Category: 8.2 Judicial cooperation in criminal matters

A quest for accountability? EU and Member State inquiries into the CIA Rendition and Secret Detention Programme

EXCERPTS FROM A STUDY FOR THE EP LIBE COMMITTEE 

Authors: Prof. Didier Bigo, Dr Sergio Carrera, Prof. Elspeth Guild, and Dr Raluca Radescu.

At the request of the LIBE Committee, this study assesses the extent to which EU Member States have delivered accountability for their complicity in the US CIA-led extraordinary rendition and secret detention programme and its serious human rights violations. It offers a scoreboard of political inquiries and judicial investigations in supranational and national arenas in relation to Italy, Lithuania, Poland, Romania and the United Kingdom. The study takes as a starting point two recent and far-reaching developments in delivering accountability and establishing the truth: the publication of the executive summary of the US Senate Intelligence Committee (Feinstein) Report and new European Court of Human Rights judgments regarding EU Member States’ complicity with the CIA. The study identifies significant obstacles to further accountability in the five EU Member States under investigation: notably the lack of independent and effective official investigations and the use of the ‘state secrets doctrine’ to prevent disclosure of the facts, evade responsibility and hinder redress to the victims. The study puts forward a set of policy recommendations for the European Parliament to address these obstacles to effective accountability.

EXECUTIVE SUMMARY

Although much has been done over the last ten years to overcome major obstacles to ensuring democratic and judicial accountability in respect of EU Member States’ complicity in the unlawful US CIA-led extraordinary rendition and secret detention programme, much remains to be done to uncover the truth and hold those responsible accountable for their actions.

This study takes as a starting point two recent and highly significant developments that have helped to shed light on, and establish accountability for, the actions of EU Member States engaged in the Central Intelligence Agency (CIA) rendition and detention programme. The first is the U.S. Senate Intelligence Committee “Study of the Central Intelligence Agency’s Detention and Interrogation Program” (also known as the Feinstein Report) published in December 2014, which provided further evidence of the nature of the relationship between the CIA and several European state authorities and their wrongdoing. The second is the collection of recent judgments of the European Court of Human Rights (ECtHR), particularly in the Al Nashiri and Abu Zubaydah cases, which have helped to provide substantive rule of law standards against which to measure national political inquiries and judicial investigations.

Through the prism of these two important recent developments, this study builds on the 2012 European Parliament study on “The results of inquiries into the CIA’s programme of extraordinary rendition and secret prisons in European states in light of the new legal framework following the Lisbon treaty”. First (section 2), it pinpoints the critical findings of the Feinstein Report and their relevance for EU Member State inquiries, in particular the new revelations that: the CIA was isolated both nationally and internationally; European states that collaborated with the CIA were quick to withdraw assistance when scrutiny increased, leaving the CIA on the run; the UK failed to refute unfounded CIA claims about the intelligence value of information extracted by torture; and the CIA paid large sums of money to cooperative Member States. The study also examines the media controversy provoked by the release of the Feinstein Report and the efforts made by certain actors to undermine its findings.

The study then (section 3) offers an up-to-date account of political inquiries and judicial investigations in five Member States (Italy, Lithuania, Poland, Romania and the United Kingdom). It argues that, while political inquiries and domestic judicial investigations have been or are being conducted in all five Member States and there have been ECtHR cases regarding all but the UK, they have all been beset by obstacles to accountability. The response of the EU institutions is also analysed. While it is acknowledged that the European Commission has taken tentative steps to encouraging accountability (notably in sending letters to Member States in 2013 to request information on investigations underway), it is found that neither the Commission nor the Council have properly followed up on the European Parliament’s recommendations.

After providing a detailed analysis of the recent ECtHR judgments in the Al Nashiri and Abu Zubaydah cases (section 4) and detailing the rule of law benchmarks against which the effectiveness of national investigations can be tested, the study then measures the national political inquiries and judicial investigations and finds them wanting, either because of a lack of independence or because national security or state secrets have been invoked to prevent disclosure of the facts (section 5).

Finally, the study examines what has prevented EU institutions from taking effective action in response to the CIA programme (section 6). It finds a general lack of political will exacerbated by an absence of a clear enforcement mechanism to ensure compliance with the rule of law as laid down in Article 2 TEU, meaning that the important step taken by the Commission to send letters to Member States is bereft of a clear legal framework.

In light of the above considerations, the Study formulates the following policy recommendations to the European Parliament:

Recommendation 1: The Parliament, particularly the LIBE Committee, should establish regular structured dialogue with relevant counterparts in the U.S. Congress and Senate, which would provide a new framework for sharing information and cooperating more closely on interrelated inquiries in the expanding policy field of Justice and Home Affairs.

Recommendation 2: The Parliament should use the recent LIBE Committee decision to draw up a Legislative Own-Initiative Report on an EU mechanism on democracy, the rule of law and fundamental rights to develop and bring further legal certainty to the activation phases preceding the use of Article 7 TEU. Parliament should also insist that the Commission periodically evaluate Member States’ compliance with fundamental rights and the rule of law under a new ‘Copenhagen Mechanism’ to feed into a new EU Policy Cycle on fundamental rights and rule of law in the Union.

Recommendation 3: The Parliament should adopt a Professional Code for the transnational management and accountability of data in the EU. The Code would outline where ‘national security’ and ‘state secrets’ cannot be invoked (i.e. define what national security is not). It would additionally lay down clear rules aimed at preventing the use and processing of information originating from torture or any related human rights violations.

Recommendation 4: The Parliament should demand that the Commission properly follow up on its resolutions and recommendations.

Recommendation 5: The Parliament should call on the President of the European Council to issue an official statement on the rendition programme to the Plenary, stating clearly the degree of Member States’ complicity and detailing obstacles to proper accountability and justice for the victims.

Recommendation 6: The Parliament should call for effective judicial investigations into the Feinstein Report’s findings that the CIA paid large sums of money to Member States for their complicity in the rendition programme, which amount to allegations of corruption.

The EU-US Umbrella agreement on Data Protection just presented to the European Parliament. All people apparently happy, but….

ORIGINAL PUBLISHED BY EU-LOGOS

by Paola Tavola (EU LOGOS Trainee)

“For the first time ever, the EU citizens will be able to know, by looking at one single set of rules, which minimum rights and protection they are entitled to, with regards to data share with the US in the law enforcement sector”. These are the words of P. Michou, chief negotiator in charge of the negotiation process of the so called EU-US “Umbrella Agreement”, who gave a public overview on the lately finalized transatlantic data protection framework in the field of law enforcement cooperation. The speech, delivered during the last meeting of the LIBE committee of the European Parliament, has met a warm welcome by the MEPs. Great congratulations have been expressed by all the political groups, for the work done by the negotiating team of the Commission that, from its side, has thanked the LIBE committee for its strong support and pressures. As Mrs. Michou said, they “helped us to be stronger in our negotiations”. Negotiations that were dealt with a partner that is far from being an easy one. The words of Michou, however, have not completely reassured all the MEPs, who have called for a legal opinion on the text of the agreement to be delivered by the legal department of the European Parliament. Legal certainties about the potential benefits or detrimental effects that this agreement could have on the existing EU data protection rules, as well as on past and future agreements, have been asked by the majority of the deputies, as a necessary precondition for the vote.

Historical context

An EU-US agreement in the field of protection of personal data was already called by the European Parliament in the year 2009. At that time, in a resolution on the state of transatlantic relation, the Parliament underlined the necessity of a “proper legal framework, ensuring adequate protection of civil liberties, including the right to privacy”, to be agreed on the base of a binding international agreement. The Commission then, on the invitation of the European Council, proposed a draft mandate for starting the negotiations with the United States, on a high standard system of data protection. The final mandate, being adopted by the Council in December 2010, opened the negotiation procedure among the two partners, that formally started on March 2011.

The negotiations have been though, mainly because of a great cultural difference existing among the two partners in terms of data protection, but after four years of work, the agreement has been initialed in Luxembourg, last September 8th. The final text, that can be signed only with the authorization of the Council and the consent of the Parliament, represents a huge step forward: “if we look back to some years ago, it was clear that some of the issues that have been now achieved in the text, couldn’t even have been theoretically possible”, Jan Philippe Albrecht (Greens/EFA) said, by opening the debate after Mrs. Michou speech.

The european Commissioner for Justice, Consumers and Gender Equality, Věra Juorová, by declaring full satisfaction for the conclusion of the discussions, affirmed: “robust cooperation between the EU and the US to fight crime and terrorism is crucial to keep Europeans safe. But all exchanges of personal data, such as criminal records, names or address, need to be governed by strong data protection rules. This is what the Umbrella Agreement will ensure.”

Terrorism or organized crime are phenomena that definitely constitute serious threats to security. However, leaving aside the narrow concept of security, as many theories and authors consider nowadays, a threat to security can be identified as any threat to the “cherished values” of our society: thus also to those values such as the right of privacy and the data protection.

The issue concerns how security and law enforcement are able to positively and constructively interact with new technology, but also to clash with it.

On one side, the information and data sharing is now a fundamental and crucial aspect of policy and judicial inter-state cooperation, since major threats and criminal phenomena have assumed a transnational connotation. On the other side however, it is necessary to ensure the protection and the fair and limited treatment of information, that is transferred as part of the transatlantic cooperation in criminal matters, in order to avoid abuses and the setting up of mass surveillance systems.

The two transatlantic partner, have already settled a substantial framework of data transfer rules. In 2010 they signed an agreement on the processing and transfer of financial messaging data from the EU to the US, for the purposes of the Terrorist Finance Tracking Program (TFTP); while in 2012 they concluded a bilateral agreement for the exchange of PNR (Passenger Name Records) data.

“Data protection is a fundamental right of particular importance in the digital age. In addition to swiftly finalizing the legislative work on common data protection rules within the European Union, we also need to uphold this right in our external relations.” This principle was included by Jean-Claude Juncker in the political priorities of the European Commission agenda, presented in July 2014.

A look inside the “Umbrella Agreement” Continue reading “The EU-US Umbrella agreement on Data Protection just presented to the European Parliament. All people apparently happy, but….”

The Italian Job: the CJEU strengthens criminal law protection of the EU’s finances (Comment to ‘Taricco’ Case)

ORIGINAL PUBLISHED ON EU LAW ANALYSIS

by  Steve Peers

The stereotype of fraud against the EU budget is a sleazy EU official in Brussels receiving manila envelopes stuffed full of bribe money, spending his ill-gotten gains to ensure that his lavish lifestyle becomes ever more decadent. But according to the EU’s annual reports on such fraud, the typical offender is actually rather different: it’s an individual or company who finds ways to get hands on EU money being spent by the Member States, since they are largely in charge of the day-to-day management of EU spending. Furthermore, not all the breaches concern EU spending: some concern the reduction of EU income, for instance by avoiding the customs duties which apply to many goods coming from third countries.

Agreeing and enforcing EU-wide rules for such behaviour has long been a challenge. But in its recent judgment in Taricco, the Court of Justice has made a major effort to strengthen the law in this field.

Background

The CJEU ruled back in the 1980s (in the Greek maize judgment) that Member States could not simply ignore fraud against the EU budget, but had to take effective measures to stop it. This rule was later added to the Treaties, and now forms Article 325 TFEU, which reads in part as follows:

  1. The Union and the Member States shall counter fraud and any other illegal activities affecting the financial interests of the Union through measures to be taken in accordance with this Article, which shall act as a deterrent and be such as to afford effective protection in the Member States, and in all the Union’s institutions, bodies, offices and agencies.
  2. Member States shall take the same measures to counter fraud affecting the financial interests of the Union as they take to counter fraud affecting their own financial interests.

As regards criminal law, the current legal rules on the topic date back to 1995, and were adopted in the form of an international Convention (the ‘PFI Convention’) between the Member States, which came into force in 2002. This treaty applies to all Member States except for Croatia (although the Commission has just proposed its application to that State), and the UK – which was initially a party but no longer has legal obligations to apply the Convention since it opted out of many pre-Lisbon criminal law measures as from 1 December 2014 (on that process, see further here). Among other things, the PFI Convention obliges all Member States to impose criminal sanctions for serious cases of fraud against the EU budget.

The Commission proposed a Directive to replace the Convention in 2012, and this is currently in the late stages of negotiation between the Council and the European Parliament (for an update, see here; on the legal basis, see here). It’s evident that one of the main issues remaining in the negotiations is whether the proposed Directive should apply to VAT fraud, given that a small amount of VAT revenue goes to the EU budget. The Commission and the European Parliament argue that it should, while the Council argues against, presumably because the far larger part of the losses from VAT fraud affects national budgets, not the EU budget. There are other issues in the proposed legislation, such as a more precise possible penalty for fraud, and a rule on ‘prescription’ periods (ie the time limit after which a prosecution can no longer be brought or continued).

The proposed Directive is closely connected to another piece of proposed EU legislation: the Regulation establishing the European Public Prosecutor’s Office (EPPO). That’s because the EPPO will have jurisdiction only over EU fraud, and so it’s necessary to have a definition of that concept. (On the defence rights aspects of the EPPO proposal, see discussion here); for an update on negotiations, see here). And the EPPO Regulation is in turn linked to a third legislative proposal: the Regulation refounding Eurojust, the EU’s agency for coordinating national prosecutions. That’s because there will be close links between Eurojust and the EPPO, and so the Eurojust Regulation can’t be finalized before the EPPO Regulation is agreed. (The Council has agreed all of the Eurojust Regulation except for the bits relating to EPPO links: see the agreed text here. This will still have to be negotiated with the European Parliament, however).

Judgment

The recent CJEU judgment in Taricco concerns alleged VAT fraud against a national budget, and in particular the question of prescription periods. Italian rules on the breaks in prescription periods mean few cases involving VAT fraud are ever seen through to completion, since time simply runs out during the proceedings.  A frustrated Italian court therefore asked the CJEU whether these national rules infringed the economic law of the EU: namely the rules on competition, state aids, economic and monetary union and the main VAT Directive.

According to the CJEU, the national law does not infringe EU competition law, because inadequate enforcement of criminal law does not as such promote cartels. It does not infringe state aid law, because the Italian government was not waiving tax obligations as such. Furthermore, it does not infringe monetary union rules, since it was not closely enough linked to the obligation to maintain sound public finances.

That left the VAT Directive. In fact, that Directive sets out the scope of VAT (ie which goods and services have to be taxed), but does not include any rules on criminal law issues. The Court therefore assumed that the national court was asking it questions about EU law more generally, and proceeded to interpret Article 325 TFEU and the PFI Convention. According to the Court, building on the previous case law such as Fransson, there was not only an obligation pursuant to the VAT Directive and Article 325 TFEU to take effective measures in general against VAT fraud to defend the EU budget, there was also a specific obligation to criminalise such activity, where it was ‘essential to combat certain serious cases of VAT evasion in an effective and dissuasive manner’. This was consistent with obligations under the PFI Convention; the Court confirmed that the Convention applied to VAT fraud, despite the absence of express provisions to this effect under the Convention. Given the size of the alleged fraud in this case (several million euros), it had to be considered serious.

Furthermore, the Court ruled that the operation of the limitation periods in Italian law infringed Article 325 TFEU. A limitation period was not objectionable as such, but national law made it effectively possible to prosecute offences because the way in which it calculated breaks in the prosecution. Also, the national law infringed the principle of equality set out in Article 325, since other national laws on similar types of economic crime did not contain the same problematic rules on calculation of breaks.

The Court then ruled on the consequences of this breach of EU law. In the Court’s view, the national court has to disapply the relevant national law. This obligation was based on Article 325 TFEU, which sets out precise and unconditional rules on effective and equal protection of the EU’s financial interests. So the ‘precedence’ (ie, primacy or supremacy) of EU law required national law to be disapplied.

Finally, the CJEU dismissed a human rights objection to its ruling. While Article 49 of the EU Charter of Fundamental Rights does ban the retroactive application of more stringent criminal penalties than those in force when a crime was committed, the CJEU ruled (following the case law of the European Court of Human Rights on the equivalent Article 7 ECHR) that a limitation period was distinct from a substantive criminal offence. The acts which the defendants were accused of committing were undoubtedly criminal offences in national law at the time of their alleged commission, so there was no retroactivity of criminal law in the sense prohibited by the Charter.

Comments

“You were only supposed to blow the bloody doors off!” This classic quote from The Italian Job aptly summarises the CJEU’s approach to the relationship between national law and EU law in this judgment. Asked only to rule on the interpretation of EU economic law, the Court decided instead to strengthen the constitutional foundations of EU law in the criminal field.

Substantively, the Court’s judgment is significant because it extends EU criminal law obligations to VAT fraud. This is, in the Court’s view, a pre-existing obligation not only in the PFI Convention, but also in the TFEU itself. To overturn it, Member States would therefore have to amend the Treaty, not just the Convention (in the form of the proposed Directive). Also, Member States’ obligations extend not only to criminalisation of serious cases of VAT fraud, but to prescription (and so potentially other procedural issues) as well.  So if Member States (in the Council) do insist on excluding VAT from the scope of the EU fraud Directive, that would have limited impact. Indeed, the Council Presidency has already asked Member States if there is any point maintaining their opposition on this point after the Taricco judgment.

Presumably the Court’s rulings on prescription and criminalisation apply to other forms of EU fraud too. This means that including prescription rules in the Directive (as all of the EU institutions are willing to do) simply confirms the status quo – although the final Directive will likely be more precise on this issue than the CJEU’s ruling. Furthermore, since the Taricco judgment could help to unblock talks on the PFI Directive, this could have a knock-on effect on the negotiations on the EPPO and Eurojust.

Moreover, the Court’s ruling limits the effect of various opt-outs. Ireland and Denmark have opted out of the proposed Directive, but will remain bound by the PFI Convention; the UK has opted out of both. But they remain bound by the Court’s interpretation of the Convention (for Ireland and Denmark) and the Treaty (for all three Member States). This has limited practical impact, as long as national law remains compliant (assuming that it is already compliant) with these measures as interpreted by the Court. While the UK is no longer free to decriminalise fraud against the EU budget, it was never likely to use that ‘freedom’ anyway, particularly as regards VAT fraud, where the main loss would be to the British government’s revenue, not the EU’s.

More fundamentally, the Taricco judgment strengthens the constitutional foundations of criminal law obligations in the EU legal order. While this may only be relevant for EU fraud cases, the Court has already broadened that concept to include VAT fraud. In such cases, there is an obligation for national courts to disapply incompatible national law as regards the procedural aspects of criminal proceedings. Conversely, there is no obligation to disapply incompatible substantive national criminal law, since this would lead to a breach of Article 49 of the Charter.

The ruling is based on the legal effect of the Treaties – the Court does not rule on the legal effect of the ‘third pillar’ Convention. It sets out a test for primacy similar to the test for direct effect (the Court refers to the precise and unconditional nature of the rules in Article 325 TFEU). It is not clear how this rule fits into the EU’s overall constitutional architecture – as a clarification of the general rules or as a special rule relating to protection of the EU’s financial interests. But in any event, the Taricco judgment is a significant contribution toward strengthening the EU’s role in this particular field.

 

EU Anti-Money Laundering legal framework: the race has started again…

by Dalila DELORENZI (FREE Group Trainee)

After two years, the revision of the new EU Anti-Money Laundering (AML) framework has finally come to an end. The 20th May the European Parliament at its second reading has adopted the Fourth Directive AML  (Directive (EU) 2015/849) along with the new Regulation on information on the payer accompanying transfers of funds (Regulation (EU) 2015/847).

The revision was triggered by the necessity to adapt the legal framework to counter new threats of money laundering and terrorist financing and to reflect recent changes due to revised Financial Actiont Task Force (FATF)  Recommendations. In the following lines the new legal framework is presented by including some crucial measures which could represent a real step-up in the fight against money laundering, financing terrorism and tax evasion.

  1. Introduction of an European register of beneficial ownership

The creation of an European register of beneficial ownership has been one of the sticking point and the reason why the text has attracted much more political attention than the latest directives and the negotiations have taken much longer than it was expected.

1.1 Definition of beneficial ownership and the problems caused by “phantom firms”

A beneficial owner  is a natural person – a real, live human being and not another company or trust – who stands behind a company (or trust) as the ultimate owner and controller, directly or indirectly exercising substantial control over the company or receiving substantial economic benefits (such as receipt of income) from the company. If the true owner’s name is disguised, we deal with “anonymous companies”. In a majority of countries, keeping unknown the true owner’s name is perfectly legal and there is typically no requirement to disclose that the names listed are merely front-people.

Such anonymous companies can be created by using “nominees”, people who front the company in place of the true owner, or by incorporating one or more of the companies in a country which does not make details of the beneficial owners publicly available. Also called “phantom firms”, they exist only on paper, with no real employees or office.

Now, it’s certainly true that such entities can also have legitimate uses, but the untraceable company can also be a vehicle of choice for crimes such as money laundering, tax evaders and financier of terrorism.

1.2 The role of anonymous companies in money laundering

Although there are countless ways to launder money, money laundering can be broken down into three stages:

  • Placement: the initial entry of illicit money into the financial system. This might be done by breaking up large amounts of cash into less conspicuous smaller sums that are then deposited directly into a bank account.
  • Layering: the second step consists in the process of separating the funds from their source. This purpose is often followed by using anonymous shell companies: for instance, wiring money to account owned by anonymous shell company.
  • Integration: money re-enter the legitimate economy. For instance, by investing the funds into real estate and luxury assets.
  • That being said, it is clear that these secretive “shell” companies and trusts play a central role in laundering and channelling funds, concealing behind a veil of secrecy the identity of corrupt individuals and irresponsible businesses involved in activities, including tax evasion, terrorist financing, and the trafficking of drugs and people. More precisely, it is impossible for law enforcement officials go back to the real individuals ultimately responsible for the company’s actions and to track the origin of illicit funds.
  • 1.3 The importance of central registers

Continue reading “EU Anti-Money Laundering legal framework: the race has started again…”

EU-USA “UMBRELLA” AGREEMENT ON DATA PROTECTION: A …LEAKY UMBRELLA ?

Posted HERE on 18. September 2015

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On 8 September 2015, the European Commission announced the successful completion of the negotiations with the US on a framework agreement („Umbrella Agreement“), that shall apply to the co-operation between law enforcement authorities. „Once in force, this agreement will guarantee a high level of protection of all personal data when transferred between law enforcement authorities across the Atlantic. It will in particular guarantee that all EU citizens have the right to enforce their data protection rights in US courts“, said the competent EU Commissioner Věra Jourová. Prerequisite for the signing of the agreement will be, however, that the US Congress will have approved the necessary legislative changes („Judicial Redress Bill“).

Although the Commission initially did not want to publish the agreement, the text – however – has found it’s way into the Internet, enabling the assessment.

First the good news: The agreement contains, in fact, substantial concessions from the US side. It has to be highlighted, that the US shall even provide EU citizens with a right to seek judicial redress if they are of the opinion that their privacy rights have been violated in the context of processing information the respective US authorities have received from the EU. Over years, the US government insisted on granting EU citizens only administrative redress. For Europe such limited redress – ultimately depending on the goodwill of the US administration – would not have provided an adequate level of data protection.

Another positive aspect is that both sides have agreed to commit to the principles of proportionality, necessity and purpose limitation and that they have to determine the use and duration of storage of personal information in accordance with these principles. The concrete purposes of data processing and the retention periods have to be determined by the specific legal acts.

However, although the agreement improves the legal status of EU citizens whose data are transferred to the US, it would be a misperception that the agreement provides EU citizens with the same privacy rights as US persons. If this would have been intended, the rights provided by US Privacy Act of 1974 and other laws, currently limited to US citizens and residents, could have been extended to EU citizens. Instead, the agreement text contains complicated rules, which do not ensure equality in the result. EU citizens have first to seek administrative redress. They may call a US court only after administrative redress definitely was exhausted. In addition, administrative and judicial redress are limited to those privacy rights explicitly specified in the Agreement, as the right to access and correction of the personal information. The agreement will not grant EU citizens – unlike US citizens – further rights to challenge the lawfulness of the entire process of data processing before a US court.

Furthermore, it should be noted that the agreement shall apply only to judicial and police authorities, but not to authorities with the task to guarantee the „national security“. US intelligence agencies like the NSA and the CIA share personal data with law enforcement agencies, even if they have received these information from their European partners. The provisions of the umbrella agreement would not apply in these cases. Last but not least the agreement does not cover data US and European authorities collect on the basis of national laws, i.e. the Foreign Intelligence Surveillance Act (FISA) or similar European legislation.

Another limitation of the umbrella: While according to the European data protection law, all personal data will be protected regardless of the nationality of the persons concerned, the agreement should apply only to data on EU citizens which have been transferred to the US by European authorities or companies based on bilateral or multilateral agreements. So data relating to citizens of third countries remain unprotected.

Finally, the agreement (Art. 21) falls short, however, with regard to the data protection oversight. It lacks an explicit commitment of both parties to ensure an independent data protection supervision. While the European Union commits that the independent data protection authorities shall be competent to check the provisions, the agreement refers with respect to the United States on a variety of oversight institutions, some of them not independent, which are to exercise the supervision of data protection „cumulatively“.

Given these shortcomings, to me the exultation of the agreement seem premature. The European legal bodies which need to approve the ratification of the agreement, in particular the European Parliament and the parliaments of the Member States are called upon to thoroughly examine the agreement, in particular, its compatibility with the provisions of the EU Charter of Fundamental Rights. Depending on the results of such assessment it might be necessary to renegotiating and caulking the umbrella.

 

The impact of the EU law on Italian criminal procedure law in investigations on EU fraud

ORIGINAL IN ITALIAN.

(Translated by Dalila Delorenzi, FREE-Group Trainee)

by Andrea Venegoni (*)

A reflection on the issue of the influence of European law on procedure criminal law may  instinctively lead to think of the most recent developments in case law at European level that have affected and are affecting also the typical categories of the Italian procedural system.

As an example, the issue of “res judicata” can be taken into account. It is common opinion that its binding effect is gradually eroding as a result of transposition in the internal system of jurisprudential principles established by the European Courts (e.g the cases Dorigo or Scoppola ). Another example may come from the “ne bis in idem” principle which is gradually coloring of meanings that were unthinkable a few years ago, also thanks to the role of supranational courts.

But, to be honest, if that had been the subject of my speech, the same would not be fully consistent with the title of the seminar that refers specifically to the influence of the EU law on the domestic criminal procedure law.  Indeed in the above mentioned evolutions the ECHR system – which as it is known, is something other than the European Union system – has played and still plays a fundamental role. In this case, therefore, the title of the seminar should have referred to the “European” law in general and not just that of the EU.

I therefore focused my attention on EU law and its impact on criminal investigations in fraud matters within the Community, not only for formal reasons, because it was the specific scope of the seminar, but also for another more substantial reason.

More precisely, all legislative and jurisprudential developments occurred in criminal law and its procedure by supranational European legal systems are substantially aimed at creating a common space of justice, with a view to recognise guarantees, common rights and for the purposes of a better circulation of evidence. If this is true, it does exist an area, a sector, where this process has been already realised or, at least, realised in a better way than elsewhere.

This is precisely the field of protection of the EU financial interests. In this sector, since the late ‘90s the European Union has put in place a series of legislative instruments to assist the investigations, and in particular the cross-border enquiries, and at the same time to protect the rights of the people involved, with no equal compared to any other field. As such, if the European Union is informed by the will to create, among other issues, also a common space of justice, both criminal and civil – as said in the founding treaty (i.e. Maastricht Treaty, 1992) – then we may affirm that, since more than 16 years, this purpose has been largely achieved, with specific modalities, in the field of the protection of EU’s financial interests (hereinafter “PIF Area”), even if just few legal practitioners have realised it.

This was because the PIF sector has always been essential to the existence of the Union and for the accomplishment of its purposes. Without effective protection of its own finances, the Union might not have the necessary funds not only to manage its administration, but also to grant them to the States or other beneficiaries. Indeed this is necessary for the realization of the great goals the Union intends achieving – sometimes with mixed success – Europe wide and worldwide, such as social cohesion and economic development, the progress of scientific research, environmental protection, the fight against poverty in third countries.

Therefore, the protection of its resources has always been essential for the Union, and since the conducts affecting such interest may constitute both irregularities at the administrative level, and criminal offenses, the relevant legislation at European level has always unfolded in between the so called First and Third Pillar in the European institutional framework after the Maastricht Treaty. In simple words, the First Pillar covered interventions in the Union’s own policies that did not concern the criminal law; the Third Pillar, on the contrary, was just about facilitating the judicial cooperation in criminal law.

Nevertheless, before going any further, it has to be clarified what the so called “PIF Area” is, to fill of content concepts that otherwise risk to be only theoretical. For the purpose of this presentation, also to avoid getting into technicalities of the Union’s Financial Regulation, with a view to simplifying it may be easier to refer to the Union budget sheet items. Indeed, since the early 70s, the Union has a budget with their own revenues and expenditures.

Revenues consist in customs duties and agricultural levies charged on import and export of goods (the so-called own resources),  a percentage of each EU country’s standardised value-added tax revenue and an additional sum provided by the Member States proportionally to each respective gross national income. Therefore every kind of conduct tending to avoid the payment and collection of duties and agricultural levies affects the EU financial interests. In our system, such conducts constitute the criminal offence of smuggling. Equally, the conducts aiming at evading the VAT payment are harmful for the EU budget. This category includes, for example, the so-called VAT  carousel fraud, which still today are matter of interest for several Italian prosecutor offices, like they have been in the recent years.

Actually, the issue of VAT is very sensitive and it is necessary, for sake of providing with a complete information, to mention that according to an opinion that is strengthening at the level of the Member States, and partly also of the European Parliament, in the negotiations on legislative proposals under way, such tax would be exclusively national, and only indirectly of Union relevance, and for this reason it should be considered outside the PIF area (1). However it must be said that this view is contradicted, for example, in the case law of the Court of Justice that has even recently stated that the application of VAT involves the Union’s financial interests (see Akberg Fransson case C-617/10). Continue reading “The impact of the EU law on Italian criminal procedure law in investigations on EU fraud”

Passenger Name Records, data mining & data protection: the need for strong safeguards

EXCERPTS FROM EXPERTS’ OPINION SUBMITTED TO THE COUNCIL OF EUROPE (PUBLISHED ON THE STATEWATCH SITE)

by Douwe KORFF and Marie GEORGES (FREE-Group Members)

Introduction

Much has been said and written about Passenger Name Records (PNR) in the last decade and a half. When we were asked to write a short report for the Consultative Committee about PNR, “in the wider contexts”, we therefore thought we could confine ourselves to a relatively straightforward overview of the literature and arguments.

However, the task turned out to be more complex than anticipated. In particular, the context has changed as a result of the Snowden revelations. Much of what was said and written about PNR before his exposés had looked at the issues narrowly, as only related to the “identification” of “known or [clearly ‘identified’] suspected terrorists” (and perhaps other major international criminals). However, the most recent details of what US and European authorities are doing, or plan to do, with PNR data show that they are part of the global surveillance operations we now know about.

More specifically, it became clear to us that there is a (partly deliberate?) semantic confusion about this “identification”; that the whole surveillance schemes are not only to do with finding previously-identified individuals, but also (and perhaps even mainly) with “mining” the vast amounts of disparate data to create “profiles” that are used to single out from the vast data stores people “identified” as statistically more likely to be (or even to become?) a terrorist (or other serious criminal), or to be “involved” in some way in terrorism or major crime. That is a different kind of “identification” from the previous one, as we discuss in this report.

We show this relatively recent (although predicted) development with reference to the most recent developments in the USA, which we believe provide the model for what is being planned (or perhaps already begun to be implemented) also in Europe. In the USA, PNR data are now expressly permitted to be added to and combined with other data, to create the kinds of profiles just mentioned – and our analysis of Article 4 of the proposed EU PNR Directive shows that, on a close reading, exactly the same will be allowed in the EU if the proposal is adopted.

Snowden has revealed much. But it is clear that his knowledge about what the “intelligence” agencies of the USA and the UK (and their allies) are really up to was and is still limited. He clearly had an astonishing amount of access to the data collection side of their operations, especially in relation to Internet and e-communications data (much more than any sensible secret service should ever have allowed a relatively junior contractor, although we must all be grateful for that “error”). However, it would appear that he had and has very little knowledge of what was and is being done with the vast data collections he exposed.

Yet it is obvious (indeed, even from the information about PNR use that we describe) that these are used not only to “identify” known terrorists or people identified as suspects in the traditional sense, but that these data mountains are also being “mined” to label people as “suspected terrorist” on the basis of profiles and algorithms. We believe that that in fact is the more insidious aspect of the operations.

This is why this report has become much longer than we had planned, and why it focusses on this wider issue rather than on the narrower concerns about PNR data expressed in most previous reports and studies.

The report is structured as follows. After preliminary remarks about the main topic of the report, PNR data (and related data) (further specified in the Attachment), Part I discusses the wider contexts within which we have analyzed the use of PNR data. We look at both the widest context: the change, over the last fifteen years or so, from reactive to “proactive” and “preventive” law enforcement, and the blurring of the lines between law enforcement and “national security” activities (and between the agencies involved), in particular in relation to terrorism (section I.i); and at the historical (immediately post-“9/11”) and more recent developments relating to the use of PNR data in data mining/profiling operations the USA, in the “CAPPS” and (now) the “Secure Flight” programmes (section I.ii).

In section I.iii, we discuss the limitations and dangers inherent in such data mining and “profiling”.

Only then do we turn to PNR and Europe by describing, in Part II. both the links between the EU and the US systems (section II.1), and then the question of “strategic surveillance” in Europe (II.ii).

In Part III, we discuss the law, i.e., the general ECHR standards (I); the ECHR standards applied to surveillance in practice (II, with a chart with an overview of the ECtHR considerations); other summaries of the law by the Venice Commission and the FRA (III); and further relevant case-law (IV).

In Part IV, we first apply the standards to EU-third country PNR agreements (IV.i), with reference to the by-passing of the existing agreements by the USA (IV.ii) and to the spreading of demands for PNR to other countries (IV.iii). We then look at the human rights and data protection-legal issues raised by the proposal for an EU PNR scheme. We conclude that part with a summary of the four core issues identified: purpose-specification and –limitation; the problem with remedies; “respect for human identity”; and the question of whether the processing we identify as our main concern – “dynamic”-algorithm-based data mining and profiling – actually works.

Part V contains a Summary of our findings; our Conclusions (with our overall conclusions set out in a box on p. 109); and tentative, draft Recommendations. (…)

Conclusions Continue reading “Passenger Name Records, data mining & data protection: the need for strong safeguards”

Les lourdes chaînes de Prométhée, réflexions critiques sur la Stratégie européenne de sécurité intérieure 2015 – 2020

ORIGINAL PUBLISHED HERE ON  23 JUIN 2015

par Pierre Berthelet, CDRE

Le Professeur Panayotis Soldatos comparait il y a peu l’Union européenne à Prométhée enchaîné par les Etats membres. Ces réflexions mettant en évidence une construction européenne dépendante des États, « dont les élites politiques, écrit-il, se refusent à admettre la réalité de l’obsolescence de la souveraineté nationale », s’illustrent parfaitement avec l’adoption par le Conseil de la stratégie européenne de sécurité intérieure pour la période 2015-2020.

À première vue, la sécurité intérieure vient de franchir un pas supplémentaire dans l’intégration avec l’approbation par le Conseil le 16 juin 2015, de conclusions renouvelant et modernisant pour cinq années à venir la stratégie 2010-2014. Pour autant, il semble bien que les chaînes soient pesantes, car les États conservent la main, et de main ferme pourrait-on dire, le processus d’intégration dans ce domaine.

Ces conclusions entraînent une série de réflexions critiques quant aux conséquences institutionnelles et quant à la manière dont les États décident d’œuvrer dans la construction européenne en matière de sécurité intérieure.

Elles suscitent d’emblée des interrogations concernant l’inclusion du Parlement européen dans le processus décisionnel lié au déroulement du cycle, ainsi que sur la préservation accrue des droits fondamentaux (1).
Continue reading “Les lourdes chaînes de Prométhée, réflexions critiques sur la Stratégie européenne de sécurité intérieure 2015 – 2020”

Les lourdes chaînes de Prométhée, réflexions critiques sur la Stratégie européenne de sécurité intérieure 2015 – 2020

ORIGINAL PUBLISHED HERE ON 23 JUIN 2015

par Pierre Berthelet, CDRE

Le Professeur Panayotis Soldatos comparait il y a peu l’Union européenne à Prométhée enchaîné par les Etats membres. Ces réflexions mettant en évidence une construction européenne dépendante des États, « dont les élites politiques, écrit-il, se refusent à admettre la réalité de l’obsolescence de la souveraineté nationale », s’illustrent parfaitement avec l’adoption par le Conseil de la stratégie européenne de sécurité intérieure pour la période 2015-2020.

À première vue, la sécurité intérieure vient de franchir un pas supplémentaire dans l’intégration avec l’approbation par le Conseil le 16 juin 2015, de conclusions renouvelant et modernisant pour cinq années à venir la stratégie 2010-2014. Pour autant, il semble bien que les chaînes soient pesantes, car les États conservent la main, et de main ferme pourrait-on dire, le processus d’intégration dans ce domaine.

Ces conclusions entraînent une série de réflexions critiques quant aux conséquences institutionnelles et quant à la manière dont les États décident d’œuvrer dans la construction européenne en matière de sécurité intérieure.

Elles suscitent d’emblée des interrogations concernant l’inclusion du Parlement européen dans le processus décisionnel lié au déroulement du cycle, ainsi que sur la préservation accrue des droits fondamentaux (1). La stratégie ne fait pas véritablement l’impasse sur ces deux questions, car elle les mentionne en soulignant l’importance de ces problématiques. Cependant, l’observateur ne peut que demeurer sur sa faim quant aux modes d’inclusion du Parlement européen, et à la manière dont les droits fondamentaux ont vocation à être davantage pris en compte, alors que le Conseil semble précisément se focaliser davantage sur la sécurité que sur la liberté. Cette stratégie pour la période 2015-2020, justifiée par la permanence des menaces, voire leur accroissement, en premier lieu, le terrorisme et la grande criminalité organisée (p. 2 des conclusions du Conseil du 16 juin), est qualifiée par le Conseil de « globale et réaliste » (p. 5). Son adoption mérite d’être saluée à ce titre, car elle confère une certaine cohérence à une action qui dépasse les frontières de l’espace de liberté, de sécurité et de justice, pour comprendre des thématiques telles que la gestion de crise, la protection des infrastructures critiques et la cybersécurité. Pour autant, en l’examinant de plus près, cette stratégie pour la période 2015-2020 n’apparaît pas exempte de toutes critiques. Il est vrai qu’elle est bien plus précise concernant les priorités fixées par la stratégie précédente qui avait, par exemple, érigé la « lutte contre la violence en elle-même » en un objectif de sécurité de l’Union.

En revanche, elle l’est moins que le plan d’action venant compléter cette stratégie de 2010 et ce, en raison de l’ambiguïté des objectifs fixés par la stratégie européenne pour la période 2015-2020 (2). Il est même possible de considérer que la stratégie de 2015 est de moins bonne facture que la précédente, car il s’agit à la fois d’un document opérationnel, mais qui n’en est pas réellement un, et d’un document stratégique, mais qui n’en est pas réellement un non plus. De prime abord, elle se positionne à mi-chemin entre d’une part, des conclusions des 4 et 5 décembre 2014 qui énoncent les grands principes, et d’autre part, un plan d’action destiné à lister des mesures concrètes. Néanmoins, sa portée se révèle être bien plus opérationnelle que stratégique, car le plan d’action à venir, visant à mettre en œuvre cette stratégie censée, comme son nom le laisse supposer, être un document de nature stratégique, est réduit à la portion congrue (3).

Si le positionnement de la stratégie est complexe sur le plan normatif, il l’est beaucoup moins sur le plan conceptuel dans la mesure où la stratégie de 2015 demeure, comme celle de 2010, très empreinte d’une idéologie de la sécurité globale (4). Elle révèle certes, le peu d’audace de la part du Conseil concernant les avancées en matière de sécurité, reflétant le double discours habituel des États, très volontaires dans les déclarations d’intention, mais beaucoup moins dans la concrétisation de celles-ci. En revanche, elle suscite des interrogations quant aux relations qu’entretiennent la sécurité intérieure et l’espace pénal européen et ce, en raison de la place faite à la doctrine relative à la sécurité globale (5). L’un et l’autre se construisent de manière séparée et même dans l’ignorance mutuelle. La stratégie révèleà ce propos un monde de la sécurité (police, douane, garde-frontières) dont l’horizon d’action est davantage marqué par une collaboration avec celui de la sécurité et de la défense, qu’avec celui de la justice.

1. Une impasse sur le Parlement européen et sur les droits fondamentaux ?

Continue reading “Les lourdes chaînes de Prométhée, réflexions critiques sur la Stratégie européenne de sécurité intérieure 2015 – 2020”

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.

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