Author: Mohini

The European Arrest Warrant and the EU area of justice

The European Arrest Warrant has come under much discussion in the UK media following the arrest of Julien Assange, the founder of Wikileaks. Main arguments against the EAW surround the topic of the quantity of EAW’s being issued to the UK in comparison to the number received by other Members States and the apparent lack of judicial authority to decide on the proportionality of the crime.

The European Arrest Warrant was established after the “Tampere European Council of 15-16 October 1999 called on Member States to make the principle of mutual recognition the cornerstone of a true European law-enforcement area.” The EAW replaced the extradition system that was in place and required that “each national judicial authority” recognised requests for the “surrender of a person made by the judicial authority of another Member State” with minimum formalities.

However, Member States are still able to form bilateral or multilateral agreements with other Member States in order to simply or facilitate the process further.

There are also judicial safeguards to EAW. Each Member State may refuse to execute a European arrest warrant if:

• final judgment has already been passed by a Member State upon the requested person in respect of the same offence (ne bis in idem principle);

• the offence is covered by an amnesty in the executing Member State;

• the person concerned may not be held criminally responsible by the executing State owing to his/her age.

In relation to the current case of Julian Assange, refusal to extradite him could take place on the grounds that the motive for the EAW is purely a political one.

The UK has refused extradition in the past on these grounds. These examples are not exhaustive of the qualifying grounds to refuse extradition under an EAW, however, in each case the grounds for refusal have to be given.

The European Arrest Warrant allows for the enhanced ability to pursue justice in the European Union. The EU has progressively decreased its internal borders and facilitated the free movement of European citizens. However it is simultaneously easier for criminals to operate across the Member States . Therefore, in order to give the criminal and law agencies sufficient power, their actions must be coordinated across the EU.

In order to better tackle this challenge of international crime, the EU is progressing toward a single area of justice.

The Amsterdam Treaty officially states that the creation of a common area of freedom, security and justice is an aim of the EU. EU Member States have agreed to “approximate the definition of offences and the level of sanctions for certain type of offences” and ensure “mutual recognition of decisions taken by national judges” . These actions are enabling the EU to be perceived as a specific partner on judicial cooperation in the international scene.

“While developing its activities in those directions, the EU has carefully insisted on ensuring a high protection of individual’s rights which characterise highly demanding democracies. ”

The European Arrest Warrant, a step in the direction of an EU area of justice, has recently been discussed widely in the UK media and at least citizens are becoming aware of the topic. However there are severe, basic misunderstandings in the reports. What is needed now is journalism that is more informed. Criticism and accountability is needed, however, real accountability can only be achieved when the citizens are given the right information to truly understand the EAW. The information is already there; it needs to be coherently and accurately communicated.

Seasonal Workers – EU institutions state of play

The European Parliament is due to begin discussions on “Seasonal employment: conditions of entry and residence of third-country nationals“.

This follows the European Commission’s proposal on 13 July 2010 for a directive on seasonal employment which has the aim of “establishing a common procedure for entry and residence in the EU and defines the rights of seasonal workers from third-countries” .

According to the Commission the proposed directive concerns non-EU citizens coming to an EU Member State for the purposes of seasonal employment on EU territory. The work will be carried out during one or more fixed-term work contracts concluded directly between the non-EU worker and the employer established in a Member State. The proposal introduces a special procedure for the entry and residence of third-country seasonal workers and “sets out fair and transparent rules for entry and residence while, at the same time, it provides for incentives and safeguards to prevent a temporary stay from becoming permanent“. 

The only other existing provision in this area is the 1994 Council Resolution ‘on limitations on admission of third country nationals to the territory of the Member States for employment’.

Within the Council, Ministers have held a first exchange of views which resulted in “several ministers recalling the right of Member States to determine the number of third-country nationals to be admitted to their territories.  In this context, they pointed out that the impact on national labour markets should be taken into account. Several ministers also highlighted the need for greater flexibility, for example with reference to the proposed duration of stay or the time limits in which applicants must be given a decision. In the case of seasonal employment, a number of member states mentioned that a choice should be given on whether accepted third-country nationals would receive residence permits, as proposed by the Commission, or long-term visas.

Another issue highlighted by several ministers was the question whether the rights accorded to third-country nationals should be equivalent to those enjoyed by nationals of the host member states, in particular with regard to social security benefits. Other delegations questioned whether the proposal on seasonal workers was in line with the principle of subsidiarity.” (Quote taken from: http://www.europarl.europa.eu/oeil/file.jsp?id=5865532)

The Common European Asylum System: still a long way to go.

In 2008, EU Justice Commissioner Jacques Barrot stated that the “27-nation bloc should provide “higher standards of protection” and “a more equal level playing field” with respect to asylum procedures. This high level reinforcement of the need for harmonisation has occurred throughout the years at the highest political levels. In fact, it was the EU Heads of State and Government who called for the establishment of a Common European Asylum System (CEAS) at the Tampere Summit in 1999.

Since then, there has been steady progress through Tampere and the Hague programme (2004), which have in turn been complimented by initiatives on practical cooperation and solidarity as well as the external dimension of CEAS. More recently, the Stockholm Programme (2009) has provided another opportunity for Member States to yet again declare their commitment to CEAS by 2012.

CEAS will include two crucial elements. Firstly, by joining the system, Member States will accept a higher standard of harmonisation across the EU with respect to the adherence and proper application of the human right to seek asylum. In order to realise this, amendments are needed to three key EU asylum directives, namely the directive dealing with reception conditions, the directive which deals with asylum procedures and finally amendments would be needed to the directive dealing with “standards for qualification as refugees or persons needing international protection”. 

Secondly, through CEAS, Members States will also ensure that certain procedures are consistently implemented which will have the aim of eliminating the chances of abuse of the system, no matter where the request for asylum is submitted in the European Union. This can be achieved, for example, through the recently established Common Asylum Support Office. As stated by the Swedish Minister for Migration, Tobias Billström, the Support Office could “contribute to the harmonization process” but also “facilitate the work of the national authorities” and “play a vital role in enhancing capacity building in both the short and the long run”.

The overall attitude and political commitments made are positive. The most recent results of this positive attitude would be the entry into force of the Lisbon Treaty and the adoption of the Stockholm Programme by the European Council in December 2009, which established the political priorities in the area of freedom security and justice for the period 2010 to 2014.

The Lisbon Treaty provides a mandate for the European Union to have a fully fledged policy in this domain by establishing a common European policy on asylum, which is to go further than the current cooperation between Member States. Furthermore, the Treaty also establishes subsidiary protection and temporary protection when needed (and when the conditions for granting asylum are not met), as well as offering appropriate status to any third country national not requiring international protection. These indications in the Stockholm Programme foresee a better quality of the asylum decision-making process across the Member States in order to close the protection gap in Europe.

However, to adopt these measures a qualified majority of the Member States is needed and the continued reluctance of some Member States cannot be ignored, notably of the states concerned about the economic impact of these reforms.

These concerns have to be taken into account and policy solutions found in order to ensure that the integrity of CEAS is not jeopardised, such as the potential situation of various Member States continuing, in practice, to implement different rules to asylum seekers though a common standard has been agreed upon.

One, albeit pragmatic strategy, could be to accept the inevitable result that each best practice will not be followed and therefore elevate some principles and make them sacred. Some of these principles could include the Commission’s proposals on detention. However, it is first necessary to establish that it is to be principles that are elevated and not a detailed list, as is currently trying to be agreed upon and has reached deadlock.

In order to complete the ongoing construction of the Common European Asylum System, six legislative proposals have to be negotiated with the European Parliament.

These proposals are:

– the Long Term Residents Directive (rapporteur Claude Moraes),

– the Dublin II Regulation (rapporteur Cecilia Wikström),

– the Eurodac Regulation (rapporteur Monica Macovei),

– the Reception Conditions (rapporteur Antonio Masip Hidalgo),

– the Qualification Directive (rapporteur Jean Lambert),

– and finally the Asylum Procedures Directive (rapporteur Sylvie Guillaume). 

Focusing on the Long Term Residents Directive, in June 2007, the Commission proposed the extension of the scope of the Directive to include beneficiaries of international protection. At the time, there was no unanimity in Council; however, with the entry into force of the Treaty of Lisbon, unanimity is no longer required for proposals dealing with legal migration and it could therefore be adopted by the Council at qualified majority.

With regards to Dublin II and the Eurodac Regulations, recast proposals were presented in December 2008 with the aim of increasing efficiency of asylum cases and offering better guarantees and legal protection to asylum seekers. In May 2009, the European Parliament proposed various amendments to these proposals in ‘first reading’. Discussions are now ongoing in Council, and though they advanced considerably, there are still serious issues that have to be resolved before the proposals can come back to the Parliament for a second reading and ultimately the adoption of the final text. The blocking issues are the definition of family members, provisions on detention and finally the necessity of a mechanism for the temporary suspension of transfers of asylum seekers to the first country of entry in the EU territory. The Belgian Council Presidency believes that the inclusion of a solidarity mechanism in the Dublin Regulation for Member States that are committed to fully implementing the EU asylum acquis, will be needed.

Whilst for Eurodac (the system collecting asylum seekers fingerprints), the blocking issue is that of the access to this data by law enforcement services. As Eurodac is not a security related measure, such a move will modify the original purpose and have an impact on data protection. This is an issue that is incredibly controversial as the European Parliament could consider it a dangerous precedent which provides law enforcement services access to systems that have been conceived for other purposes.

In order to resolve the various issues that are present in all proposals and to enable the conclusion of the negotiations, the institutions have taken various practical steps.

Recently for example, the LIBE Committee of the European Parliament set up an internal working group on asylum made up of the rapporteurs and shadow rapporteurs involved in the asylum dossiers to ensure a common strategy to treat the asylum “package”.

Furthermore, the Council Presidency intends to preserve a politically coherent approach. In fact at the last JHA informal Council meeting on 15 and 16 July this year, the Belgian Council Presidency showed a real awareness of the urgent need to advance rapidly on the legislative proposals in order for CEAS to be established by 2012, a deadline set by the Stockholm Programme (though it is becoming increasingly evident that such a deadline looks too ambitious). Taking into consideration the current political majorities between Member States to date, the Presidency will firstly focus on some pieces of the “package” such as the Long-Term Directive, Dublin II, Eurodac and the Qualification Directive as these proposals that can be viably achieved in the short-term.

Regrettably, the “reception conditions” and “asylum procedures” draft directives are seen as long-term issues with no solution foreseen in the short-term. This is due to the challenge of striking a balance between high protection standards on the one hand and the “efficiency” of the asylum system on the other; no small issue to contend with and certainly not one to which a solution is foreseen in the short-term.

Regardless of the timetable however, progress needs to be made in all proposals.

An opportunity to advance on the proposals will present itself at the Ministerial Asylum Conference on “Quality and Efficiency in the Asylum Process on 13-14 September”. Here contributions will be made by a large range of stakeholders, including the EU institutions and the Member States which should work together in order to resolve the issues that are blocking many of the proposals and be consistent with the engagements taken with the Lisbon Treaty and the Stockholm Programme.

The overall aim of a Common European Asylum System needs to be achieved urgently. Asylum seekers should be treated in an equal and fair way across all the EU Member States and not risk losing their rights depending on which Member State they so happen to land in. Furthermore, EU Member States need to work together to ensure that the system itself is not open to abuse.

Needless to say, the effects of harmonisation of this kind do not just stop at the issue of asylum, rather, this level of harmonisation feeds into the bigger issue of international relations and the image of the EU. If the European Union wishes to retain its status as the “protector” of human rights, as stated by Mr. António Guterres, the UN Commissioner for Refugees, then CEAS is an opportunity to strengthen the realisation of human rights, achieve a truly common European standard in the framework of the Geneva Convention and it can also contribute to the EU as a whole becoming a more harmonised and credible international player, rather than the clumsy one that it currently is.

Brandeis in Italy: The Privacy Issues in the Google Video Case

Reports of the recent decision by an Italian court to issue suspended sentences against three Google exes for posting a video of a young person with downs syndrome being taunted has sparked a flurry of First Amendment concern. The opinion of reporters, at least in the U.S., has been nearly unanimous — “What were they thinking??” “This will kill the Internet.” “The Italians just don’t get it.”

There is no published opinion yet, so this is very much a first impression based on a quick review of the law in the case, but I was struck by the similarity of the Italian decision with the birth of the right of privacy in the United States.

Continue reading “Brandeis in Italy: The Privacy Issues in the Google Video Case”

On the BVG ruling on Data Retention: “So lange” – here it goes again…

As mentioned a couple of weeks ago in the blog (10 January 2010 – Directive on data retention: now the floor goes to the German Constitutional Court) the German Constitutional Court was preparing to make a decision about the German internal application of the controversial Data Retention Directive (2006/24/EC), demanding telecommunication data retention from 6 months till 2 years. Some historical background is provided in the above mentioned blog. On March 2 the decision has arrived (1 BvR 256/08 , 1 BvR 263/08 , 1 BvR 586/08). And what a decision it is. It is of the same work as the famous decision in Marbury v. Madison presided over by John Marshall. The German Federal Constitutional Court (Bundesverfassungsgericht) avoided a direct conflict with the ECJ but showed once again that it will take its prerogatives very seriously regarding the protection of human rights and annulled the German provisions applying the Directive.

Continue reading “On the BVG ruling on Data Retention: “So lange” – here it goes again…”

Cutting bureaucracy: Simplifying applications of third-country nationals

On the 22 February the LIBE Committee of the European Parliament will hold an orientation vote on the ‘Directive of the European Parliament and of the Council on a single application procedure for a single permit for third-country nationals to reside and work in the territory of a Member State and on a common set of rights for third-country workers legally residing in a Member State.’

The purpose of this directive is to allow for a single application and a single permit for third-country nationals who wish to reside and work in an EU Member State. The aim of the directive is also to allow for the third-country nationals to have equal rights to the nationals of the Member State they will subsequently reside in if given a permit. However, this directive does not affect the competence of the Member States to decide on the admission of third-country nationals to their labour markets.

Continue reading “Cutting bureaucracy: Simplifying applications of third-country nationals”

English legal system: First juryless trial in 350 years

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

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

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

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

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

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

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

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

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

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

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

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

[5] Ibidem.