Category: 3. Fundamental rights – Charter

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.

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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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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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.

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New prospects for relations between the Court of Justice and national courts

Everyone knows the fundamental role of the Court of Justice in the construction of a European legal space. Indeed, thanks to its preliminary rulings which guide the work of national courts when they are called upon to enforce community law. Over the decades, the dialogue between European and national courts has ensured an increasingly faithfully interpretation of community law as well as the development of a true common legal culture.

After all, what value might have fundamental rights to stakeholders if judges are not capable to secure their correct application?

In this regard it must be recognised that the increased synergy between European and national judges (acting in this case as ‘European’ judges) together with the new powers of European Court of Justice in the area of freedom, security and justice resulted by the entry into force of the Treaty of Lisbon will definitely increase individual’s rights in this domain.

For example, in the field of police and judicial cooperation in criminal matters (the so-called “third pillar”), before the entry into force of the Lisbon Treaty, the Court’s ability to issue preliminary rulings relied upon Member States’ discretion on the basis of Article 35 of the Treaty on European Union (*). Indeed up to the 30 November several of these Member States did not accept the Court’s competence competence.

Another example relates to the domains ‘communitarised’ in 1999 with the Treaty of Amsterdam (immigration, borders, asylum and judicial and criminal cooperation). Although in this case the situation was a bit better, Article 68 TEC (**) limited the possibility to obtain pre-trial interpretation only to judges of last appeal.

With the Treaty of Lisbon this situation has radically changed. With a Communication  appeared in the Official Journal on 5 December, the European Court of Justice has published a series of apparently non-binding guidelines aimed at establishing a daily relation between national and European judges.

In this regard, the guidelines concerning the urgent preliminary ruling procedure related to the area of freedom, security and justice are particularly interesting. They state:

The procedure is governed by Article 23a of Protocol (No 3) on the Statute of the Court of Justice of the European Union (OJEU 2008 C 115, p. 210) and Article 104b of the Rules of Procedure of the Court of Justice. National courts may request that this procedure be applied or request the application of the accelerated procedure under the conditions laid down in Article 23a of the Protocol and Article 104a of the Rules of Procedure.”

Conditions for the application of the urgent preliminary ruling procedure

33. The urgent preliminary ruling procedure is applicable only in the areas covered by Title V of Part Three of the TFEU, which relates to the area of freedom, security and justice.

34. The Court of Justice decides whether this procedure is to be applied. Such a decision is generally taken only on a reasoned request from the referring court. Exceptionally, the Court may decide of its own motion to deal with a reference under the urgent preliminary ruling procedure, where that appears to be required.

35. The urgent preliminary ruling procedure simplifies the various stages of the proceedings before the Court, but its application entails significant constraints for the Court and for the parties and other interested persons participating in the procedure, particularly the Member States.

36. It should therefore be requested only where it is absolutely necessary for the Court to give its ruling on the reference as quickly as possible. Although it is not possible to provide an exhaustive list of such situations, particularly because of the varied and evolving nature of the rules of European Union law governing the area of freedom, security and justice, a national court or tribunal might, for example, consider submitting a request for the urgent preliminary ruling procedure to be applied in the following situations: in the case, referred to in the fourth paragraph of Article 267 TFEU, of a person in custody or deprived of his liberty, where the answer to the question raised is decisive as to the assessment of that person’s legal situation or, in proceedings concerning parental authority or custody of children, where the identity of the court having jurisdiction under European Union law depends on the answer to the question referred for a preliminary ruling.

However, it must be pointed out that these new competences will not be applied before five years  in the area of police and judicial cooperation in criminal matters for acts adopted before the entry into force of the Treaty of Lisbon (art. 10 Protocol 36).

Also with this temporally exception it is nonetheless clear that a new phase has now started also for European judges. The interpretation of community law can now be based on an even more authority Court which in turn can rely on the Treaty and the binding Charter on Fundamental Rights binding for all the institutions, including European and national judges.

EDC

(*) EX Article 35 (TEU)
1. The Court of Justice of the European Communities shall have jurisdiction, subject to the conditions laid down in this Article, to give preliminary rulings on the validity and interpretation of framework decisions and decisions, on the interpretation of conventions established under this Title and on the validity and interpretation of the measures implementing them.
2. By a declaration made at the time of signature of the Treaty of Amsterdam or at any time thereafter, any Member State shall be able to accept the jurisdiction of the Court of Justice to give preliminary rulings as specified in paragraph 1.

3. A Member State making a declaration pursuant to paragraph 2 shall specify that either:

(a)any court or tribunal of that State against whose decisions there is no judicial remedy under national law may request the Court of Justice to give a preliminary ruling on a question raised in a case pending before it and concerning the validity or interpretation of an act referred to in paragraph 1 if that court or tribunal considers that a decision on the question is necessary to enable it to give judgment, or

(b) any court or tribunal of that State may request the Court of Justice to give a preliminary ruling on a question raised in a case pending before it and concerning the validity of interpretation of an act referred to in paragraph 1 if that court or tribunal considers that a decision on the question is necessary to enable it to give judgment. Treaty on European Union 25

4. Any Member State, whether or not it has made a declaration pursuant to paragraph 2, shall be entitled to submit statements of case or written observations to the Court in cases which arise under paragraph 1.

5. The Court of Justice shall have no jurisdiction to review the validity or proportionality of operations carried out by the police or other law enforcement services of a Member State or the exercise of the responsibilities incumbent upon Member States with regard to the maintenance of law and order and the safeguarding of internal security.

6. The Court of Justice shall have jurisdiction to review the legality of framework decisions and decisions in actions brought by a Member State or the Commission on grounds of lack of competence, infringement of an essential procedural requirement, infringement of this Treaty or of any rule of law relating to its application, or misuse of powers. The proceedings provided for in this paragraph shall be instituted within two months of the publication of the measure.

7. The Court of Justice shall have jurisdiction to rule on any dispute between Member States regarding the interpretation or the application of acts adopted under Article 34(2) whenever such dispute cannot be settled by the Council within six months of its being referred to the Council by one of its members. The Court shall also have jurisdiction to rule on any dispute between Member States and the Commission regarding the interpretation or the application of conventions established under Article 34(2)(d).

(**) Article 68 TCE
1. Article 234 shall apply to this title under the following circumstances and conditions: where a question on the interpretation of this title or on the validity or interpretation of acts of the institutions of the Community based on this title is raised in a case pending before a court or a tribunal of a Member State against whose decisions there is no judicial remedy under national law, that court or tribunal shall, if it considers that a decision on the question is necessary to enable it to give judgment, request the Court of Justice to give a ruling thereon.

2. In any event, the Court of Justice shall not have jurisdiction to rule on any measure or decision taken pursuant to Article 62(1) relating to the maintenance of law and order and the safeguarding of internal security.

3. The Council, the Commission or a Member State may request the Court of Justice to give a ruling on a question of interpretation of this title or of acts of the institutions of the Community based on this title. The ruling given by the Court of Justice in response to such a request shall not apply to judgments of courts or tribunals of the Member States which have become res judicata.

After Lisbon, still a bumpy road for transparency in the EU institutions..

Two weeks after the entry into force of the new Lisbon Treaty the main objective of which is to increase the democratic accountability of all the EU institutitions the European Parliament has invited the Council and the Commission to work together on the reform of the EU legislation in this sensitive matter building on the new art. 15 (*) of the Treaty on the functionning of the European Union.
Not surprisingly the debate has showed that the Strasbourg plenary is still alone in the search of more transparency.
The proof of it is the fact that on its side the Commission did’nt move of one comma of its 2008 contested initiative legislative proposal and even confirmed it as a basic text of the legislative work also under the Lisbon Treaty even if it is now clearly outdated face to the last two years of progressive judgments of the Court of Justice and to the Lisbon Treaty which impose the principle of transparency to all the EU Institutions, bodies and Agencies.
On its side the Council has taken an even more restrictive approach by adopting the minimum of possible amendments to its internal rules of procedures following the entry into force of the new Treaty and of some of its directly applicable rules (such as the one referring to the legislative proceedings), followed by the European Council itself where the Head of State and Governement have taken the confidentiality as a general principle in their internal rules.
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The “terrorists lists”: new (coordinated?) initiatives of the United Nations and European Union

Something is moving , at last, as far as protection of fundamental rights is concerned for people who have been erroneously registered by the EU or by the United nations in the so called “terrorist lists”.
It is happening after years of quarrels raised at political level by the European Parliament, the Council of Europe’s Assembly and even by the UN General Assembly and after several judgments notably by the European Court of Justice, as it happened with the landmark Kadi ruling in September 2008.

It is worth remembering that these lists are established by the UN Security Council acting in the framework of Title VII of the UN Charter which deals with the binding measures to be taken to preserve “…the peace, breaches of the peace, and acts of aggression”.

These measures aimed notably at fighting international terrorism have been routinely adopted after 9/11 in the framework of the UNSC Resolution 1267/99 (which refers the establishment of “UN” terrorists lists by specialized Committees of the Security Council) and Resolution 1373/01 (which requires all the UN Member States to establish their own “national” terrorists lists).
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The Council signes the provisional agreement on SWIFT

Despite the European Parliament concerns, the Council has signed the last day before the entry into force of the Lisbon Treaty on Novembre 30th, an EU-US agreement on the processing and transfer of financial messaging data for the fight against terrorism. The agreement will be provisionnally applicable from 1 February 2010 and will expire on 31 October 2010.

However, due to the reservations put forward by two Member States the agreement has not been formally concluded under the Nice Treaty so that at the entry into force of the new Treaty on December 1st a new legal regime has entered into force which require for the conclusion the approbation by the European Parliament.

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