TERRORISM : EDRI RECOMMENDATIONS FOR THE EP REPORT ON TERRORISM

FOR A GENERAL OVERVIEW OF THE LEGISLATIVE PREPARATORY WORKS OF THE EU DIRECTIVE ON TERRORISM SEE HERE 

EDRI Recommendations for the European Parliament’s
Draft Report on the Directive on Combating Terrorism (NDR : emphasis are added)

In the view of the Civil Liberties, Justice and Home Affairs Committee (LIBE)’s legislative work on the Directive on Combating Terrorism , European Digital Rights (EDRi) would like to make a set of recommendations regarding the provisions falling within our scope of work, i.e. the protection of human rights in the digital environment. The absence of comments on certain provisions shall not be interpreted as an endorsement.

EDRi supports the aim of achieving a united, coherent and effective response to terrorism. Notwithstanding the importance of ensuring that adequate measures are in place to fight terrorism, EDRi is concerned about the speed that this file is taking. Terrorism is a very complex issue and laws must be balanced, smart and work in times of crisis. With the view to being constructive in this process, EDRi encourages the rapporteur, shadow rapporteurs and LIBE members to consider EDRi’s recommendations outlined before, when and after proposing amendments. EDRi’s wording proposals are based on the Commission’s proposal unless expressly specified (in the latter case, to explain the changes needed to the rapporteur’s draft report).

I. Human Rights Impact assessment needed

EDRi regrets the absence of an impact assessment. This is in contradiction with the EU Better Regulation Guidelines and the European Commission’s Better Regulation tool No. 24. While parts of the text are similar to the 2008 Framework Decision, six years is a very long time to wait for a review of an issue of such importance. In addition, the Council and the Parliament rapporteur are proposing new elements without any obvious evidence base.

Civil society has not been awarded the opportunity to provide input, evidence or expertise prior to the proposal of the Directive. The justification given by the Commission was based on the urgency of the file. However, this contradicts the Member States’ proposal to transpose the Directive not in twelve months as proposed by the European Commission and the EP rapporteur, but in twenty-four months.
EDRi’s proposal:

We urge the European Parliament to ask the European Commission to conduct an Impact assessment immediately.

II. Strong and meaningful human rights safeguards

a) General clause

Contrary to the Framework Decision 2002, as amended in 2008, the Commission’s proposal for a Directive does not contain any reference to fundamental rights and freedoms in the Articles.

Recital 19 should be deleted and replaced by a new Article

We consider it problematic that Recital 19 states that the Directive respects fundamental rights, since this is not necessarily a given. A similar phrasing was also used in Recital 22 of Directive 2006/24/EC (the Data Retention Directive), which was later ruled to be in violation of the Charter of Fundamental Rights of the European Union. An adequate fundamental rights clause should emphasise the limitations on fundamental rights that will be put in place as a result of this Directive, as well as the duty of Member states to observe such rights when implementing it, so judges can interpret the law adequately.

EDRi thus recommends rephrasing Recital 19 and converting it into an Article, based on the wording used in Article 1(2) of the 2002 Framework Decision on Combating Terrorism, Article 2 of the 2008 Framework Decision on Combating Terrorism, Article 12 of the Convention on the Prevention of Terrorism of the Council of Europe and Article 8 of the Additional Protocol. In addition, the Directive should emphasise that restrictions on fundamental rights must be provided for by law, be necessary and proportionate for the aim pursued..

EDRi’s proposal (providing an alternative wording for the rapporteur’s AM 53):

Article 23a (new): Fundamental Rights and Principles
1. This Directive respects the principles recognised by Article 2 of the Treaty on the European Union, respects fundamental rights and freedoms and observes the principles recognised in particular by the Charter of Fundamental Rights of the European Union, including those set out in Chapters II, III, V and VI thereof which encompass inter alia the right to liberty and security, freedom of expression and information, freedom of association and freedom of thought conscience and religion, the general prohibition of discrimination in particular on grounds of race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, the right to respect for private and family life and the right to protection of personal data, the principle of legality and proportionality of criminal offences and penalties, covering also the requirement of precision, clarity and foreseeability in criminal law, the presumption of innocence as well as freedom of movement as set forth in Article 21(1) of the Treaty on the Functioning of the European Union and Directive 2004/38/EC. shall not have the effect of altering the obligation to respect fundamental rights and fundamental legal principles as enshrined in the Charter of Fundamental Rights of the European Union and Articles 2 and 6 of the Treaty on European Union, as well as in the European Convention for the Protection of Human Rights and Fundamental Freedoms and International humanitarian law.
2. Restrictions to fundamental rights and freedoms must be provided for by law, be necessary and proportionate for the aim pursued.
3. This Directive has to be implemented in accordance with these rights and principles the Charter of Fundamental Rights and principles of EU law.

b) Non-discrimination

The current text of the proposed Directive seems to be neutral, but taken into account the explanatory memorandum and certain provisions of the draft Directive, this legal instrument is highly likely to be discriminatory in practice. As the UN Special Rapporteur on Counter-Terrorism and Human Rights points out, “on paper most strategies to counter violent extremism are generic. In practice, however, they tend to target specific groups determined to be most ‘at risk’ of being drawn to violent extremism”.

The current proposal only provides a rather weak and narrow non-discrimination safeguard in Recital 20, which is restricted to criminal offences. EDRi encourages the European Parliament to strengthen this provision, in line with the EU Charter and the UN’s Plan of Action against Violent Extremism leading to terrorism, which calls on UN Member States to strengthen “the rule of law, repealing discriminatory legislation and implementing policies and laws that combat discrimination, marginalisation and exclusion in law and in practice”.

EDRi’s proposal (amending the Commission’s proposal):

Recital 20
The implementation of the criminalisation under this Directive should be proportional to the nature and circumstances of each case the offence, with respect to the legitimate aims pursued and to their necessity in a democratic society, and should exclude any form of arbitrariness or discrimination.

c) Freedom of expression

The draft Directive contains provisions which can have a chilling effect on freedom of expression. In the words of the European Court of Human Rights (ECtHR), freedom of expression applies to “information” or “ideas” that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb the State or any sector of the population.

The Directive must ensure that “any restrictions on freedom of expression are clearly and narrowly defined and meet the three-part test of legality, proportionality and necessity”, as the UN Plan of Action Against Violent Extremism outlines. The Directive should help prevent abusive and arbitrary practices in Member States (see our Annex). Hence, EDRi encourages policy makers to adopt an Article which includes wording based on Recital 14 and Article 2 of the Framework Decision 2008.

EDRi’s proposal:

Article 23b (new) Freedom of expression
1. Nothing in this Directive may be interpreted as being intended to reduce or restrict the dissemination of information for the expression of an opinion. The expression of radical, polemical or controversial views in the public debate on sensitive political questions, including terrorism, fall outside the scope of this Directive and, in particular, of the definition of public provocation to commit a terrorist offence.
2. This Directive shall not have the effect to take measures in contradiction of fundamental principles relating to freedom of expression, including freedom of the press and the freedom of expression resulting from constitutional traditions or rules governing the rights and responsibilities of, and the procedural guarantees for, the press or other media where these rules relate to the determination or limitation of liability.

c) Emergency situations

The Directive must work for situation of crisis or emergency, in line with Article 15 of the European Convention on Human Rights (ECHR). In this sense, the UN Plan of Action on violent extremism leading to terrorism specifies that “certain rights are non-derogable even in time of public emergency which threatens the life of the nation”. As the five UN Special Rapporteurs highlighted regarding France’s situation after the Paris Attacks, “[w]hile exceptional measures may be required under exceptional circumstances, this does not relieve the authorities from demonstrating that these are applied solely for the purposes for which they were prescribed, and are directly related to the specific objective that inspired them.”

EDRi’s proposal:

Article 23c (new) Emergency situations and fundamental rights
In time of war or other public emergency threatening the life of the nation, Member States may take measures to derogate certain rights, in line with EU and International law. Such circumstances do not relieve the authorities from demonstrating that the measures undertaken are applied solely for the purpose of combating terrorism and are directly related to the specific objective of combating terrorism.

d) Effective remedies for Human Rights violations

The UN’s Plan of Action against violent extremism leading to terrorism also asks UN Member States to ensure accountability for human rights violations “through criminal procedures adhering to due-process guarantees.” This is absent from the European Commission’s proposal. EDRi’s proposal is based on the model clause proposed in the former UN Special rapporteur’s report on best practices when countering terrorism:

EDRi’s proposal:

Article 23d (new) Right to effective remedies
1. Any person whose fundamental rights and freedoms have been violated in the exercise of counter-terrorism powers or the application of counter-terrorism law has a right to a speedy, effective and enforceable remedy.
2. Member States’ judicial authorities shall have the ultimate responsibility to ensure that this right is effective.

e) Human rights safeguards for specific offences

All provisions need to be read in compliance with fundamental rights and freedoms. In addition, when referring to a concept that does not have a harmonised definition, EU institutions should provide a definition in Article 2, in order to comply with the principle of legality so that, as the UN Special Rapporteur on Human Rights and combating terrorism stated, “criminal liability is narrowly and clearly defined.”

III. Terrorist offences

• Article 2: definitions

The draft Directive contains many legal concepts which can mean different things. The Directive needs to comply with the principle of legality.

EDRi’s proposal:

Should the Directive contain legal terms which are not defined in the other provisions, Article 2 should be amended to add the appropriate definitions. For specific examples, please see our recommendations per provision in this document.

• Recital 5 and Article 3: terrorist offences

Article 3 defines the concept of ‘terrorist offences’. Recital 5 says that the Member States’ definition of terrorist offences should cover forms of behaviourpunishable also if committed through the Internet, including social media”. However, Articles 3(1)(b) and 3(2)(i) are not clear about what this means in practice.

• Recital 5

It is not clear why a reference to the Internet is needed. Criminal offences should be technology-neutral insofar as possible.

EDRi’s proposal:

Recital 5
Taking into account of the evolution of terrorist threats and legal obligations to the Union and Member States under international law, the definition of terrorist offences, including offences related to a terrorist group and offences related to terrorist activities, should be further approximated in all Member States, so that it covers more comprehensively conduct relate to in particular foreign terrorist fighters and terrorist financing. These forms of behaviour should be punishable also if committed through the Internet, including social media.

◦ Article 3(1)(b) on ‘unduly compelling a Government or international organisation ‘

Pursuant to Article 3(1)(b), an offence may qualify as a terrorist offence when it is committed with the aim of ‘(b) unduly compelling a Government or international organisation to perform or abstain from performing any act’. Notwithstanding its use in existing legislation, the use of the word ‘unduly‘ in this context is problematic, since it lacks a clear definition or legal import. An improved phrasing might refer to ‘using violence or the threat of violence to compel’, as we do not see how any non-violent attempt at influencing governmental policy could qualify as terrorism. Without such a modification, this provision risks affecting legitimate forms of protest and civil disobedience under the concept of terrorism. For instance, as the UN Human Rights Committee states and the UN Special Rapporteur on Human Rights and Countering Terrorism endorses, “no site or information dissemination system should be prohibited from publishing material solely on the basis that it may be critical of the government or the social system espoused by the government”.

EDRi’s proposal:

Article 3
1. (…)
(b) using violence or the threat of violence to compel or seek to compel unduly compelling a Government or international organisation to perform or abstain from performing any act.

◦ Article 3(2)(i)

Article 3(2) defines what ‘intentional acts’ means. EDRi considers Article 3(2)(i)’s wording is too broad and could lead to arbitrary and discriminatory abuses. EDRi suggests to bring it into line with Recital 13.

EDRi’s proposal:

Article 3
2. (…)
(i) seriously threatening to commit any of the acts listed in points (a) to (h), on the basis of objective, factual circumstances.

• Article 15: relationship to terrorist offences

If the amendments we suggest are adopted, the proposed text from the Commission appears unproblematic.

• Article 16: aiding or abetting, inciting and attempting

Article 16 is intended to prohibit ancillary offences related to terrorist offences, namely aiding, abetting, inciting and attempting. We see a significant overlap with the provisions under Title III (Offences related to Terrorist Activities), since these are also aimed at prohibiting (specific forms of) assistance for terrorist offences. It would appear that many of these offences related to terrorist activities could also be treated under the more general principles referenced in Article 16. Conversely, many related offences currently covered by Article 16 have already found more specific treatment in Title III. This confusion generated by this dual approach is best illustrated by the fact that aiding of terrorism (e.g. through financing or providing training) itself becomes a specific offence.

As a result of this extension, the Directive’s scope touches on activities with little to no direct relationship to actual terrorist acts. In the interest of legal certainty and good lawmaking, we would encourage a closer specification of the interaction between Article 16 and Title III of the Directive, with the aim of reducing overlap between these rules. In addition, Article 16(2) is redundant as Article 5 is the provision dealing with incitement to terrorism.

Therefore, EDRi proposes to delete it. In case MEPs disagree with its deletion, EDRi proposes the following alternative:

EDRi’s proposal:

Article 16
1. Each Member State shall take the necessary measures to ensure that aiding or abetting an offence referred to in Articles 3 to 8 and 11 to 14 is made punishable.
2. Each Member State shall take the necessary measures to ensure that inciting an offence referred to in Articles 3 to 14 is made punishable.
3. Each Member State shall take the necessary measures to ensure that attempting to commit an offence referred to in Articles 3, 6, 7, 9 and 11 to 14, with the exception of possession as provided for in point (f) of Article 3(2) and the offence referred to in point (i) of Article 3(2), is made punishable.

IV. Cooperation among Member States, their authorities and EU

• Information sharing about convicted individuals or suspects

EDRi agrees with the EP rapporteur’s intention in AM 17, but suggests improvements in order to comply with the principle of presumption of innocence.

EDRi’s proposal:

Recital 15c (amending the rapporteur’s proposal)*
In order to prevent and combat terrorism, a closer cross-border cooperation among the competent national and European authorities is needed with regard to expedient exchange of any relevant information from criminal records or other available sources on radicalised individuals, and in particular on individuals who are or have been subject to criminal proceedings, are suspects of a criminal offence or asset freezing. This provision is without prejudice to the [official name of police data protection Directive].

* Comments: Parts in bold and strike-through reflect the changes introduced vis-à-vis AM 17.

• ‘Electronic evidence’

Whereas the Commission remains silent on this issue, LIBE’s Draft report contains two proposals on (undefined) ‘electronic evidence’.

Regarding AM 19 and AM 20 of the Rapporteur’s Draft Report (recitals 15e and 15f), EP’s rapporteur mentions “the issues related to electronic evidence”, but does not explain what issues she is referring to or the analysis available that demonstrate the existence of a real issue. Should policy-makers wish to include a provision on ‘electronic evidence’:

• they should first define what ‘electronic evidence’ means (Article 2);

• be future-proof, being compatible with the development of technology and innovation; and

• merge both (new) recitals.

EDRi’s proposals:

Recital 15e (new) amending the rapporteur’s proposal)*
Considering that terrorist organisations rely heavily upon various electronic tools, the internet and social media to communicate, promote, and incite terrorist acts, to recruit potential fighters, to collect funds, or to arrange for other support for their activities, the issues related to electronic evidence create challenges in investigations and prosecutions of terrorist offences. Member States should therefore cooperate among each other, notably through Eurojust, to ensure a coordinated approach for the development of any necessary, proportionate and effective measures that may prove efficient in dealing with the gathering, sharing, and admissibility of electronic evidence, in compliance with [official name of police data protection directive].

*Comments: Parts in bold and strike-through reflect the changes introduced vis-à-vis AM 19.

Recital 15f(new) amending the rapporteur’s proposal)*

A Eurojust report of November 2014 notes that the growing sophistication and wider use of anonymisers, proxy servers, the Tor network, satellite links and foreign 3G networks create additional challenges to the gathering and analysis of electronic evidence, which are rendered even greater by the storage of data in the cloud. Member States should therefore cooperate among each other, in particular through Eurojust, to identify and remove possible obstacles that may occur in mutual legal assistance requests for electronic evidence.

*Comments: Parts in bold and strike-through reflect the changes introduced vis-à-vis AM 20.

• Professionalism of authorities and Human Rights training

Member State authorities vested of powers to combat terrorism must have received relevant training, including training on human rights; be accountable; and be subject to judicial oversight. EDRi’s proposal is based on wording used in para. 50 of the Recommendation of the UN Secretary-General of 24 December 2015.

EDRi’s proposal:

Recital 4c (new)
Member States should strengthen the professionalism of security forces, law enforcement agencies and justice institutions; and ensure effective oversight and accountability of such bodies, in conformity with international human rights law and the rule of law. This includes human rights training to security forces including on how to respect human rights within the context of measures taken to counter violent extremism and terrorism.

IV. Internet related provisions

In general

The Commission’s Draft Directive, or indeed all the texts on the table at the moment, refer to the Internet as being negative for society. There is no mention (not even in a recital) of the essential role of the Internet in promoting and protecting Human Rights and Fundamental Freedoms within the Union and in Third Countries. EDRi thus advises the European Parliament not to harm the progress the EU has made in the protection of Human Rights online within and outside our borders.

EDRi’s proposal:

Recital X (new)
The Internet plays an essential role in promoting values of peace, tolerance and solidarity as well as promoting and protecting Human Rights and Fundamental Freedoms within and outside the European Union.

• (new) Recital 4a – Internet Referral Units

EDRi is concerned with AM 3 of the rapporteur’s draft Report and appears unsuited to this Directive: the first part (up to “jurisdictional conflicts”) does not have any obvious link with the last part of the recital. Similarly, the second half of the recital lacks clarity; it does not specify what ‘flagging’ (notifying?) of content entails, to whom it must be ‘flagged’, by whom that content would have to be removed, and under what procedure this might take place. This Directive is aimed at criminalisation of terrorism offences rather than creating a framework of law enforcement measures. The Directive’s operative part does not contain any reference to these ‘special units’ or their activities. This recital therefore bears little relevance to the instrument as a whole. We see this as being a political statement rather than meaningful legislation.

Therefore, EDRi proposes NOT to adopt it. In case MEPs disagree with its deletion, EDRi proposes the following alternative:

Recital 4b (alternative to AM 3, Rapporteur’s Draft Report)*
Certain forms of internet use are conducive toTerrorist radicalisation, enabling fanatics throughout the world to both online and offline involves radicalised individuals connecting with each other and recruiting vulnerable individuals without any physical contact whatsoever and in a manner that is difficult to trace. Every Member State should set up a special unit tasked with flagging identifying illegal content on the internet and with facilitating the investigation, detection and removal of such content. Member States should publish statistics on numbers of reports, investigations and prosecutions taken as a result of these activities. The creation by Europol of the Internet Referral Unit (IRU), responsible for detecting illegal content and supporting Member States in this regard, while fully respecting the fundamental rights of all parties involved, in particular with regard to predictability of the measures taken, represents a significant step forward in this regard. Member States’ units should also cooperate with the Union counter terrorism coordinator and the European Counter Terrorist Centre within Europol, as well as with civil society organisations active in this field. Member States should cooperate with each other and with the relevant Union agencies on these matters.

* Comments:
Parts in bold and strick-through reflect the changes introduced vis-à-vis AM 3 of the rapporteur’s Draft Report.

These changes create accountability and judicial responsibility and allow individuals to adapt their conduct to the law (predictability). If these units had the option to simply refer unwelcome content to internet providers, with no transparency regarding investigations, legal assessment or prosecutions, UN’s standards would not be complied with. As the former Special rapporteur on the promotion and protection of Human Rights and fundamental freedoms while countering terrorism stated in its report “Ten areas of best practices in countering terrorism”, “[w]here the law relating to terrorism confers discretionary powers upon public agencies, adequate safeguards, including judicial review, must exist for the purpose of ensuring that discretionary powers are not exercised arbitrarily or unreasonably.”

Intent as a minimum standard for all terrorist offences, with a high standard of proof

• Recital 13

EDRi welcomes the attempt made in Recital 13 to clarify the meaning of ‘intent’ as used in the Directive. Distinguishing terrorist offences under this Directive from innocent activities such as travelling or debating is done primarily on the basis of intent. It is therefore crucial that intent is not merely imputed to suspects, but that it is proven on the basis of objective, factual circumstances. The proposed AM 13 heightens the standard set in the initial proposal, and EDRi therefore welcomes it, seconding the EP’s rapporteur justification. However, EDRi suggests to remove ‘as much as possible’, since this means that the intention does not have to be based on objective, factual circumstances.

EDRi’s proposal (amending the Commission’s proposal):

Recital 13
With regard to the criminal offences provided for in this Directive, the notion of intention must apply to all the elements constituting those offences. The intentional nature of an act or omission may should be inferred from objective, factual circumstances.

Unambiguous and limited rules on incitement of terrorism

• Article 5: Public provocation to commit a terrorist offence

EDRi is concerned about the ambiguous phrasing and broad scope of Article 5 and its potential for abuse, as national anti-terrorist provocation rules have been abused in cases which appear to bear little connection to actual terrorist offences (see the Annex to this document). EDRi welcomes the intention of the EP’s rapporteur to restrict Article 5. However, at this stage, none of the versions of Article 5 regarding “glorification of terrorism” comply with UN.

The former Special Rapporteur on human rights and counter terrorism stated (and the current rapporteur has supported this approach) that “for the offence of incitement to terrorism to comply with international human rights law, it
(a) must be limited to the incitement to conduct that is truly terrorist in nature;

(b) must restrict freedom of expression no more than is necessary for the protection of national security, public order and safety or public health or morals;

(c) must be prescribed by law in precise language, and avoid vague terms such as “glorifying” or “promoting” terrorism;

(d) must include an actual (objective) risk that the act incited will be committed;

(e) should expressly refer to intent to communicate a message and intent that this message incite the commission of a terrorist act; and

(f) should preserve the application of legal defences or principles leading to the exclusion of criminal liability by referring to “unlawful” incitement to terrorism.”

In addition, none of the current versions of Article 5 would prevent Member States from criminalising indirect incitement. In 2008, the UN Secretary-General recommended UN Member States that “laws should only allow for the criminal prosecution of direct incitement to terrorism, that is, speech that directly encourages the commission of a crime, is intended to result in criminal action and is likely to result in criminal sanction.” This recommendation has been backed up by the UN Special Rapporteur on Human Rights and counter-terrorism’s report of 22 February 2016 .

EDRi’s proposal (amending the Commission’s proposal) is in line with UN standards:

Article 5*
1. Member States shall take the necessary measures to ensure that the intentional and unlawful distribution, or otherwise making available of a message to the public, with the clear intent to incite the commission of one of the offences listed in points (a) to (h) of Article 3(2), where such conduct, whether or not directly expressly advocating the commission of terrorist offences, manifestly causes a clear, substantial and imminent danger that one or more such offences may be committed, is punishable as a criminal offence when committed intentionally and unlawfully
2. Member States shall only allow for the criminal prosecution of direct incitement to terrorism, that is, speech that directly encourages the commission of a crime, is intended to result in criminal action and is likely to result in criminal sanction.

*Comments: On top of the comments above, EDRi deems it necessary to further clarify three of the changes:

• Intent. Article 5 must be read in conjunction with Recitals 13 and 14. In the words of the UN Special Rapporteur on Human Rights and Combating Terrorism, the liability should not be in the illegality of the content of the speech alone, but on the “speaker’s intention or the actual impact of the speech”. Otherwise, this would prevent unnecessary or disproportionate interferences with freedom of expression.

• “Unlawfully” was included in Article 5 of the Council of Europe’s Convention on the Prevention of Terrorism and also in the model clause recommended by the UN Special Rapporteur on Counter-Terrorism and Human Rights. As the latter states, without ‘unlawfully’, the Directive would be excluding criminal liability exemptions and legal defences against it.

“Expressly or not” instead of “directly or not” (European Convention’s language). The UN Special Rapporteur on Counter-Terrorism and Human rights proposed this modification to the European Convention on Prevention of Terrorism “to prove both a subjective intention to incite as well as an objective danger that a terrorist act will be committed”, while also including “coded language”. This recommendation is a reaction to EctHR case Leroy v France (2008) and is in line with Article 12(1) of the European Convention on Prevention of Terrorism.

Incitement to terrorism and websites’ blocking and removal

• Recital 7

Recital 7 should be deleted. As the Meijers Committee stated, “this recital leads to a disproportional infringement of freedom of expression including the freedom of the press”. “Member States may interpret this as meaning that, even if there is no real danger of future offences, offence to victims and their families is sufficient reason to criminalise expressions”. In addition, it is not clear whether with this recital Member States would be criminalising individuals sharing messages or images for ‘journalistic purposes’.

With regard to AM 6 in LIBE’s Draft Report, EDRi considers Internet access restrictions and websites’ removal fall outside the scope of the Directive, which is essentially to define criminal offences (see Article 1 of the proposed Directive). In addition, this does not harmonise Member State laws. Should MEPs want to address these issues, EDRi considers AM6’s text should be improved in line with Article 52 of the Charter of Fundamental Rights.

EDRi’s proposal (amending the rapporteur’s suggestion in AM 6):

Recital 7*
The offences related to public provocation to commit a terrorist offence act comprise, inter alia, the glorification and justification of terrorism or the dissemination of messages or images including those related to the victims of terrorism as a way to gain publicity for the terrorists cause or seriously intimidating the population, provided that such behaviour causes a danger that terrorist acts may be committed. To strengthen actions against public provocation to commit a terrorist offence on, and also taking into account the increased use of technology, in particular the Internet, it seems appropriate for Member States may to take measures to remove or to block access to webpages publicly inciting to commit terrorist offences. Where such measures are taken, they must be provided for by law, set by transparent procedures and provide adequate safeguards, in particular to ensure legal predictability and that restrictions are limited to what is necessary and proportionate. Such measures should be subject to periodic review, to assess if the stated goal(s) of the legislation are being achieved.

*Comments: these changes show the changes regarding AM 6 of the Rapporteur’s Draft Report.

• (new) Article 14a (AM 40 of LIBE’s Draft Report)

Restricted access to certain websites can be counterproductive, as websites can be replaced easily and rapidly, making it, at best” only a “temporary disruption”.

EDRi notes and welcomes that the provision on website blocking proposed by the EP’s rapporteur under AM 40 is largely similar to that in Article 25 of Directive 2011/92/EU (Directive on combating sexual exploitation of children), which contains reasonable wording dealing with this. However, the recital misses three things:

◦ First, it should emphasise that objectives need to be clear and in a way that these measures actually necessary and proportionate.

◦ Second, restrictions must be provided for by law (Article 52 of the Charter of Fundamental Rights) and subject to periodic review and judicial control. As the UN Special Rapporteur stated in its Report of 22 February 2016, “independent judicial recourse must be available. Laws that allow executive authorities to block websites, in the absence of any initial judicial control or ex-post facto judicial recourse may not comply with this requirement”.

◦ Third, websites’ removals and access restrictions (“blocking”) are two different things. Access restrictions should only be pursued when removals at source are not achieved.

EDRi’s proposal:

Article 14a (amending the rapporteur’s text)*
1. Member States shall take the necessary measures to ensure the prompt removal of webpages publicly inciting to commit a terrorist offence, as referred to in Article 5, hosted in their territory and to endeavour to obtain the removal of such pages hosted outside of their territory.
2. Where the measures described in Article 14a(1) cannot be achieved, Member States may take measures to block access to webpages publicly inciting to commit a terrorist offence towards the Internet users within their territory. These measures must be provided for by law, set by transparent procedures and provide adequate safeguards, in particular to ensure that the restriction is limited to what is demonstrably necessary and proportionate, and that users are informed of the reason for the restriction, that is subject to initial judicial control and periodic review. Those safeguards shall also include the possibility of judicial redress.

Comments: * Parts in bold and strike-through reflect the changes introduced vis-à-vis AM 40.

Rejecting or clarifying the proposed amendments on malware and ‘malicious software’

The proposed recital 11a (AM 12) and Article 14b (AM 41) by the EP’s rapporteur on her draft report on the Directive should not be adopted for three main reasons:
These proposals would not comply with the principle of legality, as ‘malware’ is not defined.
Regarding the concept ‘malware for terrorist purposes’, this appears superfluous. This AM is seeking to solve a problem whose existence is not known and never been shown. To the extent it might exist, it is already criminal under the Council of Europe’s Cybercrime Convention and Directive 2013/40/EU on attacks to Information systems, so it is unclear what added value this prohibition would bring in addition to existing European legal framework.

EDRi also has difficulties to see the value of adding ‘malicious software’ in the Directive (AM 29 and AM 30 of LIBE’s Draft Report), since these aspects are also covered in the Directive on attacks against computer system.

Accordingly, EDRi recommends not proposing any amendments neither on manufacturing or developing malware, nor on ‘malicious software’.

VI. Human rights regular review

As the UN Special Rapporteur on Counter-terrorism and Human Rights states in its report of 22 February 2016, “it is critical that States strictly monitor the human rights compliance of measures adopted to counter violent extremism [leading to terrorism], and ensure transparency in the operation of their initiatives.”

• Article 25 (transposition) and Article 26 (reporting)

Not alone the EU institutions have adopted a piece of legislation without conducting a much-needed impact assessment, but it would take at least four years for the Commission to report to the European Parliament and Member States about its assessment on the “impact and added value of this Directive on combating terrorism”. This unacceptable period of non-review could go up to five years, if the Council’s version is adopted and prolonged, particularly bearing in mind that such reports are often delayed. In addition, the Directive remains silent about the review mechanisms by Member States. This does not comply with UN standards.

In fact, the UN Secretary-General recommended UN Member States in its Plan of Action to Prevent Violent Extremism of 24 December 2015 to “review all national legislation policies, strategies and practices aimed at preventing and countering violent extremism [leading to terrorism] to ascertain whether they are firmly grounded in respect fro human rights and the rule of law, and whether they put in place national mechanisms designed to ensure compliance.” In fact, according to the former Special rapporteur on Human Rights and Counter-terrorism, the review process should comply with the following requirements:

“a) annual governmental review of and reporting on the exercise of powers under counter-terrorism laws

b) annual independent review of the overall operation of counter-terrorism laws

c) periodic parliamentary review.”

EDRi’s proposals:

Article 25 Transposition and review mechanisms by Member States
1. Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive by [12 months after adoption]. They shall forthwith communicate to the Commission the text of those provisions.
When Member States adopt those provisions, they shall contain a reference to this Directive or be accompanied by such a reference on the occasion of their official publication. Member States shall determine how such reference is to be made.
2. Member States shall communicate to the Commission the text of the main provisions of national law which they adopt in the field covered by this Directive.
3. Member States shall conduct annual independent reviews of and reporting on the exercise of powers under the laws falling within the scope of this Directive.

Article 26 Reporting
1. The Commission shall, by [24 months after the deadline for implementation of this Directive], submit a report to the European Parliament and to the Council, assessing the extent to which the Member States have taken the necessary measures to comply with this Directive.
2. The Commission shall, by [48 12 months after the deadline for implementation of this Directive], submit a report to the European Parliament and to the Council, assessing the impact and added value of this Directive on combating terrorism and its impact on fundamental rights and freedoms and the rule of law. The Commission shall take into account the information provided by Member States under Decision 2005/671/JHA and any other relevant information regarding the exercise of powers under counter-terrorism laws related to the transposition and implementation of this Directive.
3. In light of the independent reports of the European Commission, Member States shall conduct parliamentary periodic reviews.

 

ANNEX
How rules on ‘provocation of terrorism’ threaten free speech

EDRi is concerned that the Article 5 of the proposed Directive on Combating Terrorism might lead to collateral damage by harming freedom of expression. Similar rules on ‘provocation of terrorism’ and related crimes in Member States and abroad have in practice repeatedly been misapplied to cases which have little or nothing do with any commonly-held conception of ‘terrorism’.

Criminalising speech can be dangerous, with significant risks for the freedom of expression. Such measures have affected public figures such as artists and journalists who play an integral part in public debate. They have been applied to clear cases of irony and satire. Furthermore, in some cases, links to the actual threat of terrorism are highly implausible.

At the same time, law enforcement action in such cases can have a profound effect on freedom of expression. Police interference, even when it does not lead to conviction, can ‘set an example’ and create a chilling effect, pushing others to self-censor out of fear. It should also be kept in mind that attempts to censor speech often have counter-productive effects; repressing speech, especially with false positives, can do more harm to the perceived legitimacy of government institutions than to the extremist movements which they aim to counteract. Legislators must therefore proceed with caution when attempting to criminalise speech in support of terrorism.

We provide various examples such incidents in order to illustrate the risks inherent in criminalising speech, and in order to reaffirm the need for clear, limited and specific rules with adequate free speech safeguards.

France

The French government has also criminalised speech which ‘glorifies’ terrorism. This rule has led to many prosecutions, including cases criminalising expressions on social media, but also to comments made during arrests and other interactions with police.

• One of the most egregious examples is the prosecution of a sixteen-year-old posting on Facebook, who uploaded a parody of a Charlie Hebdo comic (original and parody viewable here). The teen had no prior criminal record and, according to prosecutor Yvon Ollivier did not have a ‘profile suggesting an evolution toward jihadism’. He is one of four minors prosecuted for glorification of terrorism in France. Even an eight-year-old has been interrogated.

• Another troubling example is that of the French comedian Dieudonné, known for his controversial statements. He, too, was prosecuted for a Facebook post, after he wrote ‘Je me sens Charlie Coulibaly’. For this statement, he was received a two-month suspended prison sentence.

• In numerous incidents, the statements in question were made under the influence of alcohol. In others, those prosecuted had mental health problems or learning difficulties.
United Kingdom

In the United Kingdom, the following Tweet was considered worthy of prosecution:

‘Crap! Robin Hood airport is closed. You’ve got a week and a bit to get your shit together otherwise I’m blowing the airport sky high!!’.

The conviction of Paul Chambers for sending a “menacing” public electronic message was eventually overturned on appeal, but only after two and a half years of litigation and after having being dismissed from his job as a result. UK law enforcement has also interrogated a 10-year-old and his parents for writing in a school assignment that he lived in a ‘terrorist house’.

Finally, a case involving a four-year-old child was referred to the police because s/he drew a cucumber and subsequently referred to the drawing as a “cooker bomb” instead of a “cucumber”.

While these cases were not based on a legal prohibition on the provocation of terrorism, they do illustrate how law enforcement authorities and certain institutions are prone to overreact and harm freedom of expression in the process.

Spain

Spain criminalises the ‘glorification of terrorism’. Those convicted include:
• Two puppeteers, who were convicted for a performance in which a puppet officer held up a miniature sign falsely accusing another puppet of terrorism, using a play on words that combined Al Qaeda and the Basque Terrorist Group ETA.

• A rapper convicted and condemned for two years of prison for having composed songs that allegedly glorified terrorism.

• A rapper, who was prosecuted for his posts on Twitter.

• A 21-year-old student, who posted on Twitter inciting a terror group known as ‘the Grapo’ – even though this group is considered ‘to have long lost its operative capability’ and was last active over 25 years ago.

Outside the European Union

Incidents from outside the EU further illustrate how rules arbitrarily prohibiting speech related to terrorism can lend themselves for abuse. These are a few examples:

In Turkey, two British journalists from the popular ‘Vice’ network were detained for ‘aiding a terrorist organisation’. Turkey has also blocked entire social media websites following terror attacks, such as when they blocked Twitter and Facebook in October 2015.
In Jordan, over a dozen journalists and activists have been prosecuted under the anti-terror law, with one activist being jailed for five months for criticising the royal family’s support of Charlie Hebdo on Facebook.

In Egypt, three journalists from Al Jazeera were sentenced to three years in prison for ‘broadcasting false information’ and ‘aiding a terrorist organisation’ for their reporting on the Muslim Brotherhood.

In Cameroon, a Radio France International correspondent was prosecuted for ‘complicity in terrorism and failing to denounce acts of terror’ as an alleged accomplice of the Boko Haram group.
For more information or clarification, please contact Joe McNamee (joe.mcnamee@edri.org) and Maryant Fernández (maryant.fernandez-perez@edri.org)

Tel. +32 22742570

 

 

 

The final EU/Turkey refugee deal: a legal assessment

ORIGINAL PUBLISHED ON EU LAW ANALYSIS (Friday, 18 March 2016)

Steve Peers

The EU and Turkey have now reached an agreement on refugee issues, which has aroused considerable legal and political controversy. To examine the arguments about the deal, I present here the main text with my legal assessment of each point annotated. This builds upon my comments (together with Emanuela Roman) first of all in general on the relevant points last month, and then secondly on the leaked draft text of the final deal earlier this week (I have reused here some of the latter analysis where relevant). The agreement should be read alongside the EU summit conclusions, as well as the Commission communication on the deal. It incorporates the March 7 EU/Turkey statement which addressed the same issues in less detail.

The text of the deal is underlined below. The sections in bold have been added during negotiations, and the sections in strike-out have been removed. I have already discussed the legal status of the deal in the prior post earlier this week: it’s a statement that is not subject to approval or legal challenge as such; but its implementation in the form of specific laws or their application to individual asylum-seekers can be challenged.

  1. All new irregular migrants crossing from Turkey into Greek islands as from 20 March 2016 will be returned to Turkey. This will take place in full compliance with EU and international law, thus excluding any kind of collective expulsion. All migrants will be protected in accordance with the relevant international standards and in respect of the principle of non-refoulement. It will be a temporary and extraordinary measure which is necessary to end the human suffering and restore public order, Migrants arriving in the Greek islands will be duly registered and any application for asylum will be processed indvidually by the Greek authorities in accordance with the Asylum Procedures Directive 2013/32/EU, in cooperation with UNHCR. Migrants not applying for asylum or whose application has been found unfounded or inadmissible in accordance with the said directive will be returned to Turkey,Turkey and Greece, assisted by EU institutions and agencies, will take the necessary steps and agree any necessary bilateral arrangements, including the presence of Turkish officials on Greek islands and Greek officials in Turkey as from 20 March 2016, to ensure liaison and thereby facilitate the smooth functioning of these arrangements. The costs of the return operations of irregular migrants will be covered by the EU. Migrants having been returned to Turkey will be protected in accordance with the international standards concerning the treatment of refugees and respecting the principle of non-refoulement.

The newly added first sentence is a flagrant breach of EU and international law – but the rest of the paragraph then completely contradicts it. To be frank, anyone with a legal qualification who signed off on this first sentence should hang their head in shame. Returning ‘all’ persons who cross from Turkey to the Greek islands wouldcontradict the ban on collective expulsion in the EU Charter and the ECHR, as well as EU asylum legislation. However, it does appear from the rest of the paragraph – including the newly added reference to non-refoulement (not sending people back to unsafe countries) – that this is not really the intention.

As for the rest of point 1, the first question is how ‘temporary’ this arrangement will be. Secondly, point 1 makes clear that the EU’s asylum procedure directive will apply to those who reach the Greek islands, as legally required. Note that the text does not refer to Greek waters: but the Directive explicitly applies to them too. It does not apply to international or Turkish waters. It is not clear what is planned as regards those intercepted before they reach the Greek islands.

As for ‘migrants not applying for asylum’ the crucial question is whether they will be given an effective opportunity to apply for asylum, as the Directive (and ECHR case law) requires. If an irregular migrant does not apply for asylum then in principle there is no legal obstacle to returning them to Turkey, subject to the conditions set out in the EU’s Returns Directive. Note that the Greek authorities will have to consider the applications, which is a significant administrative burden; this implicitly reiterates the closure of the route via the Western Balkans. The EU’s decisions on relocation of asylum-seekers from Greece and Italy (discussed here) will implicitly continue to apply, but they only commit to relocating a minority of those who arrive in Greece, and they are barely being applied in practice.

If an application is ‘unfounded’ that means it has been rejected on the merits. If it is ‘inadmissible’ that means it has not been rejected on the merits, but on the grounds that Turkey is either a ‘first country of asylum’ or ‘safe third country’ (there are other grounds for inadmissibility, but they wouldn’t be relevant). The Commission paper briefly suggests that Turkey could be a ‘first country of asylum’ (for more analysis on that, see the prior blog post). Most of the debate is on whether Turkey is a ‘safe third country’.

Is it? The commitments on treatment in Turkey have been moved from this statement to the separate summit conclusions. Treatment in Turkey will need to match EU rules in the procedures Directive, which define a ‘safe third country’ as a country where: the people concerned do not have their life or liberty threatened on ground of ‘race, religion, nationality, membership of a particular social group or political opinion’ (this test is taken from the Geneva Convention on refugee status); there is ‘no risk of serious harm’ in the sense of the EU definition of subsidiary protection (death penalty, torture et al, civilian risk in wartime); the people concerned won’t be sent to another country which is unsafe (the non-refoulement rule, referring specifically to the Geneva Convention, plus the ban on removal to face torture et al as laid down by ECHR case law); and ‘the possibility exists to request refugee status and, if found to be a refugee, to receive protection in accordance with the Geneva Convention’.

As set out in the previous blog post, the last point is questionable because Turkey does not apply the Geneva Convention to non-Europeans, and the best interpretation of this requirement is that it must do so in order for the clause to apply. However, this interpretation is not universally shared: the Commission, the Council, Greece and some academics take the view that it is sufficient that Turkey applies equivalent standards in practice. (Note that the Commission only selectively quotes the Directive to make this argument). Even if this latter interpretation is correct, whether Turkey does apply equivalent standards in practice might itself be open to question.

Furthermore, again as discussed in the previous post, many NGOs argue that refugees are not always safe from mistreatment in Turkey itself, although no one argues that all of them are mistreated there.  Equally Turkey allegedly returns some people (but clearly not all of them) to unsafe countries, and the deal explicitly plans for a ‘safe zone’ in Syria.  Such a zone is conceivable in theory, but whether it would indeed be safe would have to be judged when and if it happens; and it may become less (or more) safe in light of events. To address these issues the procedures Directive says that the asylum-seeker must be able to argue that ‘the third country is not safe in his or her particular circumstances’. Everything will then turn on the assessment of an argument along these lines.

A critical here is whether the case can be fast-tracked. The procedures Directive contains lists of cases where the administrative procedure can be fast-tracked, and where the appeal against a negative decision to a court doesn’t automatically entitle an asylum-seeker to stay. Note that those lists don’t refer to fast-tracking ‘safe third country’ cases, although in practice it may be quicker to decide a case without examining the merits. It is possibly arguable that the lists aren’t exhaustive. If Greece wants to take this view, the interpretation of these clauses will be crucial. If the cases can’t be fast-tracked, it will obviously take longer to return people to Turkey in practice. Member States can set up special ‘border procedures’, but there is no reference to fast-tracking applications in this context. Furthermore, Member States can’t apply fast-track or border procedures to ‘vulnerable’ applicants, as broadly defined, and can’t apply border procedures to unaccompanied minors.

Odd as it might seem, the general state of human rights in Turkey (for example, as regards freedom of expression) is not directly legally relevant to returning refugees or other migrants there. The question is whether Turkey is unsafe, as defined in EU asylum law, for refugees and migrants. However, the general state of human rights in Turkey is relevant for a different reason: the Commission has separately proposed that Turkey be designated a ‘safe country of origin’, so that any refugee claims byTurkish citizens can be more easily rejected. I argued last September that this proposal was untenable in light of the human rights record of Turkey. In light ofdevelopments since, I’ll update my assessment: the suggestion is now utterly preposterous. But this proposal is not part of the deal.

  1. For every Syrian being returned to Turkey from Greek islands, another Syrian will be resettled from Turkey to the EU taking into account the UN Vulnerability Criteria. A mechanism will be established, with the assistance of the Commission, EU agencies and other Member States, as well as the UNHCR, to ensure that this principle will be implemented as from the same day the returns start. On resettlement based on 1-for-l principle: a) Priority will be given to migrants Syrians who have not previously entered or tried to enterthe EU irregularly, On the EU side, resettlement under this mechanism will take place, in the first instance, by honouring the commitments taken by Member States in the conclusions of Representatives of the Governments of Member States meeting within the Council on 22/7/2015, of which 18.000 places for resettlement remain. Any further need for resettlement will be carried outthrough a similar voluntary arrangement up to a limit of an additional 54.000 persons. The Members of the European Council welcome the Commission’s intention to propose an amendment to the within the limits and in accordance with the distribution set out in [relocation decision of 22/9/2015 to allow for any resettlement commitment undertaken in the framework of this arrangement to be offset from non-allocated places under the decision. – non-allocated places].Should these arrangements not meet the objective of ending the irregular migration and the number of returns come close to the numbers provided for above, this mechanism will be reviewed. Should the number of returns exceed the numbers provided for above, this mechanism will be discontinued. the number of returns exceed the numbers provided for by these commitments, this agreement will be subject to review.

The idea of a ‘1-for-1’ swap of irregular migrants for resettled Syrians has been controversial, but does not raise legal issues as such. Resettlement of people who need protection from the countries they have fled to is common in practice, but is not a binding legal obligation under international or EU law. The legality of return of people to Turkey has to be judged separately (as discussed above) from the question of whatever trade-offs might be made in return for this. However, I certainly share the view of those who find a de facto ‘trade in human misery’ morally dubious. The ethos of resettlement is humanitarian; to demand a pay-off for one’s humanitarian actions contradicts their ethical foundations.

The final text makes clear that resettlement will focus on the most vulnerable people. Note that if all resettlement from now on takes place from Turkey, then no-one will be resettled by the EU from Lebanon and Jordan, which also host large numbers of Syrian refugees. On the ‘low priority’ cases, it is open to Member States to prioritise resettlement on whatever criteria they like. Obviously the intention here is to deter people from attempting unsafe journeys via smugglers; whether that would work depends on the numbers who might be resettled.

Overall, the EU has not increased the numbers of people that Member States are willing to accept: the first 18,000 are the remainder of the 23,000 people that the EU committed to resettle from non-EU countries last year, and the next 54,000 are the remainder of those who were going to be relocated from Hungary, before that state rejected the idea last September. However, unlike the mandatory quotas under the EU’s relocation decision, these numbers will be voluntary. The final deal makes clear that the maximum member of people who will be returned on this basis is 72,000: this part of the deal ends once the number of returned irregular migrants hits that number, or if the levels of irregular migration stop. In the latter case, the EU will move to a voluntary humanitarian admission scheme, discussed below. In the former case, it is not clear what will happen.

3)   Turkey will take any necessary measures to prevent new sea or land routes for illegal migration opening from up out of Turkey and into to the EU, and will cooperate with neighbouring states as well as the EU to this effect.

This refers to Bulgarian concerns that people might try to cross the Black Sea as a new entry route. Of course, if people do make to Bulgarian territory or waters, the EU asylum laws would apply, as they do for Greece.

4)   Once the irregular crossings between Turkey and the EU have come to an endare ending, or at least have been substantially and sustainably reduced, the Voluntary Humanitarian Admission Scheme will be activated. EU Member States will contribute on a voluntary basis to this scheme.

This scheme is set out in a Commission Recommendation from December, as discussed in detail here. Note that the text was amended to make clear that irregular crossings would not have to stop entirely; that was an obvious fantasy.

5) The fulfilment of the visa liberalisation roadmap will be accelerated vis-à-vis all participating Member States with a view to lifting the visa requirements for Turkish citizens at the latest by the end of June 2016, provided that all benchmarks have been met. To this end Turkey will take the necessary steps to fulfil the remaining requirements to allow the Commission to make, following the required assessment of compliance with the benchmarks, an appropriate proposal by the end of April on the basis of which the European Parliament and the Council can make a final decision.

This commitment is transposed from the March 7 statement. The waiver of short-term visas only applies to the Schengen States, and applies for stays of three months. Under the EU/Turkey readmission agreement, Turkey will have to take back anyone who overstays. It will still be necessary for Turkey to meet the relevant criteria, and for the EU Council (by qualified majority vote) and the European Parliament to approve this change in EU law.

6)   The EU, in close cooperation with and Turkey, will further speed up the disbursement of the initially allocated 3 billion euros under the Facility for Refugees in Turkey and ensure funding of additional further projects for persons under temporary protection identified with swift input from Turkeybefore the end of March. A first list of concrete projects for refugees, notably in the field of health, education, infrastructure, food and other living costs, that can be swiftly financed from the Facility, will be jointly identified within a week. Once these resources are about to be used to the full, and provided the above commitments are met, Furthermore, the EU will mobilisedecide on additional funding for the Facility of an additional 3 billion euro up to the end of 2018. [X] billion for the period [Y] for the Turkey Refugee Facility.

The amount and timing of additional money from the EU and its Member States was agreed during negotiations. Details of the timing of disbursements and the nature of the spending projects have also been added. Note that this money is not, as is widely assumed, simply handed over to Turkey: legally speaking it can only be spent on projects that assist the Syrian refugee population. The Commission paper sets out further details of how the money will be spent, starting with a contract to provide food aid to over 700,000 Syrians.

7) The EU and Turkey welcomed the ongoing  work on the upgrading of the Customs Union.

This refers to an intention to extend the existing customs union to cover services and investment issues.

8) The EU and Turkey reconfirmed their commitment to re-energise the accession process as set out in their joint statement of 29 November 2015. They welcomed the opening of Chapter 17 on 14 December 2015 and decided, as a next step, to open Chapter 33 during the Netherlands presidency. They welcomed that the Commission will put forward a proposal to this effect in April. Preparatory work for the opening of other Chapters will continue at an accelerated pace without prejudice to Member States’ positions in accordance with the existing rules.

Ultimately the EU and Turkey agreed to open only one new chapter out of 35 which need to be agreed in order for Turkey to join the EU. Only one chapter has been closed so far in a decade of negotiation. There is no commitment to open or close any further chapters. Even if an accession deal is ever negotiated, there are many legal and political obstacles in the way of it being approved, as all Member States’ parliaments would have to agree.

9) The EU and its Member States will work with Turkey in any joint endeavour to improve humanitarian conditions inside Syria, in particular in certain areas near the Turkish border which would allow for the local population and refugees to live in areas which will be more safe.

This refers to an intention (as noted above) to create a ‘safe zone’ within Syria. Whether this is viable or not remains to be seen. If there is any dispute about its safety, then returning Syrians to Turkey would be problematic if Turkey intends to send them further on to the alleged safe zone.

Conclusions

Overall the final deal tries to address the two main legal concerns about the March 7 ‘deal’. It makes clear that the EU asylum laws will apply to those who reach Greece (subject to the caveat about what happens to those intercepted in Greek waters), and that Turkey will have to meet the relevant standards when taking people back. The intention to ‘make the deal legal’ is clearly undermined by the extraordinary statement that ‘all’ irregular migrants will be returned. The key legal question will be how these commitments are implemented in practice.

The main legal route to challenging what happens should be by asylum-seekers through the Greek courts. Those courts could refer questions to the CJEU about EU asylum law (the CJEU could fast-track its replies). Alternatively if the asylum-seekers have gone through the entire Greek court system, or cannot effectively access the Greek system they could complain to the European Court of Human Rights (which is separate from the EU), and claim that there is a breach of the European Convention of Human Rights. In practice, however, it may be that access to lawyers and courts is more theoretical than real.

It is unfortunate, to say the least, that the EU did not try to ensure beyond doubt that the deal was legal, by putting in place some sort of effective monitoring of Turkish commitments as regards the treatment of refugees and migrants, in particular asking Turkey to fully apply the Geneva Convention to all refugees as a condition of the deal. After all, the EU will now be meeting a significant proportion of the costs of housing refugees in that country. It is even more disturbing that some Member States want to arrange for expedited returns to Libya. Surely before too long, the CJEU will asked to interpret the definition of ‘safe third country’ in EU asylum law. That finding will be crucial in determining whether it really is legal to return people to Serbia, Turkey, Libya and possibly other countries besides.

(Institutional Alert) :EU-Turkey statement, 18 March 2016

International Summit

Today the Members of the European Council met with their Turkish counterpart. This was the third meeting since November 2015 dedicated to deepening Turkey-EU relations as well as addressing the migration crisis.

The Members of the European Council expressed their deepest condolences to the people of Turkey following the bomb attack in Ankara on Sunday. They strongly condemned this heinous act and reiterated their continued support to fight terrorism in all its forms.

Turkey and the European Union reconfirmed their commitment to the implementation of their joint action plan activated on 29 November 2015. Much progress has been achieved already, including Turkey’s opening of its labour market to Syrians under temporary protection, the introduction of new visa requirements for Syrians and other nationalities, stepped up security efforts by the Turkish coast guard and police and enhanced information sharing. Moreover, the European Union has begun disbursing the 3 billion euro of the Facility for Refugees in Turkey for concrete projects and work has advanced on visa liberalisation and in the accession talks, including the opening of Chapter 17 last December. On 7 March 2016, Turkey furthermore agreed to accept the rapid return of all migrants not in need of international protection crossing from Turkey into Greece and to take back all irregular migrants intercepted in Turkish waters. Turkey and the EU also agreed to continue stepping up measures against migrant smugglers and welcomed the establishment of the NATO activity on the Aegean Sea. At the same time Turkey and the EU recognise that further, swift and determined efforts are needed.

In order to break the business model of the smugglers and to offer migrants an alternative to putting their lives at risk, the EU and Turkey today decided to end the irregular migration from Turkey to the EU. In order to achieve this goal, they agreed on the following additional action points:

1) All new irregular migrants crossing from Turkey into Greek islands as from 20 March 2016 will be returned to Turkey. This will take place in full accordance with EU and international law, thus excluding any kind of collective expulsion. All migrants will be protected in accordance with the relevant international standards and in respect of the principle of non-refoulement. It will be a temporary and extraordinary measure which is necessary to end the human suffering and restore public order. Migrants arriving in the Greek islands will be duly registered and any application for asylum will be processed individually by the Greek authorities in accordance with the Asylum Procedures Directive, in cooperation with UNHCR. Migrants not applying for asylum or whose application has been found unfounded or inadmissible in accordance with the said directive will be returned to Turkey. Turkey and Greece, assisted by EU institutions and agencies, will take the necessary steps and agree any necessary bilateral arrangements, including the presence of Turkish officials on Greek islands and Greek officials in Turkey as from 20 March 2016, to ensure liaison and thereby facilitate the smooth functioning of these arrangements. The costs of the return operations of irregular migrants will be covered by the EU.

2) For every Syrian being returned to Turkey from Greek islands, another Syrian will be resettled from Turkey to the EU taking into account the UN Vulnerability Criteria. A mechanism will be established, with the assistance of the Commission, EU agencies and other Member States, as well as the UNHCR, to ensure that this principle will be implemented as from the same day the returns start. Priority will be given to migrants who have not previously entered or tried to enter the EU irregularly. On the EU side, resettlement under this mechanism will take place, in the first instance, by honouring the commitments taken by Member States in the conclusions of Representatives of the Governments of Member States meeting within the Council on 20 July 2015, of which 18.000 places for resettlement remain. Any further need for resettlement will be carried out through a similar voluntary arrangement up to a limit of an additional 54.000 persons. The Members of the European Council welcome the Commission’s intention to propose an amendment to the relocation decision of 22 September 2015 to allow for any resettlement commitment undertaken in the framework of this arrangement to be offset from non-allocated places under the decision. Should these arrangements not meet the objective of ending the irregular migration and the number of returns come close to the numbers provided for above, this mechanism will be reviewed. Should the number of returns exceed the numbers provided for above, this mechanism will be discontinued.

3) Turkey will take any necessary measures to prevent new sea or land routes for illegal migration opening from Turkey to the EU, and will cooperate with neighbouring states as well as the EU to this effect.

4) Once irregular crossings between Turkey and the EU are ending or at least have been substantially and sustainably reduced, a Voluntary Humanitarian Admission Scheme will be activated. EU Member States will contribute on a voluntary basis to this scheme.

5) The fulfilment of the visa liberalisation roadmap will be accelerated vis-à-vis all participating Member States with a view to lifting the visa requirements for Turkish citizens at the latest by the end of June 2016, provided that all benchmarks have been met. To this end Turkey will take the necessary steps to fulfil the remaining requirements to allow the Commission to make, following the required assessment of compliance with the benchmarks, an appropriate proposal by the end of April on the basis of which the European Parliament and the Council can make a final decision.

6) The EU, in close cooperation with Turkey, will further speed up the disbursement of the initially allocated 3 billion euros under the Facility for Refugees in Turkey and ensure funding of further projects for persons under temporary protection identified with swift input from Turkey before the end of March. A first list of concrete projects for refugees, notably in the field of health, education, infrastructure, food and other living costs, that can be swiftly financed from the Facility, will be jointly identified within a week. Once these resources are about to be used to the full, and provided the above commitments are met, the EU will mobilise additional funding for the Facility of an additional 3 billion euro up to the end of 2018.

7) The EU and Turkey welcomed the ongoing work on the upgrading of the Customs Union.

8) The EU and Turkey reconfirmed their commitment to re-energise the accession process as set out in their joint statement of 29 November 2015. They welcomed the opening of Chapter 17 on 14 December 2015 and decided, as a next step, to open Chapter 33 during the Netherlands presidency. They welcomed that the Commission will put forward a proposal to this effect in April. Preparatory work for the opening of other Chapters will continue at an accelerated pace without prejudice to Member States’ positions in accordance with the existing rules.

9) The EU and its Member States will work with Turkey in any joint endeavour to improve humanitarian conditions inside Syria, in particular in certain areas near the Turkish border which would allow for the local population and refugees to live in areas which will be more safe.

All these elements will be taken forward in parallel and monitored jointly on a monthly basis.

The EU and Turkey decided to meet again as necessary in accordance with the joint statement of 29 November 2015.

WORTH READING : European Council Conclusions (17-18 March 2016)

I. MIGRATION

1. The European Council confirms its comprehensive strategy to tackle the migration crisis. Several elements of our common European response are in place today and are yielding results. Work on other elements is being taken forward diligently, so that they can be implemented as soon as possible. Priority will continue to be given to regaining control of our external borders.

2. Following the decisions of the Heads of State or Government of 7 March, and in the context of the Joint Action Plan with Turkey and its expansion, the European Council calls for:
• more work to be done on hotspots; much progress has been achieved in making all hotspots fully operational and increasing reception capacities; this effort should be continued, with the full assistance of the EU, including support for Greek asylum structures;
• the use of all means to support the capacity of Greece for the return of irregular migrants to Turkey in the context of the Greek-Turkish readmission Protocol and the EU-Turkey readmission agreement as of 1 June 2016. Member States declare their willingness to provide Greece at short notice with the necessary means, including border guards, asylum experts and interpreters. The European Council asks the Commission to coordinate all necessary support for Greece, for the full implementation of the EU-Turkey statement, and to develop an operational plan. The Commission will coordinate and organise together with Member States and agencies the necessary support structures to implement it effectively. The Commission will regularly report to the Council on its implementation;
• emergency support to be provided to help Greece cope with the humanitarian situation. The rapid adoption of the Regulation on emergency support is an important step in that respect. The draft amending budget presented by the Commission should be adopted without delay. Member States are invited to make immediate additional contributions under the Civil Protection Mechanism as well as to provide bilateral humanitarian assistance;
• accelerated relocation from Greece, which includes conducting the necessary security checks; the number of applications now being larger than the number of offers, as shown in the Commission report of 16 March, Member States should swiftly offer more places, in line with the existing commitments.

3. The European Council takes note of the Commission Communication “Next operational steps in EU-Turkey cooperation in the field of migration”, in particular as to how an asylum application from a migrant crossing from Turkey into Greece can be declared inadmissible, based on the concept of “first country of asylum” or “safe third country”, in accordance with European and international law.

4. The European Council reiterates that the EU-Turkey Statement does not establish any new commitments on Member States as far as relocation and resettlement are concerned.

5. The EU reiterates that it expects Turkey to respect the highest standards when it comes to democracy, rule of law, respect of fundamental freedoms, including freedom of expression.

6. The European Council reaffirms its support to Jordan and Lebanon. It calls for pledges to be disbursed promptly and EU Compacts to be finalised to enhance support to refugees and host communities in both countries.

7. The European Council calls for strengthening of cooperation with the Western Balkans countries in tackling the migration crisis and contributing to the objectives of the European Council.

8. Further to its February 2016 conclusions, the European Council invites the European Investment Bank to present to its June meeting a specific initiative aimed at rapidly mobilising additional financing in support of sustainable growth, vital infrastructure and social cohesion in Southern neighbourhood and Western Balkans countries.

9. The European Council is extremely vigilant as regards possible new routes for irregular migrants and calls for taking any measures that may become necessary in that respect. In this context, the fight against smugglers everywhere and by all appropriate means remains key. The EU stands ready to support the Government of National Accord, as the sole legitimate government of Libya, including, at its request, to restore stability, fight terrorism and manage migration in the central Mediterranean.

10. The European Council reaffirms its previous conclusions on the various elements of the comprehensive strategy and is pleased with progress on the European Border and Coast Guard proposal, which should be adopted as soon as possible. Work will also be taken forward on the future architecture of the EU’s migration policy, including the Dublin Regulation.

II. JOBS, GROWTH AND COMPETITIVENESS

11. To steer the Council’s discussions on the 2016 European Semester, the European Council endorsed the policy priority areas of the Annual Growth Survey: re-launching investment, pursuing structural reforms to modernise our economies, and conducting responsible fiscal policies. Member States will reflect these priorities in their forthcoming National Reform Programmes and Stability or Convergence Programmes. Such policies will contribute to placing the current recovery on a more sustainable basis and to fostering growth and employment. The European Council notes the Commission consultation on social issues and stresses the importance of well-functioning labour markets and welfare systems.

12. At its June meeting, the European Council will discuss the progress achieved in the work towards completing the Economic and Monetary Union. It will also adopt an Agenda for the implementation of all aspects of the Single Market, including delivery of the Commission’s Single Market, Digital Single Market and Capital Markets Union strategies, with a view to exploiting in full its untapped growth and productivity potential.

13. In the light of the difficult situation of the European steel sector, in a context of overcapacity at global level, the European Council calls on the Council to rapidly examine the Commission’s communication with a view to taking strong action in response to this challenge.

14. The European Council notes the situation of farmers, notably in the dairy and pig sectors, who are seriously affected by the drop in prices. It invites the Commission to quickly act upon the outcome of the Council (Agriculture) meeting of 14 March. It will closely follow the evolution of this sector of such importance for Europe.

15. The European Council notes that the Commission intends to publish shortly a communication on an action plan on VAT. It welcomes the intention of the Commission to include proposals for increased flexibility for Member States with respect to reduced rates of VAT, which would provide the option to Member States of VAT zero rating‎ for sanitary products.

III. CLIMATE AND ENERGY

16. The European Council welcomes the submission by the Commission of the package on energy security as well as of the Communication “Road from Paris”. It encourages the legislators to proceed with work on the proposals to reinforce the EU energy security as a matter of priority on the basis of its previous conclusions and the relevant strategies endorsed by the European Council. It also recalled the importance of a fully-functioning and interconnected energy market. Based on the Climate Communication, it underlines the EU’s commitment to reduce greenhouse gas emissions domestically and to increase the share of renewable energies and improve energy efficiency as agreed by the European Council in October 2014. Adapting the legislation in order to implement this framework remains a priority. The European Council invites the Commission to rapidly present all the remaining relevant proposals to this end so as to swiftly engage the legislative process. The European Council looks forward to the signature of the Paris Agreement in New York on 22 April and underlines the need for the European Union and its Member States to be able to ratify the Paris Agreement as soon as possible and on time so as to be Parties as of its entry into force.

MEIJERS COMMITTEE : Notes on an EU Proposal for a Directive on combating terrorism

ORIGINAL PUBLISHED HERE (16 March 2016) (emphasis in the text below are added)

The Meijers Committee would like to comment on the European Commission’s proposal for a Directive on combating terrorism,1 partly in light of the proposals made in the Council’s General Approach of 3rd of March 2016 and the European Parliament’s LIBE Committee’s draft report of 10th of March 2016.

The Meijers Committee holds that the proposal is insufficiently substantiated, that it extends the scope of criminal law too far and compromises fundamental rights. 1.

The Meijers Committee wishes to express its support for the idea of reviewing existing EU criminal law instruments in the field of counter-terrorism. A review of the 2002 Framework Decision (as revised in 2008) offers an excellent opportunity to take a critical look at its provisions in light of the ambitions of the European institutions regarding a coherent criminal policy.

In this regard, the Meijers Committee recalls that in recent years the European Commission, the Council and the Parliament have clearly expressed themselves in favour of developing EU-level criteria for the criminalization of behaviour.2 The underlying idea is to create a coherent EU criminal law system that avoids unnecessary and unclear criminal law offenses in EU instruments. 2.

Moreover, the Meijers Committee wonders how the proposed directive relates to the European institutions’ laudable initiatives on de-radicalisation, disengagement and rehabilitation of (potential) ‘foreign fighters’ and returnees – e.g. the European Commission has stated in this regard that prosecution can have adverse side-effects: ‘the threat of prosecution may discourage certain individuals from returning who would otherwise be valuable sources of intelligence or be persuaded to de-legitimise terrorist groups and actively support counter-narratives among their peers. Also, if aspiring foreign fighters are likely to be prosecuted, their relatives may be more reluctant to alert the authorities to signs of radicalisation and preparation.‘3 Moreover, prisons can become breeding grounds for further radicalisation and many EU prisons are currently overcrowded. In the view of the Meijers Committee, discussions about broadening the scope of the criminal law should be fully coordinated with these meaningful initiatives in order to achieve ‘better regulation’.

3. Unfortunately, the opportunity to develop criminal law on terrorism in line with these considerations is not taken up in the current proposal. For instance, in its Conclusions on model provisions guiding the Council’s criminal law deliberations, the Council held that ‘criminalisation of a conduct at an unwarrantably early stage‘ should be avoided – yet this aspect is particularly problematic in the current proposal. It creates a far-reaching extension of the scope of Member States’ criminal law obligations in the field of terrorism that takes these obligations even further into the preparatory phase of possible harmful conduct.

4. It is notable that the European Commission has chosen not to conduct an impact assessment of the proposed directive, ‘given the urgent need to improve the EU framework to increase security in the light of recent terrorist attacks including by incorporating international obligations and standards’. The legislative process so far also gives the general impression that legislation is being rushed through, without looking at the serious societal impacts that it could have. The Meijers Committee is of the opinion that such a rushed procedure does not do justice to the importance of a balanced legal response to terrorism, especially since the proposal concerns far-reaching powers under criminal law that can be exercised at a very early stage and that can have a serious impact on people’s lives. Legislation in the field of counterterrorism (including EU legislation4 ) is all too ofen characterized by short-term thinking and a lack of legislative scrutiny, whereas the new, far-reaching powers are then retained for a considerable time, sometimes also being used outside the counter-terrorism context. According to the Meijers Committee, the European institutions should make a joint effort to avoid falling into such traps and to engage in a profound, careful consideration of these proposals and a serious investigation of the functioning of existing instruments (not being limited to operational aspects but also looking at the effects of measures on fundamental rights and possible adverse side-effects). The fact that international obligations in this area have already been adopted does not discharge the EU legislature of the obligation to make its own critical assessment of these measures, especially since these existing international obligations have been adopted without much democratic oversight and scrutiny.

5. The Meijers Committee is of the opinion that the Commission’s proposal is only weakly substantiated. It is stated that ‘More coherent, comprehensive and aligned national criminal law provisions are necessary across the EU to be able to effectively prevent and prosecute foreign terrorist fighters-related offences and to respond in an appropriate manner to the increased cross-border practical and legal challenges.’ However, the Commission provides no sources nor does it explain why the current instruments are insufficient and ineffective; neither does it give examples of situations that cannot be tackled at the present time. The proposal mentions ‘loopholes’ and ‘enforcement gaps’, but does not specify them and does not delve into the causes. It is the view of the Meijers Committee that such far-reaching proposals require a firmer basis. The focus should be on the effective use of existing powers and ways by which Member States can collaborate, e.g. in the area of information exchange, rather than creating new rules – something that is also required by the proportionality principle (art 5 TEU).

6. All EU Member States have bound themselves to the obligation to respect fundamental rights. That is also the case in regard to the implementation of obligations to criminalize behavior. It is worrying that the text of the proposed directive makes no reference to fundamental rights whatsoever (except in the preamble), whereas the Framework Decisions do. The Meijers Committee holds that the directive itself should clearly outline the obligation to respect fundamental rights. In particular, there is a risk that implementation of the measures envisaged will in practice encroach upon the right to non-discrimination by disproportionately targeting Muslims. The offenses may be neutrally formulated, but considering the reasons and objectives outlined in the explanatory memorandum, the instrument seems to be particularly geared towards jihadism. In the proposal, only recital 20 states rather weakly that implementation ‘should exclude any form of arbitrariness or discrimination.‘ The Meijers Committee proposes that the text of the directive itself provide for clear and strong guarantees against discrimination.

6a. The Council’s proposal to refer to media freedom in Article 21bis is an improvement of the Commission’s proposal. The Meijers Committee proposes to add a reference in the text to freedom of expression in general as well as other fundamental rights that are at stake, including freedom of religion, non-discrimination and freedom of movement, and to specify requirements for the restriction of these rights in the context of specific offenses. This also means that the elements of the separate offenses included should be restricted in such a way as to ensure that implementation does not risk encroaching on these fundamental rights (as specified below).

7. The broad definition of terrorism is unaltered in the proposal. Amongst other things, attacks against the military and military infrastructure of dictatorial regimes are included in the definition. In its outcome document on the 2002 Framework Decision, the Council stated that the instrument ‘covers acts which are considered by all Member States of the European Union as serious infringements of their criminal laws committed by individuals whose objectives constitute a threat to their democratic societies respecting the rule of law and the civilisation upon which these societies are founded. It has to be understood in this sense and cannot be construed so as to argue that the conduct of those who have acted in the interest of preserving or restoring these democratic values, as was notably the case in some Member States during the Second World War, could now be considered as “terrorist” acts. Nor can it be construed so as to incriminate on terrorist grounds persons exercising their fundamental right to manifest their opinions, even if in the course of the exercise of such right they commit offences.’5 The Meijers Committee holds that this fundamental dilemma deserves renewed consideration by the European legislature and that the outcome of such considerations should be clearly laid down in the text of the directive.

7a. This definition can lead to unjust results, especially in combination with a broad array of preparatory offenses. For instance, incitement to attacks against the military infrastructure of dictatorial regimes, and glorification of such attacks, would also be prohibited. The proposed directive contains no guarantees to prevent such criminal offences from being used arbitrarily or inconsistently, whereas the risk is certainly present. 8. As indicated above, the Council (in light of the debate about criteria for criminalization) has stated that ‘criminalisation of a conduct at an unwarrantably early stage’ should be avoided; ‘conduct which only implies an abstract danger to the protected right or interest should be criminalised only if appropriate considering the particular importance of the right or interest which is the object of protection.‘6 The definition of criminal offenses should be clearly delineated, as required by the legality principle (article 49 EU Charter of Fundamental Rights). It is the view of the Meijers Committee that this also implies that the definition should be so strict that the behavior to be criminalized is not too far removed from the potential harm (from the potential terrorist attacks themselves), and such harm should actually be intended. In this regard, several proposed offenses are problematic (as indicated below). For now, it is important to note that the proposal offers unprecedented opportunities to cumulate offenses – e.g. inciting the distribution of a message to the public with the intent to incite the commission of a terrorist offense (art. 16(2) / art. 5), and inciting the financing of training for terrorism (art. 16(2) / art. 11 / art. 8). Moreover, the proposal would oblige Member States to criminalize ‘aiding and abetting the soliciting of another person to participate in the activities of a terrorist group, including by supplying information or material resources, or by funding its activities in any way‘ (art. 16 lid 3 / art. 6 / art. 4 sub b). This enlarges the scope of the criminal law even further and can lead to absurd situations.

8a. It is important to keep in mind that, in common with substantive criminal law, criminal procedural law in the field of counter-terrorism often also extends further into the preparative phase than ‘normal’ criminal procedural law. In the Netherlands, for instance, ‘indications’ of an offense (rather than a reasonable suspicion) are sufficient to deploy certain procedural powers. Thanks to the combination of broader substantive and procedural law provisions, the government can act at an extremely early stage. Many of the offenses in the proposed directive do indeed target acts that would otherwise be considered ‘normal’ innocent behaviour, such as taking a chemistry course or buying fertilizer. Thus, because the actus reus cannot make the difference, a person’s alleged intention (mens rea) plays an even greater role, and in the field of terrorism there is a greater risk that the authorities may derive such an intention (in part) from ideologies and/or religious beliefs. In the current societal context, that means that there is a genuine risk that Muslims will be disproportionately targeted in practice.

9. With regard to Article 2(d), the Meijers Committee wonders what is meant by a ‘structured group’ that ‘does not need to have (…) a developed structure.’

10. The proposed article 15 states that for an offence referred to in Article 4 and Title III to be punishable, it shall not be necessary that a terrorist offence be actually committed, nor shall it be necessary to establish a link to a specific terrorist offence (or, regarding articles 9 to 11, to specific offences related to terrorist activities). In the explanatory memorandum this is explained as follows: ‘For instance, for the criminalisation of the recruitment to terrorism it is not necessary that the person is solicited to commit a specific terrorist offence or that the person providing training for terrorism instructs a person in the commission of a specific terrorist offence. In the same spirit, for the criminalisation of the financing of terrorism, it is sufficient that there is knowledge about the use of the funds for purposes furthering the terrorist activities in general without there being a need to be linked to for instance a specific already envisaged travel abroad.’

The Meijers Committee is of the opinion that this addition to article 15 (which is not included in the Framework Decision) stretches the relationship between behaviour and potential harmful consequences too far; no such relationship is required at all. In fact, the Meijers Committee holds that the requirement that the behaviour in question poses a real danger of possible terrorist offences is important for preparatory offences in general. If the conduct described is capable of creating harm in exceptional situations, the prohibition should be limited to those exceptional situations. With regard to article 8 (receiving training) such a requirement is referred to in the explanatory memorandum; in article 5, a requirement to this end is laid down in the text itself. The Meijers Committee recommends, having regard to article 8 and the other offences in the directive, that the relationship between behaviour and possible harm should be more clearly expressed in the text.

11. Although it is positive that article 5 contains a ‘danger’ criterion, the Meijers Committee considers that an even stricter criterion is needed to limit the scope of the provocation offence, since the right to freedom of expression is so clearly at stake here. In its current form, the offence potentially criminalizes sympathizers with the ideology underlying terrorist groups, but who do not necessarily accept the violence as such; it could thus make non-violent resistance suspect and thereby be counterproductive. Moreover, because the definition of terrorism in the proposed directive is so broad, discussions of possible justifications for violent resistance in exceptional circumstances are also criminalised: in a free society, such debates should not be settled by criminal law. With all of the opportunities offered for the cumulation of offences, the risk of creating a ‘chilling effect’ on freedom of speech is even greater, e.g. criminalizing the financing of the propagation of such ideologies. The offense should be further restricted, e.g. by requiring a ‘serious and actual danger’ and/or as the LIBE draf report states a ‘clear and substantial danger’, or by reviving the Parliament’s proposal with regard to the 2008 revision of the Framework Decision to limit the article to ‘conduct that clearly and intentionally advocates the commission of a terrorist offence where such conduct manifestly causes a danger that such offences are committed’.

11a. The proposal is also problematic in that it explicitly criminalises indirect provocation. Especially in combination with the preamble, which states that ‘The offenses related to public provocation to commit a terrorist offence act comprise, inter alia, the glorification and justification of terrorism or the dissemination of messages or images including those related to the victims of terrorism as a way to gain publicity for the terrorists cause or seriously intimidating the population’, this recital leads to a disproportional infringement of freedom of expression including the freedom of the press and should be renounced. The explanatory memorandum states that ‘Such messages and images may also include those denigrating victims of terrorism, including their families’, which makes the offence even less clear: some Member States may interpret this as meaning that, even if there is no real danger of future offenses, offense to victims and their families is sufficient reason to criminalize expressions.

The text proposed in the Council, which specifically mentions glorification of terrorism in the text of the directive, is even more problematic – as is the LIBE draf report’s addition of the words ‘or glorify’: the Meijers Committee strongly believes that these proposals should be renounced. Instead, the directive should explicitly exclude glorification or justification of terrorism from its reach, because it is particularly with these types of prohibitions that the risk of encroaching upon freedom of expression is very high. Moreover, the proposal to change the text to ‘advocates the commission of terrorist offences thereby causing a danger‘ is a significant step back in terms of freedom of expression: it could be interpreted so as to mean that advocating the commission of terrorist offenses (whether directly or indirectly, including by glorification) automatically causes a danger. This would make the ‘danger’ requirement ineffective and superfluous. The safeguard that the Council proposes in recital 20A (‘Nothing in this Directive should be interpreted as being intended to reduce or restrict the dissemination of information for scientific, academic or reporting purposes. The expression of radical, polemic or controversial views in the public debate on sensitive political questions, falls outside the scope of this Directive and, in particular, of the definition of public provocation to commit terrorist offences’) should, in the view of the Meijers Committee, be included in the text of the directive itself.

11b. The Meijers Committee further believes that the Council’s addition to recital 7 – ‘it seems appropriate for Member States to take measures to remove or to block access to webpages publicly inciting to commit terrorist offences. Where such measures are taken, they must be set by transparent procedures and provide adequate safeguards, in particular to ensure that restrictions are limited to what is necessary and proportionate’falls outside the scope of this instrument and creates a particularly pressing risk for freedom of expression and freedom of the internet, especially since the proposal does not oblige involvement of the judiciary in such blocking measures.

12. The proposed articles 7 and 8 refer to providing and receiving training ‘for the purpose of committing of or contributing to [in article 8: the commission of]’ one of the terrorist offences mentioned. The Meijers Committee recommends specifying what is meant by ‘contributing to [the commission of]’ these offences and why this addition is necessary. Moreover, it is advised that the text of article 8 makes it clear that active participation in the training is required and that ‘the mere fact of visiting websites containing information or receiving communications, which could be used for training for terrorism, is not enough’ as the explanatory memorandum states.

13. The need for and proportionality of the proposed new criminal offences of travelling abroad for terrorism and organising or otherwise facilitating such travel (articles 9 and 10) are not sufficiently demonstrated, also in light of existing criminal offences in the Member States and other legal options, such as taking passports.

Moreover, the Meijers Committee considers that these articles are too loosely defined for such far-reaching restrictions of the right to liberty of movement, which entails the right to leave any country including one’s own (Article 2, Fourth Protocol to the ECHR). Article 9 refers to travelling abroad ‘for the purpose of the commission of or contribution to a terrorist offence referred to in Article 3 (…)’. The wording ‘or contribution to’ makes the offence excessively broad and unclear: there is no explanation of what this could entail. Moreover, the Meijers Committee considers the criminalisation of travelling abroad to participate in the activities of a terrorist group particularly far-reaching, as the offence of article 4 in itself is already quite broad. Article 10 includes the term ‘otherwise facilitating’; according to the Commission this ‘is used to cover any other conduct than those falling under “organisation” which assists the traveller in reaching his or her destination. As an example, the act of assisting the traveller in unlawfully crossing a border could be mentioned.’ This makes the provision very broad and unclear. Although the organisation or facilitation needs to be committed intentionally and ‘knowing that the assistance thus rendered is for that purpose’, apparently there is no requirement that the organiser or facilitator has the purpose of contributing to the commission of terrorist offences.

All these elements together lead to a greatly expanded scope of criminal liability for an otherwise ordinary activity – travelling abroad. Almost everything will thus come down to the alleged purposes of the traveller, an assessment that is lef to domestic law. Some Member States will be able to interpret this very broadly, e.g. judging that travelling to a certain ‘suspect’ region will in principle be sufficient to prove a terrorist purpose.

Thus, there is a risk of reversing the burden of proof, which will prove especially problematic for humanitarian organisations and journalists. Should the offences be adopted, the Meijers Committee holds that it is at least absolutely necessary that they are limited to travelling outside the EU. Moreover, The Meijers Committee concurs with the LIBE committee’s draf report that ‘the act of travelling should be criminalised under very specific conditions and only when the intention of doing so for a terrorist purpose is proven by inferring, as much as possible, from objective, factual circumstances’; such specific guarantees should be included in the text itself.

14. The Meijers Committee is not convinced of the need to establish jurisdiction for non-EU nationals who provide training for terrorism to nationals or residents abroad, as proposed in Article 21 (1)(d). There should be particularly compelling reasons for establishing such a far reaching ground for jurisdiction, especially where offences in the preparatory stage are concerned. The Commission, in the view of the Meijers Committee, has failed to demonstrate such compelling reasons. It is also highly questionable whether this form of jurisdiction will actually be used in practice.

15. The Council proposes to include a specific provision on investigative tools. According to the Meijers Committee, this falls outside the scope of the directive. The same is true of the LIBE draf report’s proposal on ‘asset freezing’ in Article 11a. That said, the breadth of criminal procedural powers in the field of terrorism is certainly something that the European legislature should be concerned about, but not just from a law enforcement perspective; rather, the balance between effective investigations and fundamental rights requires more careful consideration. This is particularly pressing with regard to offences, such as those contained in the proposed directive, where evidence gathering may be difficult because they are committed in third countries with worrying human rights records. Moreover, the relationship between criminal (substantive and procedural) counter-terrorism law and other fields of counter-terrorism law should be borne in mind when drafing this directive. For example, some states have adopted or proposed far-reaching administrative law measures, such as removing a person’s nationality after that person has been convicted of terrorist offences (or even in the absence of a criminal conviction). According to the Meijers Committee, the European legislature should consider how the current proposal relates to such initiatives

 

NOTES

1 2 December 2015, COM(2015) 625 final.
2 Council Conclusions on model provisions, guiding the Council’s criminal law deliberations, 2979th JHA Council meeting, 30 Nnovember 2009; European Parliament, Resolution ‘An EU approach to criminal law’, 22 May 2012 (2010/2310(INI)); European Commission Communication ‘Towards an EU Criminal Policy: Ensuring the effective implementation of EU policies through criminal law’, 20 September 2011, (COM(2011)0573).
3 European Commission, Background document to the High-Level Ministerial Conference ‘Criminal justice response to radicalisation’, 19 October 2015, Brussels, p. 2.
4 SECILE Consortium, led by Professor Fiona de Londras, Securing Europe through Counter-Terrorism: Impact, Legitimacy and Effectiveness. Final report summary, 2015, http://cordis.europa.eu/result/rcn/164039_en.html.
5 Outcome of the proceedings, 7 December 2001, 14845/1/01 Rev. 1, Draft Council Statement.
6 Council Conclusions on model provisions, guiding the Council’s criminal law deliberations, 2979th JHA Council meeting, 30 November 2009, par. 5.

(*) About
The Meijers Committee is an independent group of legal scholars, judges and lawyers that advises on European and International Migration, Refugee, Criminal, Privacy, Antidiscrimination 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), Foundation for Democracy and Media (Stichting Democratie en Media) the Dutch Refugee Council (VWN), Foundation for Migration Law Netherlands (Stichting Migratierecht Nederland), 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: post@commissie-meijers.nl +31(0)20 362 0505 Please visit http://www.commissie-meijers.nl for more information.

 

European Commission : NEXT OPERATIONAL STEPS IN EU-TURKEY COOPERATION IN THE FIELD OF MIGRATION

ORIGINAL PUBLISHED HERE

Brussels, 16.3.2016 COM(2016) 166 final :

COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT, THE EUROPEAN COUNCIL AND THE COUNCIL

NEXT OPERATIONAL STEPS IN EU-TURKEY COOPERATION IN THE FIELD OF MIGRATION

  1. INTRODUCTION

On 7 March 2016, the Heads of State or Government of the European Union and the Prime Minister of Turkey discussed EU-Turkey relations and the progress made in the implementation of the Joint Action Plan.1

It was agreed that bold moves were needed to close down people smuggling routes, to break the business model of the smugglers, to protect our external borders and to end the migration crisis in Europe. The need to break the link between getting in a boat and staying in Europe was emphasised.

The NATO operation in the Aegean Sea, one of the tasks of which will be to identify potential smuggling activity and notify the Turkish authorities in real time, is an important element in these efforts. Cooperation between the NATO operation and Frontex will be crucial in stemming the flow of irregular migrants.

To decrease the irregular flow of migrants from Turkey to the EU, the leaders warmly welcomed the additional proposals made by Turkey and agreed to work with Turkey on the basis of a set of six principles. The President of the European Council was requested to take forward these proposals and work out the details with Turkey before the March European Council. This Communication sets out how the six principles should be taken forward, delivering on the full potential for EU-Turkey cooperation while respecting European and international law.

Together with joint European solutions and the comprehensive implementation of the European Migration Agenda, cooperation between EU and Turkey is key for an effective response to the refugee and migrant challenge.

These joint efforts to deal with refugees are part of our global engagement with Turkey as candidate country and as strategic partner.

  1. SIX PRINCIPLES FOR FURTHER DEVELOPING EU-TURKEY COOPERATION IN TACKLING THE MIGRATION CRISIS

Continue reading “European Commission : NEXT OPERATIONAL STEPS IN EU-TURKEY COOPERATION IN THE FIELD OF MIGRATION”

The draft EU/Turkey deal on migration and refugees: is it legal?

ORIGINAL PUBLISHED ON EU LAW ANALYSIS (Wednesday, 16 March 2016)

by Steve Peers

In the last week, there has been considerable legal controversy over the planned EU/Turkey agreement on refugee issues. I commented (together with Emanuela Roman) in general on the relevant points last month, but now we have a leaked draft text of a final deal. (See also today’s Commission communication on the deal, which adds a lot of important detail). This is a good moment to comment specifically on this draft, just before the summit meeting due to finalise it.

I have underlined the full leaked text below, and added annotated comments on each part of it. I will update this blog post if necessary in light of the final deal (if there is one).

The agreement will be formulated as an EU-Turkey statement. It will take as its basis the principles set out in the statement of 7/3/2016 while adding the following elements:

a) Since the agreement will take the form of a ‘statement’, in my view it will not as such be legally binding. Therefore there will be no procedure to approve it at either EU or national level, besides its endorsement by the summit meeting. Nor can it be legally challenged as such. However, the individual elements of it – new new Greek, Turkish and EU laws (or their implementation), and the further implementation of the EU/Turkey readmission agreement – will have to be approved at the relevant level, or implemented in individual cases if they are already in force. I will come back to the implications of this below.

b) The March 7 EU/Turkey statement is still applicable. As a reminder, it provided that: ‘all new irregular migrants’ reaching the Greek islands from Turkey would be returned to Turkey, with the EU covering the costs; there would be a ‘one-for-one’ resettlement of Syrians from Turkey by the EU, for every Syrian readmitted by Turkey; the aim was to lift short-term visa requirements for Turkey by June 2016; the existing €3 billion in EU and Member State funds committed for Syrian refugees in Turkey would be spent more quickly, with a decision on ‘additional funding’; the EU and Turkey would ‘prepare for the decision’ on opening new chapters in the accession process; and the EU and Turkey would work toward a de facto ‘safe zone’ in part of Syria. The statement also included some commitments on restoring Schengen, but they aren’t affected by the draft full deal.

As regards accession to the EU, note that: there are 35 ‘chapters’ to be negotiated; only one chapter has been closed to date in a decade of accession talks; a commitment to prepare for opening a chapter does not close a chapter, or even mean that a chapter will be opened (any Member State can still block this); it takes years to negotiate chapters; and there are many political obstacles to approving Turkish accession, which requires national government and parliament approval in every Member State (and possibly referendums in some).

1. On returns to Turkey: a) This will be a temporary and extraordinary measure which is necessary to end the human suffering and restore public order, b) Migrants arriving in the Greek islands will be duly registered and any application for asylum will be processed by the Greek authorities in accordance with Directive 2013/32/EU. Migrants not applying for asylum or whose application has been found unfounded or inadmissible in accordance with the said directive will be returned to Turkey, c) Migrants having been returned to Turkey will be protected in accordance with the international standards concerning the treatment of refugees and respecting the principle of non-refoulement.

a) How temporary exactly? b) This makes clear that the EU’s asylum procedure directive will apply to those who reach the Greek islands, as legally required. Note that the text does not refer to Greek waters: but the Directive explicitly applies to them too. It does not apply to international or Turkish waters. It is not clear what is planned as regards those intercepted before they reach the Greek islands.

As for ‘migrants not applying for asylum’ the crucial question is whether they will be given an effective opportunity to apply for asylum, as the Directive (and ECHR case law) requires. If an irregular migrant does not apply for asylum then in principle there is no legal obstacle to returning them to Turkey, subject to the conditions set out in the EU’s Returns Directive. Note that the intention is that the Greek authorities consider any application, which is a significant administrative burden; this implicitly reiterates the closure of the route via the Western Balkans. The EU’s decisions on relocation of asylum-seekers from Greece and Italy (discussed here) will implicitly continue to apply, but they only commit to relocating a minority of those who arrive in Greece, and they are barely being applied in practice.

If an application is ‘unfounded’ that means it has been rejected on the merits. If it is ‘inadmissible’ that means it has not been rejected on the merits, but on the grounds that Turkey is either a ‘first country of asylum’ or ‘safe third country’ (there are other grounds for inadmissibility, but they wouldn’t be relevant). The Commission paper briefly suggests that Turkey could be a ‘first country of asylum’ (for more analysis on that, see the prior blog post). Most of the debate is on whether Turkey is a ‘safe third country’. Is it? This brings us to…

c) The commitments on treatment in Turkey are meant to match EU rules in the procedures Directive, which define a ‘safe third country’ as a country where: the people concerned do not have their life or liberty threatened on ground of ‘race, religion, nationality, membership of a particular social group or political opinion’ (this test is taken from the Geneva Convention on refugee status); there is ‘no risk of serious harm’ in the sense of the EU definition of subsidiary protection (death penalty, torture et al, civilian risk in wartime); the people concerned won’t be sent toanother country which is unsafe (the non-refoulement rule, referring specifically to the Geneva Convention, plus the ban on removal to face torture et al as laid down by ECHR case law); and ‘the possibility exists to request refugee status and, if found to be a refugee, to receive protection in accordance with the Geneva Convention’.

As set out in the previous blog post, the last point is questionable because Turkey does not apply the Geneva Convention to non-Europeans, and the best interpretation of this requirement is that it must do so in order for the clause to apply. However, this interpretation is not universally shared: the Commission, the Council, Greece and some academics take the view that it is sufficient that Turkey applies equivalent standards in practice. (Note that the Commission only selectively quotes the Directive to make this argument). This seems to be what the text of the draft deal is pushing towards. Of course, whether Turkey does apply equivalent standards in practice might itself be open to question.

Furthermore, again as discussed in the previous post, many NGOs argue that refugees are not always safe from mistreatment in Turkey itself, although no one argues that all of them are mistreated there.  Equally Turkey allegedly returns some people (but clearly not all of them) to unsafe countries, and the March 7 deal explicitly plans for a ‘safe zone’ in Syria.  Such a zone is conceivable in theory, but whether it would indeed be safe would have to be judged when and if it happens; and it may become less (or more) safe in light of events. To address these issues the procedures Directive says that the asylum-seeker must be able to argue that ‘the third country is not safe in his or her particular circumstances’. Everything will then turn on the assessment of an argument along these lines.

A critical here is whether the case can be fast-tracked. The procedures Directive contains lists of cases where the administrative procedure can be fast-tracked, and where the appeal against a negative decision to a court doesn’t automatically entitle an asylum-seeker to stay. Note that those lists don’t refer to fast-tracking ‘safe third country’ cases, although in practice it may be quicker to decide a case without examining the merits. It is possibly arguable that the lists aren’t exhaustive. If Greece wants to take this view, the interpretation of these clauses will be crucial. If the cases can’t be fast-tracked, it will obviously take longer to return people to Turkey in practice. Member States can set up special ‘border procedures’, but there is no reference to fast-tracking applications in this context. Furthermore, Member States can’t apply fast-track or border procedures to ‘vulnerable’ applicants, as broadly defined, and can’t apply border procedures to unaccompanied minors.

Odd as it might seem, the general state of human rights in Turkey (for example, as regards freedom of expression) is not directly legally relevant to returning refugees or other migrants there. The question is whether Turkey is unsafe, as defined in EU asylum law, for refugees and migrants. However, the general state of human rights in Turkey is relevant for a different reason: the Commission has separately proposed that Turkey be designated a ‘safe country of origin’, so that any refugee claims byTurkish citizens can be more easily rejected. I argued last September that this proposal was untenable in light of the human rights record of Turkey. In light ofdevelopments since, I’ll update my assessment: the suggestion is now utterly preposterous. But this proposal is not part of the deal.

2. On resettlement based on 1-for-l principle: a) Priority will be given to Syrians who have not previously entered the EU irregularly, b) On the EU side, resettlement under this mechanism will take place, in the first instance, by honouring the commitments taken by Member States in the conclusions of Representatives of the Governments of Member States meeting within the Council on 22/7/2015. [Any further need for resettlement will be carried out within the limits and in accordance with the distribution set out in [relocation decision of 22/9/2015 – non-allocated places]. c) Should the number of returns exceed the numbers provided for by these commitments, this agreement will be subject to review.

The idea of a ‘1-for-1’ swap of irregular migrants for resettled Syrians has been controversial, but does not raise legal issues as such. Resettlement of people who need protection from the countries they have fled to is common in practice, but is not a binding legal obligation under international or EU law. The legality of return of people to Turkey has to be judged separately (as discussed above) from the question of whatever trade-offs might be made in return for this. However, I certainly share the view of those who find a de facto ‘trade in human misery’ morally dubious.

On point a) it is open to Member States to prioritise resettlement on whatever criteria they like. Obviously the intention here is to deter people from attempting unsafe journeys via smugglers; whether that would work depends on the numbers who might be resettled. That is addressed by point b), which refers to the remainder of the 23,000 people that the EU committed to resettle from non-EU countries last year, and possibly (note the square brackets) another 18,000 who were originally going to be relocated from Hungary, but weren’t because the Hungarian government refused. These numbers clearly fall far short of the 2 million-plus Syrians estimated to be in Turkey. Point c) only undertakes to review the deal if the original modest numbers are reached. While the Hungarian government has reportedly been objecting to the idea of resettlement, note that this country didn’t commit itself to accept any resettled refugees last year, and so would not have to take any more people under this deal.  Whether other countries decide to resettle people is up to them. The Hungarian government resents interference in its own migration decisions; it does not and should not have any say in the resettlement decisions of other States.

3)Turkey will take any necessary measures to prevent new routes for illegal migration opening up out of Turkey and into the EU.

This refers to Bulgarian concerns that people might try to cross the Black Sea as a new entry route. Of course, if people do make to Bulgarian territory or waters, the EU asylum laws would apply, as they do for Greece.

4) Once the irregular crossings between Turkey and the EU have come to an end, the Voluntary Humanitarian Admission Scheme will be activated. EU Member States will contribute on a voluntary basis to this scheme.

This scheme is set out in a Commission Recommendation from December, as discussed in detail here. Note that this would not apply until irregular crossings have stopped. This seems rather utopian – although the Commission paper talks about substantial reductions as an alternative.

5) The EU and Turkey will further speed up the disbursement of the initially allocated 3 billion euros and ensure funding of additional projects before the end of March. Furthermore, the EU will decide on additional [X] billion for the period [Y] for the Turkey Refugee Facility.

The amount of additional money from the EU and its Member States is still open for negotiation. Note that this money is not, as is widely assumed, simply handed over to Turkey for unnamed nefarious purposes; legally speaking it is only intended for projects that assist the Syrian refugee population. Today’s Commission paper lists how the money will be spent, starting with a contract to provide food aid to over 700,000 Syrians. Of course everyone should keep a beady eye on developments to ensure that the money is all spent as intended.

Conclusions

Overall this draft tries to address the two main legal concerns about the March 7 ‘deal’. It makes clear that the EU asylum laws will apply to those who reach Greece (subject to the caveat about what happens to those intercepted in Greek waters), and that Turkey will have to meet the relevant standards when taking people back. The key legal question will therefore be how these commitments are implemented in practice.

The main legal route to challenging what happens should be by asylum-seekers through the Greek courts. Those courts could refer questions to the CJEU about EU asylum law (the CJEU could fast-track its replies). Alternatively if the asylum-seekers have gone through the entire Greek court system, they could complain to the European Court of Human Rights.

What about the ‘deal’ itself? As I said at the outset, it is not binding so cannot be challenged as such. Its individual elements are binding and so their legality (or the implementation of them) can be challenged separately. On this point, it would be possible for the European Parliament or a Member State to challenge in the CJEU one particular legally binding element: the decision on the EU’s position on the EU/Turkey readmission treaty. That won’t directly affect the Greece/Turkey readmission deal, which is the key element in returns to Turkey in practice; but any ruling the CJEU might make would obviously be relevant to that latter deal by analogy.

STATEWATCH: Leaked version of the incoming EU-Turkey “Agreement”

ORIGINAL PUBLISHED ON STATEWATCH SITE

The agreement will be formulated as an EU-Turkey statement. It will take as its basis the principles set out in the statement of 7/3/2016 while adding the following elements:

1. On returns to Turkey: a) This will be a temporary and extraordinary measure which is necessary to end the human suffering and restore public order, b) Migrants arriving in the Greek islands will be duly registered and any application for asylum will be processed by the Greek authorities in accordance with Directive 2013/32/EU. Migrants not applying for asylum or whose application has been found unfounded or inadmissible in accordance with the said directive will be returned to Turkey, c) Migrants having been returned to Turkey will be protected in accordance with the international standards concerning the treatment of refugees and respecting the principle of non-refoulement.

2. On resettlement based on 1-for-l principle: a) Priority will be given to Syrians who have not previously entered the EU irregularly, b) On the EU side, resettlement under this mechanism will take place, in the first instance, by honouring the commitments taken by Member States in the conclusions of Representatives of the Governments of Member States meeting within the Council on 22/7/2015. [Any further need for resettlement will be carried out within the limits and in accordance with the distribution set out in [relocation decision of 22/9/2015 – non-allocated places]. c) Should the number of returns exceed the numbers provided for by these commitments, this agreement will be subject to review.

3. Turkey will take any necessary measures to prevent new routes for illegal migration opening up out of Turkey and into the EU.

4. Once the irregular crossings between Turkey and the EU have come to an end, the Voluntary Humanitarian Admission Scheme will be activated. EU Member States will contribute on a voluntary basis to this scheme.

5. The EU and Turkey will further speed up the disbursement of the initially allocated 3 billion euros and ensure funding of additional projects before the end of March. Furthermore, the EU will decide on additional [X] billion for the period [Y] for the Turkey Refugee Facility.

KINGDOM OF SPAIN V. COUNCIL: ANOTHER PIECE IN THE “SCHENGEN PUZZLE”

ORIGINAL PUBLISHED ON EUROPEAN LAW BLOG
By Angelo Marletta
The current European migratory crisis shows how politically sensitive the surveillance of the EU’s external borders is and the dramatic human consequences of the failures of that surveillance. On the one hand, border surveillance is essential to obtain situational awareness and to build an effective border policy. Border surveillance can indeed provide data and patterns to analyze and forecast migratory flows and to coherently plan actions to deal with them. Under EU Law, the surveillance of the External Borders is based on the Schengen acquis.

On the other, failures of surveillance can negatively impact the whole system of border management and, more concretely, the lives of migrants. Notwithstanding the relatively close distances between its shores, the Mediterranean is by far the deadliest sea border for migrants.

In Kingdom of Spain v. European Parliament and Council (C-44/14, 8 September 2015) the Grand Chamber of the Court of Justice (‘CJEU’) delivered its third judgement on Protocol 19 to the TFEU (‘Schengen Protocol’) addressing an essential element of the Schengen cooperation on border surveillance: the European Border Surveillance System – in short, EUROSUR.

The judgment offers a particularly interesting analysis of the EUROSUR system it provided and, more generally, also contains important conclusions on the development of the Schengen acquis with regard to the position of UK and Ireland.

Before addressing the specific case, however, it seems useful to give some brief explanations on the EUROSUR system and on the Schengen Protocol.

What is EUROSUR?

EUROSUR is a technological platform for the operational cooperation and the exchange of information between the Schengen Member States and FRONTEX for the surveillance of the external land and sea borders.

The system was established in 2013 by Regulation 2013/1052 (‘the Regulation’), after a long and controversial legislative process, which started in 2002 with a Communication of the European Commission, putting forward the idea of a ‘permanent process of data and information exchange and processing’. In 2006 and 2007 two feasibility studies were carried out, one by FRONTEX (the 2006 MEDSEA study) and on 2007 (BORTEC study) (for an historical overview see the 2012 study by Hayes and Vermeulen).

From a general standpoint, EUROSUR represents a prominent example of the emerging intelligence-led approach to European border management. Such approach should combine the use of intelligence at the operational/tactical level with the application, at the strategic level, of the typical methods of intelligence analysis to better understand migratory flows, routes and vulnerabilities in the system of the external borders (in this sense, see the recent Proposal on the European Border and Coast Guard, COM (2015) 671 final and its artt. 10 par. 4, 12 and 14 par. 3 that expressly refer to EUROSUR).

In this context, EUROSUR should help to improve the situational awareness and the reaction capability of the Member States’ border authorities and FRONTEX in countering illegal immigration and cross-border crime, and in protecting the lives of migrants.

Despite its legitimate objectives, the new system’s compatibility with fundamental rights has been criticized (for the concerns relating to the protection from refoulement and to data protection, see the 2015 Fundamental Rights Agency Study, pp. 60 ff.). Moreover, its actual capability to detect small vessels and to help protect migrants’ lives has been questioned (see Rijpma and Vermeulen, 2015).

Concretely, EUROSUR connects the national authorities of the Member States in a single communication network and allows them to exchange and visualize in near real time relevant information and data through graphical interfaces called ‘situational pictures’.

On top of this, FRONTEX elaborates and makes directly available to the national authorities two additional graphical interfaces (the ‘European Situational Picture’ and the ‘Common Pre-Frontier Intelligence Picture’) combining information and data received from the national authorities connected to the system.

This immediate exchange of information should allow all the connected authorities to gain better situational awareness about the events occurring at the external borders and to coordinate their reactions in a more efficient way, for instance, by conducting targeted patrols along specific border sections, by intercepting or tracking suspicious vessels or launching search and rescue missions.

Needless to say, the implementation of such a system requires the acquisition and the exchange of the largest possible set of data and information; in this perspective, the EUROSUR Regulation took into account both the importance of exchanging information with neighbouring Third Countries (art. 20 of the Regulation) and with UK and Ireland, as Member States enjoying a peculiar status in the Schengen system. EUROSUR is indeed a measure ‘building upon’ a part the Schengenacquis to which the UK and Ireland are not taking part.

In and out: UK, Ireland, the Schengen Protocol and Article 19 Regulation

The particular position of UK and Ireland in regard of the Schengen cooperation – which constitutes a special form of enhanced cooperation between EU Member States – is regulated by Artt. 4 and 5 Schengen Protocol.

The two Member States are not bound by the Schengen acquis but they participate in some specific areas thereof (for instance, police cooperation) which are currently listed in the Council Decision 2000/365/CE for the UK and Northern Ireland, and in Council Decision 2002/192/CE for Ireland.

Beyond these areas, the UK and Ireland can at any time request ‘to take part’ in further parts of the Schengen acquis, but the Council shall authorize the extension by means of a unanimous decision.

However, the surveillance of the external borders, which the EUROSUR Regulation is aimed to enhance, is an area of the Schengen acquis in which UK and Ireland are currently not taking part.

Hence, the UK and Ireland are currently not bound by the Regulation’s rules.

Nonetheless, Art. 19 of the Regulation enables Member States (but not FRONTEX) to conclude bilateral or multilateral agreements with the UK or Ireland in order to exchange with them certain limited sets of data and information relating to events and incidents occurred at the land and sea borders.

The type of data and information sharable under this agreements is clearly delineated by the provision, whose paragraph (3) further specifies that any information provided in the context of EUROSUR by FRONTEX or by a Member State which is not party to the agreement shall not be shared with UK or Ireland without the prior approval of FRONTEX or of that Member State.

Put differently, Art. 19 (3) of the Regulation puts a significant limitation on the information that can be shared by a Schengen Member State with the UK or Ireland. In particular, the information on the type, status and position of assets (naval units, planes, surveillance drones) belonging to other Member States will be in principle not shared.

The Spanish argument and the Court’s solution: balancing free riding concerns and effet utile.

Unlike the previous episodes of the Schengen Protocol saga (see the previous judgments of the Grand Chamber on FRONTEX, C-77/05, 18 December 2007 and on the Visa Information System, C-482/08, 26 October 2010), the current action was brought by the Kingdom of Spain against the above mentioned Art. 19 of the Regulation in its entirety.

According to the Spanish argument, the conclusion of agreements with the UK and Ireland would surreptitiously enable those two Member States to ‘take part’ in areas of the Schengen acquis to which their participation has not been authorized by the Council under Art. 4 Schengen Protocol. Furthermore, this could also end up in a fragmentation of the EUROSUR system.

Nevertheless, the Court rejected the Spanish claim focusing on the distinction between the participation of the UK and Ireland (‘taking part’) in the sense of Art. 4 Schengen Protocol on the one hand, and on the other the establishment of forms of ‘limited cooperation’ with the UK and Ireland in areas of the acquis to which the latter have not yet been admitted.

According to the Court, such forms of ‘limited cooperation’ should be considered outside the scope of Art. 4 and could be allowed under two conditions.

First, the cooperation must be by its very nature limited; a limited cooperation agreement cannot grant to the UK and Ireland rights ‘comparable to those of the other Member States’ (§ 55). In Art. 19 Regulation, the European legislature included quite clear limitations: the UK or Ireland will receive only limited sets of information and data from the Member State participating in the agreement. More importantly, they will neither have access to the European pictures, nor receive information or data provided by other Member States (unless those Member States would have expressly consented). In other terms, Art. 19 Regulation will not allow the UK or Ireland to free-ride on the EUROSUR system.

As for the second condition, the CJEU specified that the establishment of such forms of ‘limited cooperation’ shall serve ‘the full implementation of the objectives of the Schengen acquis’ (§ 54).

Yet, having regard to the EUROSUR Regulation, the limited exchange of data and information with the UK and Ireland may contribute to increase the level of situational awareness and to improve the effectiveness of the surveillance at the external borders.

Information and data conveyed from those non-Schengen Member States could indeed contribute to close gaps and avoid ‘blind spots’ in the surveillance system (for Instance, with regard to the maritime border sections alongside Gibraltar).

Therefore, contrary to the Spanish plea, the Court found that the agreements based on Art. 19 Regulation, if anything, would help reduce the fragmentation of the EUROSUR system.

 Conclusion: more flexibility to negotiate new, more effective Schengen-instruments?

The Court’s judgment contributes to further clarifying the interpretation of the Schengen Protocol, recognizing – after the two previous judgements delivered against the UK – an important element of flexibility in the system.

On the one hand, considering both the tensions that currently affect the Schengen system as a whole and the tensed relationship between the EU and UK, the possibility of resorting to limited forms of cooperation with the UK and Ireland could represent a useful additional tool for negotiating new and more effective measures building upon the Schengen acquis, especially with regard to the management of the external borders. Interesting to notice, the Commission Juncker seems to have promptly seized the opportunity offered by the Court’s judgement (see in particular artt. 43 par. 2 and 50 of the new Proposal on the European Border and Coast Guard, COM (2015) 671 final).

On the other hand, the caveats laid down by the Court of Justice should preserve the philosophy underlying the Schengen Protocol and its ratio to incentivize the largest possible acceptance of the Schengen acquis by UK and Ireland. These two Member States, indeed, will still need to subscribe the respective part of the Schengen acquis in order to access to the core features of the EUROSUR system (or any other Schengen-measure); but, meanwhile, the limited benefits coming from the daily practice of ‘limited cooperation’” could help to make more attractive the full subscription of the measure and eventually overcome the reluctance of UK and Ireland to fully participate in the Schengen acquis.

– See more at: http://europeanlawblog.eu/?p=3128#sthash.DE8RGhHD.dpuf

VERFASSUNGSBLOG Taking refugee rights seriously: A reply to Professor Hailbronner

ORIGINAL PUBLISHED HERE

by 

Reactions to the proposed “refugee swap” between the EU and Turkey have been predictably absolutist.

On the one hand, most advocates have opposed the draft arrangement, asserting some combination of the right of refugees to be protected where they choose and/or that a protection swap would clearly breach the ECHR’s prohibition of “collective expulsion” of aliens. On the other hand, Professor Hailbronner argues against any right of refugees to make their own decisions about how to access protection, believes that refugees may be penalized if arriving in the EU “without the necessary documents,” suggests that it does not matter that Turkey is not relevantly a party to the Refugee Convention, and confidently asserts that there is no basis to see the prohibition of “collective expulsion” as engaged here.

As usual, the truth is somewhere in the middle.

I think Hailbronner is correct to raise hard questions about whether a refugee swap would necessarily contravene Art. 4 of Protocol 4 of the ECHR. As I noted in my initial commentary here, the caselaw of the Court – while speaking in quite emphatic terms about the importance of individualized assessment – has not yet grappled with an honest regime the goal of which was to maximize protection. While the proverbial devil is of course in the details, it is at least possible that the proposed swap might be a means of providing asylum in the EU based on relative vulnerability and urgency of needs, rather than simply on the basis of who has the money for a smuggler and is prepared to take the risk of arriving by sea. And if the scrutiny of rights protection in Turkey is (as I believe it must be) part of the deal, then it could also be a means of enhancing the protection of the millions of refugees already in Turkey. In this context – and assuming some scrutiny of particular circumstances prior to removal – it is not clear to me that the Court would reach the same results as it did on the clearly deterrent-oriented facts of Hirsi and Klaifa. Indeed, it is not clear to me that the Court should reach that result, given the critical need for refugee responsibility-sharing if the global refugee regime is to survive.

But where I believe Hailbronner errs is with regard to the Refugee Convention’s requirements for legality. True, there is no obligation affirmatively “to assist” a refugee to reach an asylum state’s borders. But apart from the much maligned decision of the US Supreme Court in Sale, neither is there any authority for NATO or any particular state to take action to stop refugees from reaching whatever country they can get to in order to engage the protection system. Not only does the duty of non-refoulement apply wherever a state exercises jurisdiction (Hailbronner’s “quasi-territorial jurisdiction” constraint is confusing or wrong or both), but the duty not to penalize refugees arriving without prior authorization (Art. 31) has not been interpreted by senior courts to require an immediate, non-stop journey from place of initial risk to the asylum country, as Hailbronner seems to suggest.

The core issue in the proposed refugee swap is, however, what protection is on offer in Turkey for those who would be sent there. I argued that removals would only be lawful under the Refugee Convention if three criteria are met: (1) Turkey must have obligations under the Refugee Convention; (2) Turkey must accurately assess (or acquiesce in) the refugee status of those to be returned; and (3) Turkey must in fact honor the Convention rights of the refugees who are sent there.

Professor Hailbronner does not contest the second of my proposed requirements. He seems also to agree with my third point, saying that “Turkey must meet in substance the material standards of the Convention” – though he frighteningly suggests elsewhere that “[t]he only individual right is the right not to be refouled…” with no recognition of the critical role of Arts. 2-34. But the nub of his critique is that if practice on the ground in Turkey is good enough, the fact that Turkey presently has no refugee obligations towards non-European refugees (given its geographical limitation) is irrelevant.

Hailbronner justifies this position by reference to Art. 38 of theProcedures Directive which is admittedly (and in my view, unfortunately) drafted in ambiguous terms. But as the CJEU has been at pains to point out, regional EU refugee norms must be interpreted in consonance with the requirements of international refugee law – not the other way round (see eg. HN v. Ireland, at [27]).

The Preamble to the Qualification Directive (in line with UNHCR Handbook para. 28) correctly affirms that refugee status recognition is a purely declaratory act – it does not make a person a refugee, but merely affirms what already is. It follows that under the Refugee Convention’s system of incremental attachment of rights, Syrian and other refugees who would be removed to Turkey are already provisional rights-holders of a significant bundle of rights at international law. If they cannot access an effective remedy for a threat to those accrued internationally guaranteed rights in Turkey, the EU will have engaged in unlawful rights-stripping by forcing them to Turkey – whatever vague promises Turkey may (be forced to) make about acting properly. As the Chief Justice of Australia made clear in the context of the challenge to Australian efforts to force refugees to go to Malaysia – like Turkey, a non-party state – “[t]he use of the terms ‘provides access… to effective procedures,’ ‘protection,’ and ‘relevant human rights standards’ are all indicative of enduring legal frameworks” (M70/2011 v. MIC, [2011] HCA 32 (Aus. HC, Aug. 31, 2011), at [66], per French C.J.).

In addition, as Michelle Foster and I explain in The Law of Refugee Status (at p.35 ff), a non-party state is under no duty to deliver to arriving refugees the more sophisticated rights due them under the Convention once they are lawfully staying or durably residing there (eg. the right to work) – inchoate rights that would have accrued under the Refugee Convention’s default mechanism had they not been involuntarily transferred. This fundamentally undermines the Refugee Convention’s commitment to the enfranchisement of refugees in their countries of asylum via the rights regime in Arts. 2-34.

Is it possible that a non-party state could both provide reliable access to a legal mechanism to enforce accrued rights and also reliably guarantee to grant the additional rights due refugees over time? In theory, yes. But the fact that Turkey has steadfastly refused to withdraw its anachronistic (and arguably discriminatory) position that only European refugees are international rights holders on its territory is surely reason for skepticism in this case.