Progresses made in the field of Freedom of movement within the European Union

The Council exchanged views on the Commission’s guidelines for better transposition and application of Directive 2004/38/EC on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States.

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It’s a long way to… Lisbon

Ten years after the first European Council in Tampere it is interesting to read again those declarations with which Heads of State and Government defined the ambitions of the European Union in this area. 

“[…]The enjoyment of freedom requires a genuine area of justice, where people can approach courts and authorities in any Member State as easily as in their own. Criminals must find no ways of exploiting differences in the judicial systems of Member States. Judgements and decisions should be respected and enforced throughout the Union, while safeguarding the basic legal certainty of people and economic operators. Better compatibility and more convergence between the legal systems of Member States must be achieved.

People have the right to expect the Union to address the threat to their freedom and legal rights posed by serious crime. To counter these threats a common effort is needed to prevent and fight crime and criminal organisations throughout the Union. The joint mobilisation of police and judicial resources is needed to guarantee that there is no hiding place for criminals or the proceeds of crime within the Union.

The area of freedom, security and justice should be based on the principles of transparency and democratic control. We must develop an open dialogue with civil society on the aims and principles of this area in order to strengthen citizens’ acceptance and support. In order to maintain confidence in authorities, common standards on the integrity of authorities should be developed[…]”. 

There is no doubt that these aspirations are a long way from being implemented, but it would not be fair to underestimate the progress, although not equal, made by the European Union in a relatively short timeframe. But what is the most important aspect is that despite the obvious difficulties, the European Union has reinstated its commitment through the years and that Member States are progressively deleting those reserves that characterised the starting process of the ALSJ. Further proof of this statement is art. 68 of the Treaty on the Functioning of the European Union which, depending on the Irish referendum, could enter into force together with the European Charter on Fundamental Rights in January. 

It is interesting to point out that if, during the first phase of the ALSJ, the greatest worry concerns the creation of a more trustful frame among Member States by developing mutual trust, building areas and instruments to work together during the phase which starts with the Treaty of Lisbon, European policies put individual rights at the centre. 

Against such a vast, complex and with uncertain borders domains, this rubric shall make a selection which will be inevitably arbitrary but that should at least provide information on what the Institutions considered relevant or controversial.

Sometimes information, documents will be accompanied by brief notes or abstracts from press releases or articles that have included a specific news.

EDC

EU and U.S.A. Agreements on Extradition and Mutual Legal Assistance

The Agreements between the European Union (EU) and the United States of America (USA) on Extradition and Mutual Legal Assistance for criminal matters will probably enter into force at the beginning of 2010  since they have now been ratified by all 27 member states and the US Senate (Greece being the last to sign, on 24 June). The Council Decision will be adopted in the next days once the formal exchange of the bilateral instruments of ratification is completed during the meeting of the ministerial troika with the American administration in Washington on 27 October.

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“Road map”’s overview on procedural guarantees and other proposals in the field of judicial cooperation in criminal matters sent by the Swedish Presidency

The Roadmap submitted by the Swedish Presidency “With a view to fostering protection of suspected and accused persons in criminal proceedings” (the Roadmap) on 1 July 2009 has the objective of reinforcing some fundamental rights which should be recognised to individuals involved in criminal proceedings, being them defendant, victims or witnesses. 

The European legislator has already introduced measures which recognise those rights such as:

 1       The framework decision of 15 March 2001of the council of the European Union concerning the position of the victim during criminal proceedings (act 2001),

2       The Framework decision of 13 June 2002 on European Arrest Warrant (act 2002),

3       The Framework decision of 18 December 2008 on European Arrest Warrant related to the research of proofs to be used during criminal proceedings (act 2008).

The Swedish presidency suggests some measures to reinforce the judicial proceedings, in relation to:

A) translation and interpretation;

B) information related to rights and charges;

C) legal assistance and the right to have a lawyer;

D) communication to relatives, employees and consular authorities;

E) special protection to vulnerable individuals;

F) green book on the right of reassessment of the reasons for detention.

Leda Bargiotti

The European Council JHA informal debate of 16/17 July on the Stockholm Programme and Member States’ national contributions

An informal meeting of Justice and Home Affairs ministers was held on 15-17 July in Stockholm with the aim to delineate the political orientation of the five years programme that the European Union will negotiate during the Swedish Presidency in relation to the area of Justice and Home Affairs, which will result in the Stockholm Programme. 

The Presidency focuses on putting the citizen at the centre of its agenda and specifically it has been discussed of: 

1. Security and Protection of Freedoms of European citizens

Europe’s home affairs ministers delegations discussed issues including how to increase the effectiveness of cooperation between EU countries in the fight against cross-border crime, while at the same time strengthening the rights of the individual by implementing measures to increase mutual trust between different legal systems and reinforce data protection. Furthermore, protection of children rights has been underlined has a priority of the European Union.

 2. Immigration and Asylum

The debate focused on the necessity to strengthen practical cooperation between Member States fully respecting human rights. To this end differences related to the concession of asylum status between Member States should be eliminated, in particular it must be ensured that asylum seekers, as far as possible, receive the same treatment and have their applications assessed according to the same criteria, irrespective of which Member State they arrive. This goal will be reached through a further development of the Common European Asylum System. The duty of offering protection to those escaping from persecutions and those that need International protection has been also recalled.

Equilibrium between an efficient management of borders and the protection of human rights shall be respected.  Solidarity and the division of responsibility both among Member States and between the EU and countries outside the Union must be consolidated through the European Pact on Immigration and Asylum.

The Presidency recalls for a global approach to migration where the fight against illegal immigration goes hands to hands with the full respect of human rights.

3. Justice

Delegations have highlighted the need to strike the right balance between law enforcement measures and measures to safeguard individual rights and the rule of law.  To reach the rights balance among these aspects, the Presidency proposes a number of measures and initiatives, such as: EU accession to the European Convention of Human Rights; protection of the rights of victims of crime; protection of personal data and privacy.

In addition, the Presidency reiterate the necessity of implementing measures to provide real access to justice for citizens, such as: facilitate the Exchange of information among judicial authorities of the Member States; an effective judicial and police cooperation; the guarantee of an equal access to information during judicial procedures. 

The Presidency continues consultations, particularly with the European Parliament. Issues related to the Stockholm Programme will be examined by the European Parliament and the National parliaments at the COSAC meeting on 4-5 October and during the mixed parliamentary meeting (mixed committee) on 9-10 November.

Leda Bargiotti