to prevent and fight terrorism, had already been strongly criticised during the phase that led to its adoption.
Initially, it was presented as a measure aimed at enhancing the cooperation of police authorities as well as th cooperation between police and telecommunications providers.
This is demonstrated by the fact that in principle this measures should ahve been adopted applying the unanimity rule. However, due to the opposition of some Member States, the British presidency in concert with the European Parliament and the European Commission decided to apply the qualified majority rule.
Thereof, the directive aimed at providing a common framework for telecommunications providers as to avoid unfair treatment between those forced to retain huge amount of data for several years and those exempted from this obligation was adopted despite several objections.
The solution adopted bonded all service providers to retain traffic data from a minimum of six months to a maximum of two years, provided that internal security matters fell under the responsibility of national legislators.
Continue reading “Directive on data retention: now the floor goes to the German Constitutional Court”

Terrorism and individual freedom: after Detroit new strategies in the United States and Europe?

The speech where President Obama took full responsibility of the administration’s failure to prevent the aborted attack to the Detroit fight, confirms, if there were any doubts, the firmness and quality of the civic and political debate in the other side of the Atlantic.

By publicly recognising the administration’s liability and, more importantly, taking measures to tackle the loops the strong authority of a country that after 9/11 has made of the fight against terrorism its main priority has been confirmed.

Continue reading “Terrorism and individual freedom: after Detroit new strategies in the United States and Europe?”