2. Values & principles of the European Union – Page 14 – European Area of Freedom Security & Justice

VERFASSUNGSBLOG : Europe’s Justice Deficit

SEE ORIGINAL CONTRIBUTIONS HERE

The EU affects the lives of many people in ways they perceive as profoundly unjust. Lives are dramatically affected by the policies of austerity, widely understood to be EU-imposed. With the Court of Justice appearing to stand for its own authority and EU autonomy at any cost; with migrants attempting to reach fortress Europe and drowning en masse as the EU cuts back its rescue services; and with economic inequalities in the Member States reaching new heights, could it be that there is a justice deficit in Europe, exacerbated by the European Union? There is an urgent need to address the question of justice as an EU objective openly and without reservation, and not to permit nationalists and Eurosceptics to monopolize this debate. On the occasion of the newly launched book “Europe’s Justice Deficit?”, co-edited by EU constitutional law scholars Dimitry Kochenov, Gráinne de Búrca and Andrew Williams, we put this question up for debate.

INTEGRATION REQUIREMENTS FOR THIRD-COUNTRY NATIONALS: THE FIRST CJEU RULING

ORIGINAL PUBISHED ON EU LAW ANALYSIS

by Steve Peers

When can a Member State require immigrants to undertake integration courses? The Court of Justice dealt squarely with this issue for the first time in today’s judgment in P and S, which concerned the application of the EU’s Directive on the long-term residence of non-EU citizens. (The UK, Ireland and Denmark have an opt-out from this law).

The judgment has a broader relevance, since the EU Directive on family reunion for non-EU citizens also provides for Member States to adopt integration conditions. On the other hand, EU free movement law does not provide for Member States to impose such conditions on EU citizens or their family members. As for Turkish nationals, the EU-Turkey association agreement does not provide for such a condition either, but Member States may impose one subject to a standstill rule in most cases (see last year’s Dogan judgment, discussed here).

Today’s judgment turns on the wording of the long-term residence Directive, which states that Member States ‘may require third-country nationals to comply with integration conditions, in accordance with national law’. The case concerned non-EU citizens who already had long-term resident status under the Directive, but Dutch law still requires them to take civic integration courses and penalises them with a fine every time they fail. A later change to Dutch law requires non-EU citizens to pass these courses before they get long-term residence status, but that later version of the law was not directly at issue in this case.

Judgment

According to the Court, the requirement to take integration courses does not as such infringe the Directive, first and foremost because the Directive clearly permits an integration condition to be imposed before obtaining long-term resident status. Next, the Court ruled that the requirement did not breach the equal treatment rule set out in the Directive, since Dutch nationals could be presumed to have knowledge of Dutch society and the Dutch language, whereas non-EU citizens could not.

However, that was not the end of the Court’s analysis. It then focussed on whether the national rules undercut the effectiveness of the Directive. The Directive had as its main aim the integration of non-EU citizens, and the Court stated that learning the national language and about the host State could facilitate communication with Dutch citizens, and ‘encourages interaction and the development of social relations’. Acquiring a knowledge of Dutch also ‘makes it less difficult’ to find work and take up training courses. The integration requirement therefore contributed to the aims of the Directive.

The Court went on to say that there were some limits upon what Member States can do, as regards ‘the level of knowledge required to pass the civic integration examination’, ‘accessibility of the courses and the material necessary to prepare’ for the exams, the level of registration fees and ‘specific individual circumstances, such as age, illiteracy or level of education’. But the Court seemed most concerned about the amount of the fines, which were quite high and would be imposed for every failure, or even where the non-EU citizen had not sat the exam within the required time. The fines were also imposed on top of the high fees to sit the exam. So in principle this aspect of the system infringed EU law, although it was left to the national court to apply the Court’s ruling in practice. Finally, the Court stated that it was irrelevant whether the persons concerned already had long-term resident status, since (in this case) it was not a condition for getting or retaining that status.

Comments

The Court’s ruling makes clear that Member States can in principle impose integration requirements for long-term residence status, subject to the principle of effectiveness. The main feature of that principle in this case was the fees for failing (or not sitting) the exam, in conjunction with the fees for sitting the exam. Obviously the Dutch government is now obliged to lower those fees, and other Member States’ rules could be challenged on the same basis. The ruling is obviously particularly relevant to less wealthy migrants who would struggle to pay the fines and test fees several times over.

Although the Court did not rule in any detail on the other limits which EU law imposes upon national integration requirements, such limits certainly exist, as regards the level of knowledge needed to pass, the accessibility of tests and materials, and ‘specific individual circumstances’. It is not clear from the judgment exactly how Member States are obliged to take account of such circumstances – whether by means of a complete exemption from the test or a different version of it. But it should be noted that the list of specific circumstances mentioned by the Court is not exhaustive (‘such as’).

While the judgment clearly implies that Member States may even withhold long-term residence status if an integration test is not passed, the Court did not rule on that issue as such. So it remains open to argue that there may be stricter limits or other factors to consider when Member States impose an integration condition to acquire that status.

Nor did the Court rule on whether the failure to meet an integration condition could be a ground to lose long-term resident status. The Directive does not list this as one of the possible grounds for loss of that status, and it should follow from the objective of the Directive that the list of grounds which could lead to such a loss of status is exhaustive. This also follows from the structure of the Directive: if failure of an integration test could lead to loss of status, why did the drafters of the Directive only mention integration tests in the clause dealing with acquisition of that status?

Today’s judgment is only the first in a line of cases upcoming concerning integration conditions (the next batch of cases concern the parallel clause in the family reunion Directive). As a starting point, the Court has struck a good balance between ensuring that immigrants fit into society and the need to prevent integration tests forming a disguised means of excluding migrants from ever really fitting in despite their genuine efforts.

The US legal system on data protection in the field of law enforcement. Safeguards, rights and remedies for EU citizens

EXECUTIVE SUMMARY OF STUDY FOR THE EUROPEAN PARLIAMENT LIBE COMMITTEE PUBLISHED HERE

by Francesca BIGNAMI (*)

In US law, there are a number of different legal sources that govern data protection in the field of federal law enforcement. This study first considers the two most important sources of data protection law^the Fourth Amendment to the US Constitution and the Privacy Act of 1974. It then turns to the most significant methods of information collection that are available for ordinary criminal investigations and national security investigations and the data protection guarantees set down under the laws authorizing and regulating such information collection.

The Fourth Amendment prohibits “unreasonable searches and seizures” by the government. Reasonableness is established if the search or seizure is conducted pursuant to a valid warrant, that is, a judicial order based on a showing of probable cause and on a particular description of the property to be searched and the items to be seized. Reasonableness can also be established if one of the exceptions to the warrant requirements exists. In the data protection context, however, the application of the Fourth Amendment is relatively limited because of the third-party records doctrine which holds that individuals do not have an expectation of privacy in personal data that they voluntarily turn over to third parties like financial institutions and communications providers. With regard to EU citizens, the Supreme Court has held that foreign citizens resident abroad are not covered by the Fourth Amendment.

Among U.S. laws, the Privacy Act of 1974 is the closest analogue to a European data protection law in that it seeks to regulate comprehensively personal data processing, albeit only with respect to federal government departments and agencies. It regulates the collection, use, and disclosure of all types of personal information, by all types of federal agencies, including law enforcement agencies. At a general level, the Privacy Act contains most of the elements of the EU right to personal data protection. However, it only protects US citizens and permanent residents, not EU citizens.

Furthermore, there are a number of exemptions available specifically for law enforcement agencies. As a result, the benefits of the proposed legislation on judicial redress for EU citizens are unclear. The proposed legislation contemplates three types of law suits, two of which are designed to protect the right of access to and correction of personal data, and one of which enables individuals to obtain compensation for unlawful disclosures of personal data. Since law enforcement agencies commonly exempt their data bases from the access requirements of the Privacy Act, the right of action for intentional or willful disclosures that cause actual damage is the only one that would be available on a general basis.

In investigations involving ordinary crime, there are at least three different methods of personal data collection available to law enforcement officials: (1) use of private sources like commercial data brokers; (2) court and administrative subpoenas; (3) electronic surveillance and access to electronic communications based on a court order under the Electronic Communications Privacy Act. These information-gathering methods afford the same level of data protection for US and EU citizens.

With respect to EU data protection law, however, some of these methods contain relatively few data protection guarantees.

In the case of private sources of personal data, this is attributable to the absence of a comprehensive data protection scheme in the private sector and the vast quantities of personal information freely available to market actors and, consequently, also to law enforcement officials. With respect to the subpoena power and access to communications metadata and subscriber records (under the Stored Communications Act and the Pen Register Act), the lack of significant data protection guarantees is associated with the standard of “relevance” to any type of criminal investigation and the permissive application of that standard by the courts. The law and jurisprudence of “relevance,” in turn, is driven by the failure of US law to recognize a robust privacy interest in the personal data held by corporate entities and other third parties.

In investigations involving national security threats, which can involve both an intelligence and a law enforcement component, there are a number of additional means available to the government: (1) a special type of administrative subpoena known as a “national security letter”; (2) surveillance authorized by the Foreign Intelligence Surveillance Act (FISA); (3) any other form of intelligence gathering authorized by Executive Order 12,333 (and not covered by FISA). The information gathered through such methods can be shared with criminal prosecutors if relevant for law enforcement purposes.

Foreign intelligence gathering, both inside and outside the United States, follows a two-track scheme, one for US persons and another for non-US persons. With the exception of FISA electronic and physical surveillance orders, the data protection guarantees afforded to non-US persons are minimal. The stated intent of Presidential Policy Directive 28 is to provide for stronger personal data protection for non-US persons, but it is difficult to come to any conclusions at this point in time on what effect it will have.

More generally, even with respect to US persons, personal data protection under foreign intelligence law raises a couple of questions.

The first concerns the point in time when the right to privacy is burdened by government action. The US government has suggested that in the case of bulk collection of personal data, harm to the privacy interest only occurs after the personal data is used to search, or results from a search of, the information included in the data base.

This position stands in marked contrast with EU law, where it is well established that bulk collection, even before the personal data is accessed, is a serious interference with the right to personal data protection because of the number of people and the amount of personal data involved.

The second question concerns the conditions under which personal data can be shared between intelligence and law enforcement officials. In the realm of data processing by law enforcement and intelligence agencies, the European courts have emphasized that intrusive surveillance can only be conducted to combat serious threats that are carefully defined in law. They have also held that the information that results from such surveillance can only be used to combat those serious threats, whether to take national security measures or to prosecute the associated criminal offenses. In US law, by contrast, the law allows for intelligence to be transferred to the police and criminal prosecutors for any type of law enforcement purpose.

Continue reading here

(*) Prof. at George Washington University Law School, Washington, DC, USA

OPEN LETTER TO UK MPS: ENSURING DEMOCRATIC SCRUTINY OF UK SURVEILLANCE LAW CHANGES

ORIGINAL PUBLISHED ON EU LAW ANALYSIS

by Steve PEERS

Due to my concern about inadequate democratic scrutiny of changes to UK law (often linked to EU law) affecting privacy rights, I am one of the signatories to today’s letter to MPs on this issue, published in the Guardian and elsewhere. Thanks to Andrew Murray and Paul Bernal for taking this initiative.

An open letter to all members of the House of Commons,

Dear Parliamentarian,

Ensuring the Rule of Law and the democratic process is respected as UK surveillance law is revised

Actions Taken Under the Previous Government

During the past two years, the United Kingdom’s surveillance laws and policies have come under scrutiny as the increasingly expansive and intrusive powers of the state have been revealed and questioned in the media. Such introspection is healthy for any democracy. However, despite a need for transparency in all areas of lawmaking, and in particular in areas of controversy, the previous Government repeatedly resisted calls for an open and transparent assessment and critique of UK surveillance powers. Instead, in response to legal challenges, it extended the powers of the state in the guise of draft Codes of Practice and “clarifying amendments.” As we welcome a new Government we expect another round of revisions to UK surveillance laws, with the likelihood that the Queen’s Speech will signal a revival of the Communications Data Bill. At this time we call on the new Government, and the members of the House, to ensure that any changes in the law, and especially any expansions of power, are fully and transparently vetted by Parliament, and open to consultation from the public and all relevant stakeholders.

Last year, in response to the introduction of the Data Retention and Investigatory Powers Bill (“DRIP”), a number of leading academics in the field – including many of the signatories to this letter – called for full and proper parliamentary scrutiny of the Bill to ensure Parliamentarians were not misled as to what powers it truly contained. Our concern emanated from the Home Secretary’s attempt to characterize the Bill, which substantially expanded investigatory powers, as merely a re-affirmation of the pre-existing data retention regime.[1]

Since that letter was written, it has become apparent that the introduction of the DRIP Bill was not the only time an expansion of surveillance powers was presented in a way seemingly designed to stifle robust democratic consideration. In February 2015, the Home Office published the draft Equipment Interference Code of Practice.[2] The draft Code was the first time the intelligence services openly sought specific authorisation to hack computers both within and outside the UK. Hacking is a much more intrusive form of surveillance than any previously authorised by Parliament. It also threatens the security of all internet services as the tools intelligence services use to hack can create or maintain security vulnerabilities that may be used by criminals to commit criminal acts and other governments to invade our privacy. The Government, though, sought to authorise its hacking, not through primary legislation and full Parliamentary consideration, but via a Code of Practice.

The previous Government also introduced an amendment via the Serious Crimes Act 2015, described in the explanatory notes to the Bill as a ‘clarifying amendment’.[3] The amendment effectively exempts the police and intelligence services from criminal liability for hacking. This has had an immediate impact on the ongoing litigation of several organisations who are suing the Government based in part on the law amended, the Computer Misuse Act 1990.[4]

The Way Ahead

The new Conservative Government has announced its intention to propose new surveillance powers through a resurrection of the Communications Data Bill. This will require internet and mobile phone companies to keep records of customers’ browsing activity, social media use, emails, voice calls, online gaming and text messages for a year, and to make that information available to the government and security services. We also anticipate this Parliament will see a review of the Regulation of Investigatory Powers Act 2000, which currently regulates much of the Government’s surveillance powers. The Independent Reviewer of Terrorism Legislation, David Anderson QC, has conducted an independent review of the operation and regulation of investigatory powers, with specific reference to the interception of communications and communications data. The report of that review has been submitted to the Prime Minister, but has yet to be made public: when it is made public, parliamentary scrutiny of the report and any recommendations made following it will be essential.

As the law requires that surveillance powers must be employed proportionate to any harm to privacy caused (as required by Article 8 of the European Convention on Human Rights and Article 12 of the Universal Declaration of Human Rights) we believe that any expansion or change to the UK’s surveillance powers should be proposed in primary legislation and clearly and accurately described in the explanatory notes of any Bill. The Bill and its consequences must then be fully and frankly debated in Parliament. When reaching an assessment of the proportionality, of any measure that restricts rights, both our domestic courts and the European Court of Human Rights place great stock on the degree and quality of Parliamentary involvement prior to any measure being adopted. If the matter ever came to before the courts one issue examined would be the nature of any “exacting review” undertaken by MPs into the necessity of extending these powers. The Government should not be permitted to surreptitiously change the law whenever it so desires, especially where such changes put our privacy and security at risk.

This letter has been prepared and signed by 35 academic researchers. We are comprised of people from both sides of this issue – those who believe that increased powers are a reasonable response to an emerging threat, and those who think them an unjustified extension of state interference. Our common goal is to see the Rule of Law applied and Parliamentary oversight reasserted. We are calling on all members of the House of Commons, new and returning, and of all political persuasions to support us in this by ensuring Parliamentary scrutiny is applied to all developments in UK surveillance laws and powers as proposed by the current Government.

Signatories

Andrew Murray (contact signatory)	Paul Bernal (contact signatory)
Professor of LawLondon School of Economics a.murray@lse.ac.uk	Lecturer in Information Technology, Intellectual Property and Media Law University of East AngliaPaul.Bernal@uea.ac.uk
Subhajit BasuAssociate Professor University of Leeds	Sally Broughton MicovaDeputy Director LSE Media Policy Project, Department of Media and Communications London School of Economics and Political Science
Abbe E.L. BrownSenior Lecturer School of Law University of Aberdeen	Ian BrownProfessor of Information Security and Privacy Oxford Internet Institute
Ray CorriganSenior Lecturer in Maths, Computing and Technology Open University	Angela DalyPostdoctoral Research Fellow Swinburne Institute for Social Research Swinburne University of Technology
Richard DanburyPostdoctoral Research Fellow Faculty of Law University of Cambridge	Catherine EastonLancaster University School of Law
Lilian EdwardsProfessor of E-Governance Strathclyde University	Andres GuadamuzSenior Lecturer in Intellectual Property Law University of Sussex
Edina HarbinjaLecturer in Law University of Hertfordshire	Julia HörnleProfessor in Internet Law Queen Mary University of London
Theodore KonstadinidesSenior Lecturer in Law University of Surrey	Douwe KorffProfessor of International Law London Metropolitan University
Mark LeiserPostgraduate Researcher Strathclyde University	Orla LynskeyAssistant Professor of Law London School of Economics
David MeadProfessor of UK Human Rights Law UEA Law School University of East Anglia	Robin MansellProfessor, Department of Media and Communication London School of Economics
Chris MarsdenProfessor of Law University of Sussex	Steve PeersProfessor of Law University of Essex
Gavin PhillipsonProfessor, Law School University of Durham	Julia PowelsResearcher Faculty of Law University of Cambridge
Andrew PuddephattExecutive Director Global Partners Digital	Judith RauhoferLecturer in IT Law University of Edinburgh
Chris ReedProfessor of Electronic Commerce Law Queen Mary University of London	Burkhard SchaferProfessor of Computational Legal Theory University of Edinburgh
Joseph SavirimuthuSenior Lecturer in Law University of Liverpool	Andrew ScottAssociate Professor of Law London School of Economics
Peter SommerVisiting Professor Cyber Security Centre, De Montfort University	Gavin SutterSenior Lecturer in Media Law Queen Mary University of London
Judith TownendDirector of the Centre for Law and Information Policy Institute of Advanced Legal Studies University of London	Asma VranakiPost-Doctoral Researcher in Cloud Computing Queen Mary University of London
Lorna WoodsProfessor of Law University of Essex

[1] http://bit.ly/1jNzlUz
[2] http://bit.ly/1yiXUZD
[3] http://bit.ly/1LfVFz3
[4] http://bit.ly/1S4RCdJ

Posted by Steve Peers at 03:18

(UK) IS REPEALING THE HUMAN RIGHTS ACT COMPATIBLE WITH EU LAW?

ORIGINAL PUBLISHED ON EU LAW ANALYSIS

by Steve Peers

The new British government has indicated that it is determined to repeal the UK’s own Human Rights Act (HRA) in the near future. There are a number of legal and political problems with this idea, which are aptly summarised (with many links to further discussion) in a new Jack of Kent blog post. But the issue of the overlap between the HRA and EU law isn’t discussed there. I blogged last year on how the Conservative party’s strategy document on this issue fit very awkwardly with the UK’s EU law obligations, but it’s a good time to update this analysis.

First of all, let’s simplify the analysis by assuming that the UK will not withdraw from the European Convention on Human Rights (ECHR), although as discussed in the prior blog post, the strategy document did raise the possibility that the UK will withdraw from that Convention if the Council of Europe raises too many objections to its plans. As I blogged previously, withdrawal from the ECHR could impact upon the UK’s EU membership, but we are not at that stage yet.

Secondly, we have not yet seen the details of the government’s proposals to repeal the HRA, but I will assume for now that they will not aim to disapply the EU’s Charter of Rights in the domestic laws of the UK. I have separately blogged on the reasons why this would be unfeasible, but let’s assume for now (until we see those proposals) that this is not the government’s intention.

The core of the government plan (if it follows the template set out in the previous strategy document) is to weaken the domestic system of human rights protection, decouple it from the ECHR system and introduce new rules which weaken substantive protection of human rights for any group of people whom the government deems to be sufficiently despicable (for more details, see my critique of the plan here). How does that relate to EU law? Continue reading “(UK) IS REPEALING THE HUMAN RIGHTS ACT COMPATIBLE WITH EU LAW?”

The surveillance society (4): a further study for the European Parliament

Following the so called “Snowden revelations” at the end of the last legislature the European Parliament adopted a wide ranging resolution addressing the main problems arising from an emerging surveillance society. The resolution adopted inter alia “A European Digital Habeas Corpus” deemed to protect fundamental rights in a digital age.

Work on this sensitive issue is continuing also in this legislature as the European Parliament has to play a pivotal role in the establishment of the European Digital Agenda, the reform of data protection and to approve an “umbrella” agreement with the United States which is deemed to cover also the access to personal data for security purposes.

To support this Parliamentary strategy several studies have been done the last of them being a study done by the EP “Scientific and Technology Options Assessment “(STOA) which was presented in the responsible Parliamentary Committee (LIBE) Meeting on 23 April 2015.

The aim of the study is to propose measures to reduce the risks identified with the current generation of networks and services and to identify long-term technology oriented policy options for a better, more secure and more privacy friendly internet, whilst at the same time allowing governmental law enforcement and security agencies to perform their duties, and obtain quickly and legally all the information needed to fight crime and to protect national security interests.

The first part of the study concludes with a list of security solutions to help citizens protect themselves from illicit mass surveillance activities. In its Conclusions it recognise that “Mass surveillance is a reality today and has been applied for years by national intelligence agencies of a number of countries, namely those allied in the Five Eyes coalition, but also including EU members and other countries. The agencies involved in mass surveillance practices justify these methods with the doctrine of pre-emptive prevention of crime and terrorism and adopt the principle of omniscience as its core purpose. This objective of intercepting all communication taking place over Internet or telephone networks is in many cases pursued by applying questionable, if not outright illegal intrusions in IT and Telecommunication systems.This strategy accumulates an amount of information that can only be processed and analysed by systems of artificial intelligence, able to discern patterns which indicate illegal, criminal, or terrorist activities. While warranted and lawful interception of data on targeted suspects is a required and undisputed tool for law enforcement to access evidence, the generalised approach of information gathering through mass surveillance is violating the right to privacy and freedom of speech. The delegation of decisions on suspicious data patterns or behaviour of citizens to intelligent computer systems is furthermore preventing accountability and creating the menace of an Orwellian surveillance society. Many citizens are not aware of the threats they may be subject to when using the Internet or telecommunication devices. As of today, the only way for citizens to counteract surveillance and prevent breach of privacy consists in guaranteeing uncorrupted end-to-end encryption of content and transport channel in all their communications. Due to the amount/complexity/heterogeneity of tools this is however a task too complex to achieve for most of technically unexperienced user. This situation calls for both, awareness creation and the provision of integrated, user friendly and easy to use solutions that guarantee privacy and security of their communications. But policy makers must understand that the problem of mass surveillance can not be solved on a technical terrain, but needs to be addressed on a political level. An adequate balance between civil liberties and legitimate national security interests has to be found, based on a public discussion that empowers citizens to decide upon their civil rights affected and the societal values at stake”.

The second part of the study concludes with the proposal of several policy options with different levels of public intervention and technological disruption.

A STOA options brief below provides an overview of all the policy options and Two short Video-Clips have been published on YouTube to raise the awareness of the public.

Further information

Victor Orban, la peine de mort et l’engagement européen de la Hongrie : noces d’étain ou mariage blanc ?

Original published HERE

By Simon LABAYLE

8 MAI 2015 CERIC

Mariage d’amour, mariage d’argent… L’Union européenne a vu se marier toutes sortes de partenaires. Des noces enthousiastes, lorsque la Grèce, le Portugal ou l’Espagne rejoignaient les démocraties déjà membres des Communautés au nom de démocraties au nom de la promotion de l’Etat de droit. Des mariages de raison, lorsque la Suède ou le Danemark la rejoignaient sans ferveur, en cédant à des impératifs essentiellement économiques. Les différentes vagues d’élargissement qui ont façonné le visage de l’Union contemporaine n’ont donc pas provoqué une liesse comparable. Chacune d’entre elle révélait pourtant la volonté de s’unir à ses voisins européens.

L’histoire politique et juridique de l’Union européenne appelle cependant aujourd’hui à réfléchir au sens comme à la force de cet engagement. Un nouvel épisode tiré de la relation tourmentée qu’entretiennent la Hongrie et l’Union sert ici de toile de fond à une réflexion plus globale. On sait en effet les crises qui troublent régulièrement leurs rapports depuis l’investiture de Viktor Orban en tant que Premier ministre suite aux élections législatives d’avril 2010. La dernière en date relance un débat que l’on pensait clos sur la peine de mort.

1. L’Union européenne et la peine de mort

Il convient, avant toute autre chose, de rappeler que la peine de mort est expressément proscrite par le droit de l’Union européenne. L’article 2 de la Charte des droits fondamentaux ne laisse planer aucune ambigüité : « 1. Toute personne a droit à la vie. 2. Nul ne peut être condamné à la peine de mort, ni exécuté ». L’article 19 de la Charte précise d’ailleurs même que « Nul ne peut être éloigné, expulsé ou extradé vers un État où il existe un risque sérieux qu’il soit soumis à la peine de mort, à la torture ou à d’autres peines ou traitements inhumains ou dégradants ». Ce rappel d’une jurisprudence connue de la CourEDH constitue donc un indicateur non négligeable du statut particulier dont jouit cette interdiction au sein de l’Union.

Parallèlement, et au-delà du droit primaire, l’Union européenne a également adopté des orientations contre la peine de mort en 1998, révisées en 2008 et 2013, selon lesquelles « l’UE considère que l’abolition de la peine de mort contribue au renforcement de la dignité humaine et au développement progressif des droits de l’homme … », tandis que ses principales personnalités politiques multiplient les déclarations en ce sens avec une régularité métronomique. Les présidents Van Rompuy et Barroso l’ont par exemple rappelé à l’occasion du discours le plus symbolique qu’ils prononcèrent au cours de leurs mandats respectifs : celui de leur acceptation du prix Nobel de la paix prononcé le 11 décembre 2012. Plus récemment, en toute logique, l’actuel Président du Conseil européen Donald Tusk a également dénoncé la condamnation à mort médiatisée du ressortissant français Serge Atlaoui par l’Indonésie.

L’Union européenne ne se borne donc pas à proscrire la peine de mort sur son sol. Elle a engagé un véritable combat à son encontre et elle s’impose même comme le premier donateur mondial dans la lutte contre la peine capitale. Cette interdiction dessine donc l’un des marqueurs symboliques de l’identité de l’Union. Il est bon de rappeler aussi que la peine de mort est parallèlement proscrite dans les 47 Etats membres du Conseil de l’Europe, que les articles 2 et 3 de la Convention européenne des droits de l’homme ont été interprétés par la Cour européenne des droits de l’homme comme interdisant celle-ci en toutes circonstances (arrêt Al Saadoon et Mufdhi c. Royaume Uni du 2 mars 2010, § 120), tandis que deux protocoles de la Convention prévoient son abolition (Protocoles 6 et 13). Individuellement, les Etats membres de l’Union sont donc liés par cette obligation, la Hongrie y compris. Il n’est donc nul besoin de démontrer que cette lutte constitue un pivot essentiel de la singularité européenne sur la scène internationale. Ce que Viktor Orban ne pouvait évidemment ignorer.

2. Une nouvelle « affaire » hongroise ?

Continue reading “Victor Orban, la peine de mort et l’engagement européen de la Hongrie : noces d’étain ou mariage blanc ?”

The Surveillance society (2) by Jens-Henrik JEPPESEN

Controversial French Surveillance Regulation Should Re-Ignite EU Debate on Surveillance Reform

Original Published HERE

by JENS-HENRIK JEPPESEN

As has been widely reported in the press, France is moving ahead with new legislation to enable expanded electronic surveillance. As expected, the surveillance bill, the Projet de Loi Relatif au Renseignement, was passed by Members of the French National Assembly by an overwhelming majority on May 5, sparking a fresh round of heated debate. The legislation will now move to France’s other parliamentary house, the Senate.

The bill is so excessive that we believe it could, and should, lead to a renewed debate on surveillance reform across Europe..

A wide range of French civil society groups, lawyers, and technology industry groups have voiced strong opposition to the bill from its inception. Some have even dubbed the law a French Patriot Act, and the expanded powers found in the legislation would in fact pose a serious threat to human rights in France. Indeed, the bill is so excessive that we believe it could, and should, lead to a renewed debate on surveillance reform across Europe. We have long believed that action at the EU level is critical to protecting human rights in the surveillance context, and the French bill shows that this need is more urgent than ever.

According to an analysis by one of the main opponents of the bill, the French digital rights group La Quadrature du Net, the draft bill was introduced by Prime Minister Valls with the ostensible goal of providing a clear legal framework for intelligence gathering that respects fundamental rights. In reality, however, the law expands the scope of permissible electronic surveillance and legalizes a range of highly problematic monitoring techniques that can be extended for potentially indefinite periods and are subject only to relatively weak oversight. This creates a range of serious civil liberties concerns.

One issue is the widespread use of privacy-invasive surveillance technology. The law would authorize government officials to compel telecommunications service providers to install so-called “black boxes” to monitor the metadata of users’ personal communications for suspicious patterns or behavior, based on automated analysis and algorithms. No judicial review, or judicial warrant, would be required for such surveillance. Additionally, although the data would initially be analyzed on an anonymous basis (and would not include the content of messages), the authorities would have the power to lift this anonymity for at least some individual users if they believe the patterns show a terrorist threat. Some experts have already begun to highlight the risk of false positives as well as the technical flaws in the idea of “anonymous” data that can be “de-anonymized”. These practices show that the French interior minister’s claim that the bill is “not aimed at installing generalized surveillance” in France is flat wrong.

Another problem is the broad objectives for which the surveillance techniques foreseen in the bill can be used. The bill uses wording such as “essential foreign policy interests,” “international commitments,” “essential economic or scientific interests,” and “collective violence that could cause serious harm to the public peace.” This is in addition to protecting national security and fighting terrorism and organized crime. With such a vaguely defined and broad scope of application, the surveillance measures authorized by the bill could be brought to bear in a very wide set of contexts and cover large sections of society.

Now would be an excellent time to open a proper European debate on what sort of surveillance may be justified, and what proper oversight of surveillance programs looks like…

Furthermore, the bill creates a set of separate rules on “communications sent or received abroad.” LQDN’s analysis shows that interception, collection, retention, and use of such communications by the intelligence services would not be covered by any of the usual privacy protections found in French law. The rules on this data would be set out in a classified decree to be adopted sometime in the future.

Now would be an excellent time to open a proper European debate on what sort of surveillance may be justified, and what proper oversight of surveillance programs looks like. We are conscious of the limits on the authority of the EU institutions in matters of national security. However, the EU Member States have clear and inescapable obligations under EU law as well as the European Convention on Human Rights to conduct their surveillance activities in strict accordance with privacy and other fundamental rights. Neither France nor any other Member State can ignore those obligations, including by passing laws as excessive as the one the French Parliament is currently considering. These pressing issues need to be debated, and any country that overreaches must be held to account.

Thus far, the European Member States have been reluctant to engage in such a debate on their own initiative. Therefore, it would be appropriate for both the European Parliament and the European Commission to take the lead in getting that debate going.

Terrorisme : La France n’est pas seule concernée mais la France doit aussi se sentir en cause ..

OPINION (ORIGINAL PUBLISHED HERE)

par Simone GABORIAU
Présidente de chambre honoraire de la cour d’appel de Paris (Membre du Conseil d’administration de M.ED.E.L).

Apres les attentats des 7, 8, 9 janvier, les plus meurtriers qu’ait connus la France depuis plus de 50 ans (1), après la stupeur, l’émotion et l’union, le temps de la réflexion rationnelle s’impose. Il faut le faire en France et au sein de l’Europe des droits de l’homme mais aussi dans le contexte de l’environnement humanitaire mondial.
Les actes terroristes ne sont pas nouveaux dans l’histoire du monde
Contrairement a bien des idées reçues, le terrorisme n’est pas le fruit du malheur de notre temps mais appartient a une histoire ancienne.
« L’histoire mondial du terrorisme concerne la totalité du monde et ne fait pas de distinction entre continents, aires culturelles et religieuses (2) ».
Du terrorisme interne au terrorisme international, les origines en ont été multiples ; y ont été représentées : toutes les religions, divers courants de pensée, des mouvements irrédentistes, ou de résistance à l’oppression ou de conquête d’indépendance face au colonisateur… Certains groupements ont été héroïses d’autres diabolisés. Certains ont été vaincus par la force ou la répression, d’autres se sont finalement assis a des tables de négociations. Sans oublier de citer le « terrorisme d’Etat » dont l’origine est notamment à « la terreur » de la Révolution française, reprise par la Révolution russe et qui peut s’appliquer à bien des situations de terreur d’Etat qui ont sévi ou sévissent encore dans le monde.

Un terrorisme devenu global

Les attentats du 11 septembre 2001, ont révélé que l’on doit, de plus en plus, faire face à un terrorisme global, en ce qu’il emprunte les moyens de la globalisation technologique et financière pour relier des individus, ou groupes, terroristes, indépendamment de leur base territoriale.
Cette nouvelle dimension a facilité la montée en puissance du terrorisme se revendiquant du radicalisme islamique lequel, actuellement, serait responsable de la majorité du nombre de victimes (3).
Mais il faut se garder, d’interpréter cette situation comme une manifestation du « choc guerrier des civilisations » car ce serait tomber dans le piège tendu par ce terrorisme.

La reconnaissance d’une communauté mondiale de valeurs (4) ?

Ce caractère global a plus que jamais motive la volonté de coopération internationale. Apres l’échec de la SDN, l’ONU peine a l’établir de façon compatible avec la sauvegarde des droits fondamentaux comme l’illustre le système des « listes noires » finalement annulé par la Cour de justice des communautés européennes (5).
Cette communauté de valeurs parait avoir été mieux sauvegardée au niveau européen, a tout le moins, par le rôle des juridictions Cour Européenne des droits de l’homme et Cour de justice des communautés européennes.

La montée en puissance de la reconnaissance des victimes

Dans cette communauté de valeurs, la personne de la victime a pris une place grandissante. L’acte terroriste qui trouvait jusque dans les années 1970-80, bien des gens pour l’excuser ou le légitimer est devenu d’autant plus insupportable qu’il visait des civils définis des lors comme des victimes par excellence (6).
Le discours public en France, et sans doute dans bien des pays, est particulièrement sensible a la prise en compte des victimes. C’est, au reste, un des progrès récent de nos sociétés démocratiques.

Brève, et non exhaustive, analyse de la situation Française Continue reading “Terrorisme : La France n’est pas seule concernée mais la France doit aussi se sentir en cause ..”

THE EU RESPONSE TO MIGRANT DEATHS: PROTECTION AND PREVENTION – OR POLICY LAUNDERING?

ORIGINAL PUBLISHED ON EU LAW ANALYSIS Wednesday, 22 April 2015

by Steve Peers

On Monday, EU foreign and interior ministers adopted a ten-point plan in response to the recent huge death toll of migrants crossing the Mediterranean. There will be a summit on Thursday to examine the issue further, and then an EU Commission strategy proposed on May 13^th. But for now, I want to examine the initial plan.

Overall, this is a very disappointing document. It’s not only vague on crucial details but more importantly focusses less on the situation of the migrants (addressing the root causes which cause them to move, and protection from drowning and persecution) and more on border control and repression. One point in the plan constitutes a rather crass example of ‘policy laundering’ – attempting to use a crisis to shove through an essentially unrelated policy objective.

Let’s look at the ten points of the EU plan in turn, then examine the ‘Australian solution’ and the ‘Christians only’ approach which some have suggested. For alternative solutions to the problem, see the proposals of the UN Special Rapporteur on Migrants, the EU’s Fundamental Rights Agency, Patrick Kingsley (in the Guardian), Nando Sigona, and myself.

Reinforce the Joint Operations in the Mediterranean, namely Triton and Poseidon, by increasing the financial resources and the number of assets. We will also extend their operational area, allowing us to intervene further, within the mandate of Frontex;

This is the only one of the ten measures related directly to search and rescue, although it’s not clear if this is actually intended to be a search and rescue mission. The mandate of ‘Frontex’ (the EU’s border control agency) concerns border control, not search and rescue as such. Indeed there is no mention of search and rescue here, or in the rest of the plan. Nor is there any express mention in the plan of the recent loss of life. There are no details of the extent of the increase in financial resources and assets, or the extent to which the operational area will increase. Continue reading “THE EU RESPONSE TO MIGRANT DEATHS: PROTECTION AND PREVENTION – OR POLICY LAUNDERING?”