Leda Bargiotti

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

EDC

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

EDC

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

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

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

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

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

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

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

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

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

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

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

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

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Practical Cooperation in judicial matters: the Council’s priorities for the next 18 months

Regarding the horizontal issues in the field of justice, the Spanish, Belgium, and Hungarian Presidencies will prioritise the protection and promotion of fundamental rights, the protection of personal data, E-Justice and the training of judges, prosecutors and judicial staff.

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Immigration, asylum and borders: the priorities for the next 18 months

Interesting elements emerge on the implementation of the Stockholm Programme (2010-2014) from the working document of the Council presidency. It is necessary, as it is often the case for official documents, to interpret the silences as well as some cryptic or general information. It therefore follows a summary of the main proposals with some complementary explanatory notes.

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Internal security in the EU: the priorities of the next 18 months

Following the previous note on borders, immigration and asylum we wil now proceed with the priorities announced by the Spanish presidency in the field of internal security of the EU. These come from the working document of the Spanish, Belgium and Hungarian Council Presidencies which will follow one after the other in the next 18 months. As usual, additional notes will provide a comprehensive overview of the different topics.

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Counter terrorism – between watchlist and no-flight list

It was only recently, on 9 December during a hearing in front of the Internal Security Commission of the Senate, that the US administration was reassuring senators of the efficiency of the system of prevention of terrorist attacks, specifically concerning air transportation.

From the hearing emerged that enormous progresses have been made since the constitution of the Counter Terrorism Centre of (CST) in 2003 since information coming from different disparate resources (from intelligence, such as CIA and National Security Agency, to security, such as FBI, , the Homeland Security Department and the State Department) have all been collected in one single watch list.

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Right to interpretation and translation in criminal proceedings: the legislative works restart

The necessity to set up common minimum standards as regard to procedural rights applying in criminal proceedings throughout the European Union was already clear for the European Parliament in 2001 when, following the terrorist attacks of 9/11, the European Union adopted a series of measures such as the European Arrest Warrant and the Framework Decision on terrorism.

However, nobody did anything in this field for several years because the European Commission as well as the Member States believed that national legislations were sufficient.

This was everything but self-evident. Indeed, the jurisprudence of the European Court of Human rights in Strasbourg as well as the increasing number of refusals to apply the European Arrest Warrant issued by a judge of another Member State, especially after the EU enlargement to 27 Member States in 2004 suggested quite the opposite.

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Communication problems between EU Member States concerning immigration and asylum

The European Commission has recently published a Communication summarising the most relevant information in the field of migration and asylum which shall be transmitted by the Member States on the basis of the European Council Decision of 2006.

This Decision was adopted following the self-evident remark that national measures in the areas of immigration and asylum are likely to have an impact on other Member States given the absence of border checks in the Schengen area, the close economic and social relations between Member States and the development of common visa, immigration and asylum policies.

Hence, the systematic exchange of information seemed an obvious necessity in order to increase the Member States’ reciprocal understanding of these policies and improve their coordination, influence the quality of the EU legislation and increase mutual trust.

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