2. Values & principles of the European Union – Page 23 – European Area of Freedom Security & Justice

Twelve European countries call for a “European Protection Order” combating violence against women

This week the Civil Liberties, Justice and Home Affairs Committee of the European Parliament will examine an interesting initiative for a Directive presented by twelve Members of the European Union (the Kingdom of Belgium, the Republic of Bulgaria, the Kingdom of Spain, the Republic of Estonia, the French Republic, the Italian Republic, the Republic of Hungary, the Republic of Poland, the Portuguese Republic, Romania, the Republic of Finland and the Kingdom of Sweden under the Spanish Presidency in accordance to the Stockholm Programme) within the framework of judicial cooperation in criminal matters.

The initiative concerns a proposal for a “European Protection Order” to ensure that the protection provided especially to women victims of violence in one Member State is maintained and continued in any other Member State to which the person moves or has moved.

The Initiative is accompanied by an explanatory memorandum allowing to appraise compliance with the principles of subsidiarity and proportionality, in accordance with Article 5 of Protocol (No 2) to the Lisbon Treaty together with a questionnaire drawn up by the Spanish Presidency on the current legislative framework in the Member States.

According to the proposal for a directive, the victim under threat should, as far as possible, enjoy the same level of protection throughout EU territory as in the State which adopted the original protection measure. The Member State to which the victim under threat moves should provide an “immediate response” in the form of a “European protection order” imposing to the “Person causing danger” one or more of the following obligations or prohibitions:

(a) an obligation not to enter certain localities, places or defined areas where the protected person resides or that he visits;

(b) an obligation to remain in a specified place, where applicable during specified times;

(d) an obligation to avoid contact with the protected person; or

(e) a prohibition on approaching the protected person closer than a prescribed distance.

Naturally, this initiative “shall not have the effect of modifying the obligation to respect fundamental rights and fundamental legal principles” as enshrined in Article 6 (article 3) of the TEU.

The European protection order is issued by a judicial authority or another competent authority only at the request of the protected person, after verifying that the protection measure meets all the requirements of the national legislation of the issuing or the requesting State.

It shall also include a summary of the facts and circumstances which have led to the imposition of the protection measure in the issuing State (if necessary with an explicit indication of a ruling on the basis of article 2 of the framework decision 2008/947/GAI or a decision concerning preventive measures on the basis of article o 4 of the framework decision 2009/829/GAI) as well as the obligations or prohibitions imposed in the protection measure underlying the European protection order on the person causing danger.

Furthermore, the length of these obligations and restrictions and the express indication that their infringement constitutes a criminal offence under the law of the issuing State or may otherwise be punishable by a deprivation of liberty should be indicated.

The proposal for a directive recognises the right by the competent authority of the executing State to refuse to recognise a European protection order in the following circumstances:

(a) the European protection order is not complete or has not been completed within the time-limit set by the competent authority of the executing State;

(b) the requirements set out in Article 2(2) have not been met;

(c) the protection derives from the execution of a penalty or measure that is covered by amnesty according to the law of the executing State and relates to an act which falls within its competence according to that law;

(d) there is immunity conferred under the law of the executing State on the person causing danger, which makes it impossible to adopt the protection measures.

The scrutiny of this initiative appears as a priority of the Spanish Presidency which, therefore, will try to obtain the European Parliament’s support in view of a swift adoption in first reading (as it happened in other cases).

If this will occur, the qualified majority in the Council will be sufficient to adopt the initiative together with the simple majority in the European Parliament.

In addition, national parliaments will be entitled to intervene to signal their opposition if they believe that the proposal does not respect the principle of subsidiarity.

Last but not least, also the European Commission will be able to express its opinion during the legislative process. However, it will not be able to tide the Council’s position as when it does when it concerns its own initiative (indeed, in these circumstances the Council may approve a proposal different from the Commission’s one only by unanimity in order to protect the right of initiative of the institution defined as the “guardian of the Treaties”).

EDC

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

The new powers of the Court of Justice after the entry into force of the Lisbon Treaty

The press release published on November 30th by the Court of Justice is worth reading by everybody interested in the European Law as well by the every individual whishing to bthe protection of its rights.
The very essential and clear text is the following:

The Treaty of Lisbon and the Court of Justice of the European Union

The Treaty of Lisbon, which was signed on 13 December 2007 by the 27 Heads of State or Government of the Member States of the Union, comes into force on 1 December 2009. It amends the two fundamental treaties – the Treaty on European Union (TEU) and the Treaty establishing the European Community, with the latter to be known in future as the ‘Treaty on the Functioning of the European Union’ (TFEU). (1)
The Treaty of Lisbon makes changes to the organisation and jurisdiction of the Court of Justice of the European Union.

Continue reading “The new powers of the Court of Justice after the entry into force of the Lisbon Treaty”

“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