Category: 8.2 Judicial cooperation in criminal matters

WORTH READING : the final text of the EUROPEAN BORDER AND COAST GUARD REGULATION

The text below is the final version of the EU Regulation on the European Border and Coast Guard as revised by the Jurist Linguists of the EU institutions. Formally adopted this week as a “corrigendum” by the European Parliament and by written procedure by the Council it will be published on the Official Journal in the coming weeks. Presented, negotiated and adopted in extremely short time ([1]) under the pressure of the European Council the new EU Regulation on the European Border and Coast Guard could be seen at the same time a main evolutionary step and a revolutionary one in the relation between the EU and its Member States in the freedom security and justice area. 

Even if the main subject of the text is the border management it covers also directly and indirectly other EU policies such as refugee law, international protection, migration and even internal and external security. Not surprisingly  such an ambitious objective was difficult if not impossible to achieve in such a short time and several commentators and representatives of the civil society have already considered (see Peers , Carrera [1], Rijpma [2], and, more recently, De Bruycker [3])  that the text on one side does not deliver what it announces and on the other side is still rooted in an old intergovernamental model. Maybe from a legistic point of view instead of bringing all these objectives in a single legislative text it would had been more elegant to focus its content only on the organisational and operational aspect of the “new” Frontex  and deal with the general framework of the integrated EU border management in the Schengen Border Code where general rules on the definition, negotiation adoption and implementation would had been better placed together with the rules on its evaluation and on the adoption of extraordinary measures in case of emergency. However these have probably been considered by the Commission legal niceties to be dealt with in times with less political pressure.. 

With so many objectives it is not surprising that the final result is far from the expectations and the text is somewhere still elusive and somewhere too detailed. It can then be interesting to  compare the negotiation position of the three institutions as it result from a very interesting Multicolumn document leaked by Statewatch during the “confidential” legislative trilogies. It shows that the European Parliament has tried to improve the original Commission proposal and has obtained some concessions from the Council but regrettably, it had lost the main targets such as the definition in codecision of the European Border Strategy (instead of a simple decision of the Agency’s Management Board) and even on the procedure to appoint of the Agency Director where its position will be to express an opinion …which can be disregarded.

Further comments will follow. EDC

 

[1] See the CEPS study of Sergio Carrera and Leonhard den Hertog “A European Border and Coast Guard: What’s in a name?”

[2] See Jorrit RIJPMA study for the Civil Liberties Committee of the EP “The proposal for a European Border and Coast Guard: evolution or revolution in external border management?”

[3] See Philippe DE BRUYCKER “The European Border and Coast Guard: A New Model Built on an Old Logic”

 

It is the latest (and quite likely not the last) of a chain of legal texts by which the EU has tried in the recent years to legally frame the issue of human mobility and human security in the EU by taking in account the new legal framework after the entry into force of the Lisbon Treaty and of the EU Charter of fundamental rights.

[1] A rather detailed and updated collection of the legislative preparatory works can be found here :  https://free-group.eu/2016/06/10/wiki-lex-the-new-eu-border-guard-proposal/

[2] As as verified by the Jurist Linguist and endorsed by the EP according to art 231 of its Rules of procedure)

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REGULATION (EU) 2016/…OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of … on the European Border and Coast Guard and amending Regulation (EU) 2016/399 of the European Parliament and of the Council and repealing Regulation (EC) No 863/2007 of the European Parliament and of the Council, Council Regulation (EC) No 2007/2004 and Council Decision 2005/267/EC

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty on the Functioning of the European Union, and in particular Articles 77(2)(b) and (d) and Article 79(2)(c) thereof,

Having regard to the proposal from the European Commission,

After transmission of the draft legislative act to the national parliaments,

Having regard to the opinion of the European Economic and Social Committee1,

Acting in accordance with the ordinary legislative procedure2,

Whereas: Continue reading “WORTH READING : the final text of the EUROPEAN BORDER AND COAST GUARD REGULATION”

Extradition to non-EU countries: the limits imposed by EU citizenship

ORIGINAL PUBLISHED ON EU LAW ANALYSYS 

Steve Peers

One of the best-known EU laws created the European Arrest Warrant (EAW), which replaced the prior rules governing extradition between Member States. But on the other hand, in principle EU law has nothing to do with extradition to non-EU countries, except where the EU has agreed a treaty on this issue (as it has with the USA and Norway and Iceland), or as regards asylum-seekers (the EU’s asylum procedures law limits their extradition to their country of origin, because it’s necessary to determine first if the country which seeks to prosecute them is in fact persecuting them).

Yesterday’s CJEU judgment in Petruhhin altered this legal position. EU law does apply to such issues, and the Court clarified some relevant issues while leaving others open. Furthermore, the judgment raises the question of future UK/EU relations on extradition following Brexit.

Background

Extradition between the EU and non-EU countries is governed by a combination of national law and bilateral and multilateral treaties – most notably the Council of Europe Convention on Extradition, which has been ratified by all 47 European countries plus three non-EU countries. There are four further Protocols to this Convention, which have been ratified by fewer States.

A key feature of extradition law is that in principle most States will not extradite their own citizens, although within the EU, the EAW law has overruled any absolute ban on surrendering nationals as between Member States. While the refusal to extradite citizens could run a risk of impunity if those citizens commit criminal offences in another country, most States avoid that risk by extending their criminal jurisdiction to cover acts of their citizens committed outside their territory. In fact many EU laws and international treaties require States to assert such extraterritorial jurisdiction as regards specific transnational crimes.

The EAW law says a little about possible conflict between EAWs and extradition requests from third countries. It states simply that in the case of such a conflict, the national authority should decide which takes priority ‘with due consideration of all the circumstances’, including the relevant treaty and ‘the relative seriousness and place of the offences’, the relevant dates of the requests and whether the extradition request or EAW aims to obtain custody of a fugitive for trial or to serve a sentence already imposed.

This compares with the original proposal for the EAW law, which always gave priority to an EAW if the extradition request came from a country which was not party to the Council of Europe Convention. That clause was dropped following intensive lobbying from the US government, while the law was being negotiated in autumn 2001 (the EAW law was largely motivated by the 9/11 terrorist attacks, although it is not limited to terrorist offences).

Judgment

The Petruhhin case concerned an Estonian citizen sought by the Russian government for prosecution for organised crime offences. He was safe from extradition to Russia as long as he stayed in Estonia, since that country will not extradite its nationals outside the EU. But at one point he was arrested in Latvia, which decided to implement the Russian request. While Latvia also refuses to extradite its own citizens outside the EU, an Estonian citizen prima facie obviously cannot rely on that protection.

So Mr Petruhhin tried to rely on his transnational form of citizenship instead, arguing that since he was an EU citizen in another Member State, he was entitled to equal treatment with Latvians – therefore protecting him from extradition from Latvia to Russia, just like them. (Logically if his argument had worked, he would also be protected from extradition from any other Member State which refuses to extradite its own citizens to Russia).

The CJEU ruled first of all that the despite the absence of EU law on this issue, the dispute fell within the scope of EU free movement law, since Mr Petruhhin was exercising free movement rights. Therefore he had a right to equal treatment with nationals of Latvia in principle. However, a breach of that equality right could be justified on the grounds of avoiding impunity from prosecution for alleged criminal offences: Latvia, like most States, extends its criminal jurisdiction to cover acts of its own citizens abroad, but not the acts of citizens of other countries abroad. This distinction between the position of Latvians and citizens of other Member States can justify different treatment as regards protection from an extradition request.

Having said that, the Court added a crucial rider. To limit the effect of its ruling upon free movement rights (the proportionality principle), it ruled that Latvia has to contact the Estonian authorities first, to see if they wish to prosecute him there on the basis of theirextraterritorial jurisdiction, before handing him over to Russia. That’s an important proviso, as many people believe they are more likely to be treated fairly in the courts of their own State. At any rate, this likely means they will have access to defence and court proceedings in their own language, with any pre-trial detention closer to friends and family.

Finally, the Court stated that any extradition to Russia was subject to the ban on torture or other inhuman or degrading treatment set out in Article 4 of the EU Charter of Fundamental Rights, which transposes the standards set out in Article 3 ECHR and the relevant case-law of the European Court of Human Rights on this issue. That means that if there’s a real risk of such treatment in Russia, the fugitive cannot be extradited there in any case. It should be noted that the Charter equally bans extradition to face the death penalty.

Comments

First of all, the Court was correct to assert the link between EU free movement law and extradition to third States, although its rather abstract reasoning could be improved upon. The best argument supporting this part of the ruling is rather that Mr Petruhhin would have been deterred from leaving Estonia for another Member State if he ran a risk of being extradited to Russia every time he left the country.

Next, would EU law also apply to cases where a Member State considers extraditing itsown citizen to a non-EU country? The question may not arise often, since as noted already, many Member States don’t do this at all. But where they do, logically the case law on citizenship of the European Union (as distinct from free movement applies). As developed since the Zambrano judgment, this prevents citizens of their own Member State from being forced outside the EU in principle, as they are thereby deprived of EU citizenship. But logically the same limits apply by analogy: extradition of citizens can be justified on grounds of preventing immunity, but that is qualified if the extraditing State subjects its own citizens to prosecution for acts committed abroad (most do, as noted already).

Third, could there be other grounds justifying extradition to a non-EU state, besides preventing impunity? This isn’t clear from the judgment. But logically the judgment would apply by analogy to cases where a fugitive has already been sentenced to a term of imprisonment. In such cases, Latvia (say) would contact Estonia to see if the latter country could take over the punishment imposed by Russia, pursuant to the Council of Europe treaty on the transfer of prisoners or another relevant international treaty.

Could there be further grounds preventing extradition to a non-EU state, besides the Charter ban on the death penalty and torture et al, and the priority for EAWs? For instance, what if the person concerned has already been tried in a Member State, or in a third State? The EU has a cross-border ban on double jeopardy, but it only applies to Member States and Schengen associates, not to countries like Russia and the USA. Extradition treaties sometimes address this issue, but don’t always cover every double jeopardy scenario. A pending case before the CJEU should clarify this issue.

Next, logically the ruling would also apply by analogy if a third Member State could apply its jurisdiction: say an Estonian in Latvia was wanted by Russia but could potentially be prosecuted or serve a sentence in France, due to an [alleged] assault against a Russian citizen in France, or a French citizen in Russia. (Some countries assert criminal jurisdiction where one of their citizens was a victim of crime).

This brings us to the issue of conflict between an EAW and an extradition request from a non-EU state. The CJEU didn’t have to comment on this issue in its judgment, because no EAW had been issued yet. But the Court’s judgment necessarily means that there is more likely to be such a conflict in future, if Estonia indeed issues an EAW. And if that happens, the new judgment implies that the open-ended conflict rule in the EAW has to give way to the primary law of the Treaties: so the Estonian EAW has to take precedence over the Russian extradition request. The Court has in effect enshrined priority for EAWs over (almost) all non-EU extradition requests, whereas the original Commission proposal, as noted above, would have given such priority only over extradition requests from non-Council of Europe states. Perhaps the Americans should also have lobbied the Court of Justice.

But then, the USA has its own extradition deal already with the EU, as noted at the outset. (The deal with Norway and Iceland has not been ratified yet). The Court says several times in its judgment that the general rules it elaborates here are without prejudice to extradition treaties concluded between the EU and third countries. Presumably it can interpret the EU/USA treaty, since it can interpret any treaties which the EU signs with non-EU states. In fact, there’s a pending case before the CJEU which asks the Court to interpret this very treaty.

Brexit?

This judgment is probably relevant for Brexit. The UK government has recently hintedthat it will seek some continuation of criminal law cooperation with the EU. There will be transitional issues with EAWs pending on Brexit Day, which the EU/UK withdrawal treaty concluded under Article 50 TEU will hopefully address. In fact there are already possible complications arising from Brexit in this area, as there are several challenges in Irelandto the execution of UK EAWs on the grounds that Brexit is coming. The CJEU may well be called on to address these issues even before Brexit Day.

For the position after Brexit, it’s undoubtedly possible for the EU to conclude an extradition arrangement with the UK, as the Court’s judgment actively encourages the EU to sign such treaties. In fact, the judgment might arguably be the basis of an argument for EU exclusive competence over extradition treaties with non-EU countries, on the basis that any Member State agreements would affect the operation of the EAW law, at least as regards EU citizens. That would mean that the UK could no longer sign extradition deals with individual EU countries, but only with the EU as a whole.

If no deal were reached, the UK and EU could fall back on the Council of Europe extradition Convention. But as I have noted before, this would mean far less extradition (and much slower extradition) as compared to the EAW.

If there were a UK/EU deal, Member States may still want to refuse to extradite their own citizens to the UK, as they have under the treaty with Norway and Iceland. But even if they are willing to extradite them to the UK, on whatever treaty basis, it may be arguable on the basis of the new judgment that they can’t, as long as the fugitive can be tried or serve her sentence in the remaining EU. And although the UK can still assist an EU Member State in prosecuting its own citizens, that will be far more expensive for the UK authorities than trying the person in the UK.

EU Referendum Brief 5: How would Brexit impact the UK’s involvement in EU policing and criminal law?

ORIGINAL PUBLISHED ON EU LAW ANALYSIS

by Steve Peers

What impact does EU membership have on policing and criminal law in the UK – and what would be the impact of Brexit? I’ll give the shorter summary version of the answer to those questions first, followed by a longer more detailed version.

Summary

The UK had a veto over EU laws in this area adopted before the Treaty of Lisbon came into force (1 December 2009). Since then, it has had two opt-outs instead: a) it can opt in (or out) of any new EU law in this field adopted after that Treaty; and b) it could go back and opt out of any old EU laws which were adopted before that Treaty. The UK used the latter power to opt out of the majority of pre-Lisbon laws.

There are five main areas of EU criminal law and policing. One area is the definition of crime, where the UK has opted into a small number of EU laws on issues such as child abuse. A second area is criminal procedure, where the UK has opted into some EU laws on suspects’ rights and crime victims’ rights. These are basically domestic areas of law, and there’s no reason to think the UK would change its rules after Brexit.

However, the other three areas concern international cooperation, where it is impossible for any individual country to act alone. Those areas are: a) recognition of criminal decisions (on arrest warrants or gathering evidence, for instance); b) the exchange of police information; and c) EU agencies like Europol, the EU police intelligence agency.

On criminal law mutual recognition, there are other international rules on some of these issues – such as extradition – but they do not go as far as the EU rules. In some cases, there are no alternative international rules on the same issue. The UK could seek to negotiate a treaty with the EU on these issues, but the past precedents show that non-EU countries are able to negotiate only limited participation in these EU laws.

On EU agencies, non-EU countries can participate as associates, but this means a more limited involvement in each agency than they would have as EU Member States.

The UK’s involvement in police information exchange with the EU would also be subject to renegotiation if the UK left the EU. Again, past precedents show that non-EU countries are able to negotiate only limited participation in these EU laws. And if the UK did not continue to sign up to EU data protection laws fully, there would be difficult legal disputes that could limit the transfer of policing data to the UK’s law enforcement authorities from the EU.

It cannot be seriously argued that the UK has ‘lost control’ over its law enforcement and intelligence agency operations to the EU, given the UK’s opt-out, the focus of EU law on cross-border issues, and the lack of any EU law on intelligence issues.

Overall, a Brexit is very likely to lead to a significant reduction on cooperation in criminal and policing matters between the UK and the EU.

The details

First and foremost, while the EU has adopted a number of laws in this area, the UK only participates in some of those laws, and has an opt-out over future laws in this area too. This blog post will in turn: (a) describe the basics of EU law in this area, including the UK opt-out; (b) summarise the main EU laws in which the UK does (or does not) participate in; and (c) indicate what could happen in the event of ‘Brexit’. For a full academic treatment of these issues, see the fourth edition of my EU Justice and Home Affairs Law book (volume 2).

(a) The basics of EU policing and criminal law 

Before the entry into force of the Treaty of Lisbon (on 1 December 2009) police and criminal law matters were subject to a different legal framework from ordinary EU (or European Community) law. The powers of the EU institutions (Commission, European Parliament, EU Court) were more limited, and each Member State, including the UK, had a veto over all laws.

The Treaty of Lisbon repealed these special rules, bringing EU criminal and policing law into the general framework of EU law. From this point on, the usual rules of EU law have applied to this field, with a few exceptions. However, the key point for the UK is that in place of a veto, it got not just one but twoopt outs from EU law in this field.

First, the UK can opt out of (or into) any individual EU laws on criminal law or policing proposed after the entry into force of the Treaty of Lisbon.

Secondly, the UK got the power to opt out of EU criminal laws which it had already agreed to before the entry into force of the Treaty of Lisbon. It could invoke this power as of 1 December 2014. The UK government used this to opt out of all but 35 of the EU criminal laws adopted before the Treaty of Lisbon. (See the discussion of that process here).

(b) Which EU criminal and policing laws does the UK apply?

EU criminal and policing law touches on five main issues:

(a)    substantive criminal law (ie the definition of crimes);
(b)   mutual recognition in criminal matters (ie applying another EU Member States’ criminal law decision, where there is a cross-border issue like gathering evidence in another EU country, or asking another country to hand over a fugitive to face a trial or serve a sentence);
(c)    harmonisation of criminal procedure;
(d)   exchange of police information; and
(e)   EU agencies.

The effect of the two sets of opt-outs is that the UK has been highly selective about the EU law in this area which it wishes to apply. Taking the five areas of law in turn, first of all the UK has opted out of almost all EU substantive criminal law. It is covered by the EU Directives adopted since the Lisbon Treaty defining offences relating to trafficking in persons, sexual abuse of children and attacks on information systems (a form of cyber-crime), but not by EU laws defining offences relating to terrorism, organised crime, fraud, drugs, market abuse by bankers, racism, or currency counterfeiting.

Secondly, the UK is far more engaged in mutual recognition in criminal matters, in particular the flagship law on the European Arrest Warrant (EAW), which is a fast-track extradition system. The UK has also signed up to EU laws on:

(a)    mutual recognition of investigation orders (gathering physical evidence, or interviewing witnesses, in another EU country);
(b)   victim protection orders (where the victim of domestic violence moves to another EU country and wants a restraining order against her abuser to be transferred to that country when she moves there);
(c)    pre-trial supervision (so a criminal suspect can be released on bail to await trial on less serious offences back in Britain, rather than spend a long time in pre-trial detention in a foreign prison);
(d)   confiscation of assets and freezing orders (to ensure that the proceeds of crime held by alleged or convicted criminals in another EU country can be frozen pending trial, and seized if the suspect is convicted);
(e)   the effect of prior sentences or other judgments (so that previous criminal offences committed in another EU country are counted when assessing whether someone is a repeat offender); and
(f)     the transfer of prisoners and criminal sentences (simplifying the movement of foreign prisoners to jails in their EU country of origin, and recognizing fines imposed by a criminal court too – including any penalties imposed against companies for breach of criminal law).

Conversely, the UK has opted out of only one measure in this field, concerning the mutual recognition of probation and parole orders.

Thirdly, as regards the harmonisation of criminal procedure, the UK participates in the EU Directiveon crime victims’ rights. However, the UK has only opted in to two of the six EU laws which set out criminal suspects’ procedural rights. In particular, it has opted into the laws on translation and interpretation, and giving suspectsinformationon their rights; but it has opted out of laws on access to a lawyer,presumption of innocence, child suspects’ rights, and a proposed law on legal aid(not yet agreed).

Fourthly, the UK is particularly keen to participate in the exchange of police information. It participates in every significant measure in the field:

(a)    the Schengen Information System (information on wanted persons and stolen objects, including terrorist suspects under surveillance);
(b)   the Customs Information System (used particularly in drug trafficking cases);
(c)    the ‘Prum’ decisions (which give access to other EU countries’ police databases on fingerprints, licence plates and DNA); and
(d)   the laws on exchange of criminal records.

Finally, as regards EU agencies, the UK participates in Europol(the EU police intelligence agency) and Eurojust (the agency which coordinates work of prosecutors in cross-border cases) at present. However, it has opted out of a new law concerning Europol, and a proposed new EU law concerning Eurojust, which set out (or would set out) revised rules for those agencies following the entry into force of the Treaty of Lisbon, although it might decide to opt in to those Regulations after they are adopted. The UK used to host the European Police College (a training agency), but refusedto continue hosting it and opted out of a new version of the relevant law.

There has been some concern particularly about the prospect of the UK participating in a law to create a European Public Prosecutor. While the EU Commission proposeda law to create a European Public Prosecutor in 2013, the UK has opted out of that proposal. Indeed, the UK would have to hold another referendum before it opted in to that law, according to the European Union Act 2011.

(c) What would the impact of ‘Brexit’ be?

It’s sometimes argued that EU laws on policing and criminal law are irrelevant to the UK’s membership of the EU, because the UK can simply do everything it wishes to do in this field in its domestic law. That’s a valid argument for two of the five areas of law described above: substantive criminal law and harmonisation of procedure. But it doesn’t work for the three other areas – mutual recognition, exchange of information and participation in EU agencies – which necessarily require some cooperation with other states. Put simply, a British Act of Parliament cannot regulate how France or Germany issue extradition requests.

What would happen if the UK left the EU? In each case, as with other areas of EU law and policy, it would depend on what the UK and EU negotiated afterward. But it is possible to give some general indication of the consequences.

In the area of mutual recognition, the UK can fall back on Council of Europe treaties, which address some of the same issues (note that the Council of Europe is a separate body from the EU, which includes non-EU European countries like Turkey and Russia; some of its treaties can be signed also by non-European states like the USA).

However, the relevant treaties do not go into as much detail as the EU laws, and are often less effective.  As an indication of this, see the UK governmentinformationabout the application of EU law in this area. Extradition from the UK has gone from 60 people a year (to all countries) before 2004 to 7000 since 2004 on the basis of the European Arrest Warrant. Over 95% of those sent to other Member States are not British.

Moreover, in some cases the UK and/or some other Member States have not ratified the relevant treaties. For instance, fewer than half of all Member States have ratified the Council of Europe Convention on validity of criminal judgments; the UK has not ratified it either. But the EU law on mutual recognition of criminal penalties sets out rules on one of the key issues in that Council of Europe treaty: the recognition of criminal financial penalties imposed by another Member State’s court. Some issues have not been the subject of Council of Europe treaties at all, such as the pre-trial supervision rules set out in EU law. In these cases, the EU law is the only means of ensuring the cooperation in question.

Another alternative is to negotiate treaties with the EU on these issues.  The EU has been willing in practice to negotiate access to some aspects of its criminal law measures: a form of the EAW for Norway and Iceland, an extradition treaty with theUSA, and mutual assistance (exchange of evidence) with Norway and Iceland, theUSAand Japan. But the extradition treaty with Norway and Iceland took years to negotiate, is still not in force at time of writing, and does not oblige States to extradite their own citizens – meaning that the UK would not be able to ask Germany to extradite Germans, for example. That restriction cannot easily be negotiated away in the event of Brexit, because some EU countries have constitutional problems which prevent them extraditing their own citizens outside the EU. (On these sorts of issues, see E Guild, ed, Constitutional challenges to the European Arrest Warrant).

Overall, there are no such treaties agreed with any non-EU countries on the large majority of EU criminal law mutual recognition measures. Of the treaties which are agreed, not a single one goes as far as the relevant EU legislation in force.

A particular concern of critics of the EU rules on extradition is the ‘sufficient evidence’ (‘prima facie’) test which was traditionally applied by the UK before accepting an extradition request. While it is sometimes argued that the EAW abolished the ‘prima facie’ test as regards EU countries, this is not correct. In fact, the UK waived the right to apply this test to European countries when it signed up to the Council of Europe extradition treaty back in 1990, over a decade before it signed up to the EU’s EAW: see the Extradition Act 1989, section 9(4), which was implemented by the European Convention on Extradition Order 1990 (SI 1990 No. 1507). In other words, the test was not abolished because of EU law, but was already abolished well before the EU had any involvement in extradition law.

Why did the UK abolish the prima facie test? As noted in the 2011 Baker review of UK extradition law, the decision was made because of the difficulties it posed for extradition in practice: a White Paper of 1986 stated that it ‘did not offer a necessary safeguard for the person sought by the requesting State but was a formidable impediment to entirely proper and legitimate extradition requests’. Ultimately the Baker review recommended that there was ‘no good reason to re-introduce the prima facie case requirement’ where it had been abolished, and that ‘No evidence was presented to us to suggest that European arrest warrants are being issued in cases where there is insufficient evidence’.

The prima facie test is sometimes described as an aspect of the ‘presumption of innocence’, although in fact a fugitive who is extradited pursuant to this test still either has to be convicted pursuant to a trial in the requesting State, or has already been convicted but fled the country. In other words, the presumption of innocencestill applieswhen the substantive criminal trial takes place (or took place).

As regards the EU agencies, the UK can enter into agreements to cooperate with Europol and Eurojust, like other non-EU countries. However, as the Director of Europol points out, such agreements don’t allow the UK to have direct access to databases, to lead investigation teams, or to take part in the management of those agencies: both Europol and Eurojust have had British Directors.

Finally, as regards policing, the EU has given some non-EU states access to theSchengen Information System, and to the ‘Prum’ rules on access to each Member State’s national policing databases. But this was linked to those countries fully joining the Schengen system. The UK would obviously not do that after a Brexit.

The EU has also signed treaties on the exchange of passenger name records with non-EU countries (the USA, Canada and Australia), as well as a treaty on the exchange of financial information (concerning alleged terrorists) with the USA, so might be willing to sign similar treaties with the UK. It has also recently agreed an ‘umbrella’ treaty on general exchange of police information with the USA, although this is not yet in force.

However, the EU has not extended access to its system on exchange of criminal records to any non-EU countries. While there is a Council of Europe treaty on mutual assistance in criminal matters (which the UK and all other Member States are party to) that provides for some exchange of information of such records, it results in far less information exchange. The exchange of criminal records is particularly important for the UK: the government has reportedthat the UK is one of the biggest users of the EU system, and that criminal records checks of foreign nationals in the criminal justice system have increased 1,650% since 2010.

However, there is a particular issue that has complicated the exchange of personal data between the EU and with non-EU countries, particularly as regards policing data. Are their data protection standards sufficient as compared to the standards maintained by the EU? If not, then the European Parliament may be reluctant to approve the deal, or it might be challenged in the EU Court. This isn’t a hypothetical possibility – it has happened several times already.

I have discussed this issue in more detail in a recent blog post for The Conversation, but I will summarise the main points there again.

As regards deals between non-EU countries and the EU itself, the EU Court of Justice has struck down a Commission decision on the transfer of personal data to the USA, because there was insufficient examination of the data protection standards applied by US intelligence agencies as regards access to personal data on social media. A replacement deal is planned, but will also be challenged in court. A further case is pending, where the EU Court has been asked to rule on the legality of the most recent EU/Canada treaty on the exchange of passenger records data, to ascertain if it meets EU standards for data protection.

If the UK left the EU, any UK/EU agreement on the transfer of personal data would have to meet the same requirements. Those requirements cannot simply be negotiated away, since they stem from the EU Charter of Rights – part of the primary law of the EU. The Charter can be amended, but to have legal effect the EU Treaties would also have to be amended to refer to that revised text. It is hard to believe this could happen at the behest of a country which has just left the EU.

Would UK legislation meet the test of being sufficiently similar to EU standards? The Court of Justice has been asked in the pending Davis and Watson case whether the rules on police access to personal data comply with the EU law that binds the UK as a Member State. Another Bill on this issue is pending before the UK Parliament, and would likely become an Act of Parliament before Brexit. Since many privacy campaigners are critical the draft Bill, there would almost certainly be similar legal challenges to transfers of personal data to and from the UK after Brexit, unless the UK agrees to continue fully applying EU data protection law.

(d) Arguments by the referendum campaigns

The official leaflet summarising the position of the two sides in the referendum campaign contains a number of relevant claims from each side. For the Remain side, the pamphlet says that the EAW ‘allows us to deport criminals from the UK and catch those fleeing justice across Europe’, and that EU membership helps to tackle ‘global threats like terrorism’. For the Leave side, the pamphlet says that the EU ‘will continue to control…vital security policies such as counter-terrorism’ and the EU Court ‘will keep taking powers over how our intelligence services fight terrorism’.

Are these claims valid? As for the first Remain claim, as noted above the statistics show that the number of persons extradited to and from the UK have indeed increased since the EAW has been applied – although some extradition would still take place even if the UK did not apply the EAW.

In light of the official UK government information referred to above, other operational cooperation via Europol and other forms of EU police and criminal law cooperation presumably has some impact on combating threats like terrorism and other serious crimes in practice. However, it is not possible to estimate their impact compared to purely national actions and other forms of international  cooperation.

As for the arguments by the Leave side, it is clear from the description of the laws which the UK applies that the EU does not ‘control…vital security policies’. The functioning of the UK law enforcement authorities is up to the UK, and there is no EU regulation of intelligence agencies. EU law impacts only cross-border issues.

As we have seen, the only EU case law to date impacting intelligence agencies concerns non-EUintelligence agencies. The ruling restricts transfers of data gathered by social networks to those non-EU countries in that context, unless those countries apply EU data protection law. If the UK left the EU, it would therefore be subject to the same restrictions on obtaining personal data in criminal cases from the EU. Leaving the EU is therefore more likely to impede UK intelligence agencies’ work, than it is to facilitate it.

Conclusion

The UK’s participation in EU criminal and policing law has led to an increase in cooperation in areas such as extradition and the exchange of police information. In these cases, there are question marks about what would happen after Brexit – mainly political but to some extent legal too. In the event of Brexit, there is a very high likelihood that cooperation between the UK and the remaining EU would be reduced (although not to zero). And in light of the UK’s opt-outs and the limited effect of EU law on purely domestic matters, it cannot seriously be argued that UK law enforcement and intelligence agencies are ‘controlled by’ the EU.

Meijers comments on the proposed reforms of Dublin, Eurodac and of the new Asylum Agency

ORIGINAL PUBLISHED ON THE MEIJERS COMMITTEE SITE (*)

Comments on the Dublin recast proposal  (COM (2016) 197)

  1. General observations

The Meijers Committee would like to take this opportunity to comment on the proposed reform of the Dublin Regulation, as set forth in the 6 April 2016 EC communication to the EP and Council (COM (2016) 197) and the 4 May 2016 proposal for a regulation of the EP and Council establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person (recast) (COM (2016) 270). The later proposal will be further referred to here as Dublin III recast.

On page 4 of the 6 April 2016 communication, the Commission succinctly lists the shortcomings of the Dublin regulation: “difficulties in obtaining and agreeing on evidence proving a Member State’s responsibility for examining the asylum application, leading therefore to an increase in the number of rejections of requests to accept the transfer of applicants. Even where Member States accept transfer requests, only about a quarter of such cases result in effective transfers, and, after completion of a transfer, there are frequent cases of secondary movements back to the transferring Member State. The effectiveness of the system is further undermined by the current rules which provide for a shift of responsibility between Member States after a given time. […] A further impediment to the effective functioning of the Dublin system results from the difficulty in transferring applicants to Member States with systemic flaws in critical aspects of their asylum procedure or reception conditions. The effective suspension of Dublin transfers to Greece since 2011 has proved a particularly critical weakness in the system. […] The Common European Asylum System is also characterized by differing treatments of asylum seekers, including in terms of the length of asylum procedures or reception conditions across Member States, a situation which in turn encourages secondary movements.”

The Meijers Committee wishes to add that Dublin’s ineffectiveness not only results from the difficulty of effectuating transfers but also from a general failure to initiate Dublin procedures, because asylum seekers have not been registered upon entering the EU. It is well known, not only that asylum seekers may seek to avoid registration, but that some Member States also disregard their obligation to register asylum seekers – some even on a large scale. It has been estimated, for example, that only half the persons entering Italy and applying for asylum somewhere in the EU were registered in that country1 In 2014, the proportion of physical Dublin transfers to the number of applicants for international protection in the EU was about 4 %, which suggests that Dublin is applied in far fewer cases than all those to which it is in fact applicable.2

To remedy these shortcomings, the Commission proposes two options:

  1. Supplementing the present system with a corrective fairness mechanism, or
  2. A new system for allocating asylum applications in the EU based on a distribution key.

Because the second option would be difficult to envisage in the short or medium term, the Commission has chosen to pursue the first one.

The Meijers Committee would first of all like to point out that none of the shortcomings listed by the Commission will be remedied by the first option, since it is essentially a continuation of the present Dublin system, which is demonstrably a failure. Why continue with a broken system instead of fixing the shortcomings, even though this may not produce significant results in the short term? Additionally, the Meijers Committee points to the fact that the Dublin regulation was only very recently recast (19 July 2013), so this recast has been undertaken within 3 years of the entry into force of the last recast regulation, while that recast came 10 years after the entry into force of the Dublin II regulation.

The Meijers Committee points out that at present there are two infringement procedures ongoing with regard to the Dublin regulation (in respect of Italy and Hungary), as well as four infringement procedures regarding the closely related Eurodac regulation (in respect of Croatia, Greece, Italy and Cyprus). Additionally, the Commission has recently sent a second supplementary letter to Greece expressing concerns over the persistence of serious deficiencies in the Greek asylum system, as well as a 10 February 2016 recommendation.

The belief that the Dublin system allocates responsibility unsustainably is widely held and is mentioned on page 3 of the explanatory memorandum to the Dublin III recast proposal. It is no coincidence that the infringement procedures mentioned above concern Member States on the EU’s external borders. These Member States have for a long time complained that they cannot process the large numbers of asylum seekers entering the EU through their territories. While the suggested corrective fairness mechanism can go some way to remedy this situation, it will not change the fact that it is these Member States who will bear the brunt of new arrivals. The corrective fairness mechanism will not be triggered until a Member State has received 150% of the maximum allocated number of applications deemed fair on the basis of that State’s GDP and population size. This only partly corrects disproportionate burden sharing, without addressing the fundamental shortcomings of the Dublin system, namely that this system wrongly presupposes that the asylum procedures are adequate and up to standard in all Member States. On the contrary, Member States still continue to display systemic deficiencies, which make Dublin transfers impossible. As has been accepted by the ECtHR in several recent judgments, there are significant national differences in the quality of reception and asylum systems, which continue to exist and which encourage secondary movements.3 Additionally, the Commission must take stock of the fact that its similar attempt of September 2015 at such a mechanism has so far not been successful: of the 160,000 asylum-seekers who should have been relocated, only 1,500 (909 from Greece and 591 from Italy) have been relocated.

The proposals under Dublin III recast do very little to address this unsustainable burden sharing, focusing instead on the risk of abuse of the rules laid down in the Dublin III regulation by individual asylum seekers, including their absconding.

  1. Detailed observations

Continue reading “Meijers comments on the proposed reforms of Dublin, Eurodac and of the new Asylum Agency”

Detecting foreign fighters: the reinvigoration of the Schengen Information System in the wake of terrorist attacks

ORIGINAL PUBLISHED ON “EU IMMIGRATION AND ASYLUM LAW AND POLICY”

By Niovi Vavoula, Queen Mary, University of London

Since the past two decades, the exploitation of new technologies and the emphasis on collecting and exchanging information have been key aspects of the EU counter-terrorism strategy. An array of information exchange schemes have been developed on the basis of an intelligence-led approach, according to which the more data available, the more efficient the policies may be (for an overview of EU information exchange mechanisms see here).

The aim of the present blog post is to assess the role of the Schengen Information System (SIS) in the fight against the growing phenomenon of the “Foreign Fighters”. Landmarks in this context are, apart the terrorist events of 9/11 and the Madrid bombings in 2004, the recent attacks in Paris in January and November 2015 as well as in Brussels on 22 March 2016. It is demonstrated the extent to which the functionalities and the potential of the SIS have been slowly revisited in the wake of events with limited progress up to date. Despite the growing overreliance to this system has not been accompanied by proven effectiveness, the EU legislator calls for further exploitation of the database at the expense of fundamental rights and EU citizenship. The Commission proposal amending the Schengen Borders Code regarding the control of the crossing of external borders by foreign fighters should finally make the system effective but it could violate the principle of proportionality.

The SIS II in a nutshell

At the heart of the compensatory measures for the abolition of internal border controls, the SIS was established under the Schengen Convention and came into operation in 1995. Its overarching purpose was twofold; to maintain public order and security and to apply the provisions of the Convention relating to the movement of persons in the Schengen Area. On the criminal law side, it held basic alphanumeric data categorised in the form of ‘alerts’ on people or objects wanted for criminal law and policing purposes, such as persons wanted for arrest to be surrendered/extradited or missing persons. On the immigration law side, which in practice dominated the content of the database, it stored data on third-country nationals to be refused entry to the Schengen area. The system functioned on a hit / no hit basis, but it was supplemented by the SIRENE, which provided the infrastructure for exchanging additional information between national authorities.

Since April 2013, the SIS has been substituted by the SIS II so as to accommodate the new Member States after the enlargements of 2004 and 2007 and insert new functionalities. In this context, the current legal framework of the SIS II comprises of Regulation 1987/2006 involving the immigration functions of the system, Council Decision 2007/533/JHA regarding its use for policing and criminal law purposes and Regulation 1986/2006 concerning access by vehicle registration authorities. The overarching purpose of ensuring a high level of security remains the same, albeit worded more broadly.

First round: new functionalities of the SIS after 9/11 and Madrid bombings  Continue reading “Detecting foreign fighters: the reinvigoration of the Schengen Information System in the wake of terrorist attacks”

Art.19 of the EU Charter (Protection in the event of removal, expulsion or extradition). Interesting Conclusions of AG Yves BOT.

Original published here

OPINION OF ADVOCATE GENERAL Yves BOT delivered on 10 May 2016 (1)

Case C‑182/15 Aleksei Petruhhin

(Request for a preliminary ruling from the Augstākā tiesa (Supreme Court, Latvia)) (Request for a preliminary ruling — Citizenship of the European Union — First paragraph of Article 18 TFEU and Article 21(1) TFEU — Request for the extradition to Russia of a national of one Member State present on the territory of another Member State — Refusal of a Member State to extradite its own nationals — Difference in treatment on the ground of nationality — Whether justified — Combating impunity — Verification of the guarantees provided for in Article 19(2) of the Charter of Fundamental Rights of the European Union)

  1. Extradition may be defined as an international mutual assistance enforcement procedure whereby one State asks another State to surrender to it a person on the territory of the latter State in order to be prosecuted and tried or, if he has already been convicted, in order to serve his sentence.
  2. The present case concerns an extradition request issued by the Russian Federation to the Republic of Latvia in relation to an Estonian national who had been arrested on the territory of the Republic of Latvia.
  3. In essence, the Court is asked to rule on whether the protection against extradition which Latvian nationals enjoy under national law and under a bilateral agreement with the Russian Federation must, under the rules of the FEU Treaty on citizenship of the Union, be extended to nationals of other Member States.
  4. A number of Member States, including the Republic of Latvia, recognised, in their national law and also in the international conventions to which they are parties, the principle that they refuse to extradite their nationals. When an extradition request is addressed to a Member State and that request concerns a citizen of the Union who is not a national of the requested Member State, such a principle establishes a difference in treatment between the nationals of that State and the nationals of the other Member States. I am of the view, however, that such a difference in treatment does not constitute discrimination on the ground of nationality contrary to the first paragraph of Article 18 TFEU, provided that it is shown that those two categories of nationals are not in a comparable situation in the light of the objective of combating the impunity of persons suspected of having committed an offence in a third State.

I –  Legal framework

A –    EU law

  1. Article 19 of the Charter of Fundamental Rights of the European Union, (2) entitled ‘Protection in the event of removal, expulsion or extradition provides, in paragraph 2:

‘No one may be removed, expelled or extradited to a State where there is a serious risk that he or she would be subjected to the death penalty, torture or other inhuman or degrading treatment or punishment.’

B –    Latvian law

  1. The Latvian Constitution provides in the third sentence of Article 98:

‘A citizen of Latvia may not be extradited to a foreign country, except in the cases provided for in international agreements ratified by the Saeima (Latvian Parliament) if by the extradition the basic human rights specified in the Constitution are not violated.’

  1. Under Article 4 of the Krimināllikums (criminal law, ‘the Latvian Criminal Law’):

‘1.      Latvian citizens, Latvian non-citizens [ (3)] and foreign nationals who have a permanent residence permit for Latvia shall be held liable, in Latvian territory and in accordance with the present Law, for an offence committed in the territory of another State or outside the territory of any State, irrespective of whether it is recognised as an offence and punishable in the place in which it was committed.…

  1. Foreign nationals who do not have a permanent residence permit for Latvia and who have committed serious or very serious offences in the territory of another State which have been directed against the interests of the Republic of Latvia or the interests of its inhabitants shall be held criminally liable in accordance with this Law irrespective of the laws of the State in whose territory the offence was committed if they have not been held criminally liable or faced criminal proceedings in application of the laws of the State in which the offence was committed.
  2. Foreign nationals who do not have a permanent residence permit for Latvia and who have committed a criminal offence in the territory of another State or outside any national territory shall, in the cases provided for in international agreements binding on the Republic of Latvia, be held liable in accordance with this Law irrespective of the laws of the State in whose territory the offence was committed if they have not been held criminally liable for such offence or faced criminal proceedings in respect of that offence in the territory of another State.’
  3. Chapter 66 of the Kriminālprocesa likums (code of criminal procedure, ‘the Latvian Code of Criminal Procedure’), entitled ‘Extradition of a person to a foreign State’, provides in Article 696(1) and (2):

‘(1)      A person who is present in the territory of the Republic of Latvia may be extradited for the purpose of criminal proceedings, trial, or the execution of a judgment, if a request has been received from a foreign State for the temporary detention or the extradition of that person and the facts are characterised as a criminal offence under Latvian law and the law of the foreign State.

(2)      A person may be extradited for the purpose of criminal proceedings or trial in respect of an offence the commission of which is punished by imprisonment for a maximum term of not less than one year or by a more severe penalty, unless an international treaty provides otherwise.’

  1. Article 697(2) of the Latvian Code of Criminal Procedure is worded as follows:

‘Extradition shall not be granted if:

(1)      the person concerned is a Latvian citizen;

(2)      the request for the extradition of the person concerned has been made with the aim of commencing criminal proceedings against him or punishing him on the ground of race, religious beliefs, nationality or political views, or if there are sufficient grounds for believing that his rights may be infringed on the abovementioned grounds;…

(7)      the person concerned may be tortured in the foreign State.’

  1. The Agreement of 3 February 1993 between the Republic of Latvia and the Russian Federation on Judicial Assistance and Judicial Relations in Civil, Family and Criminal Matters provides, in articles 1 and 62:

‘Article 1: Legal protection

  1. As regards personal and economic rights, the nationals of one of the Contracting Parties present in the territory of the other Contracting Party shall enjoy in that territory the same legal protection as the nationals of the other Contracting Party.
  2. The nationals of one of the Contracting Parties shall be entitled to access freely and without hindrance the courts, the office of the Public Prosecutor and notarial offices … and other institutions of the other Contracting Party with competence for civil, family and criminal matters, they may bring proceedings, submit requests, lodge appeals and carry out other procedural acts before those bodies on the same terms as nationals of that other Contracting Party.…

Article 62: Refusal of extradition

  1. Extradition shall not be granted if:

(1)      the person whose extradition is requested is a national of the Contracting Party to which the request is addressed or if he has obtained refugee status in that State.…’

  1. The Agreement between the Republic of Latvia, the Republic of Estonia and the Republic of Lithuania on Judicial Assistance and Judicial Relations, signed at Tallinn on 11 November 1992, provides in Article 1(1):

‘As regards personal and economic rights, the nationals of one of the Contracting Parties present in the territory of the other Contracting Party shall enjoy in that territory the same legal protection as the nationals of the other Contracting Party.’

II –  Facts of the main proceedings and questions for a preliminary ruling

  1. Mr Aleksei Petruhhin, an Estonian national, was made the subject of a priority Red Notice on Interpol’s website on 22 July 2010.
  2. Mr Petruhhin was arrested on 30 September 2014 in the town of Bauska (Latvia), then placed in provisional custody on 3 October 2014.
  3. On 21 October 2014, the Latvian authorities received an extradition request from the Office of the Prosecutor-General of the Russian Federation. It is apparent from that request that criminal proceedings were initiated against Mr Petruhhin by decision of 9 February 2009 and that Mr Petruhhin ought to have been placed in custody as a security measure. According to that decision, Mr Petruhhin is accused of attempted large-scale drug-trafficking in criminal association. Under Russian law, that offence is punishable with a term of imprisonment of between 8 and 20 years.
  4. The Public Prosecutor of the Republic of Latvia authorised Mr Petruhhin’s extradition to Russia. However, on 4 December 2014 Mr Petruhhin filed an appeal against the extradition decision, on the ground that, under Article 1 of the Agreement between the Republic of Latvia, the Republic of Estonia and the Republic of Lithuania on Judicial assistance and Judicial Relations, he enjoyed the same rights in Latvia as a Latvian national and that, consequently, the Republic of Latvia was required to protect him against unjustified extradition.
  5. The Augstākā tiesa (Supreme Court, Latvia) points out that neither Latvian law nor any international agreement signed by the Republic of Latvia with, in particular, the Russian Federation and with the other Baltic countries restricts the extradition of an Estonian national to Russia. Under Article 62 of the Agreement of 3 February 1993 between the Republic of Latvia and the Russian Federation on Judicial Assistance and Judicial Relations in Civil, Family and Criminal Matters, protection against such extradition is conferred only on Latvian nationals.
  6. The referring court observes, moreover, that although Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States (4) authorises the Member States to surrender their own nationals, no consultation mechanism has been established between the Member States for obtaining the consent of the Member State of which a person is a national to the extradition of that person to a third State.
  7. According to the referring court, it follows from the foregoing considerations that the protection afforded by a Member State to its own nationals against extradition to a third State is effective only on the territory of that Member State. The referring court is of the view, however, that that is contrary to the essence of citizenship of the Union, that is to say, the right to equivalent protection. It emphasises that that situation creates uncertainty for citizens of the European Union as regards freedom of movement within the European Union.
  8. The referring court expresses the view that, under EU law, where there is a request for the extradition of a national of a Member State to a third State, the requested Member State should ensure the same level of protection for citizens of the Union as for its own nationals.
  9. Being uncertain, none the less, as to the interpretation to be given to EU law, the Augstākā tiesa (Supreme Court) decided on 26 March 2015, while annulling the detention of Mr Petruhhin, to stay proceedings and to submit the following questions to the Court for a preliminary ruling:

‘1.      Are the first paragraph of Article 18 TFEU and Article 21(1) TFEU to be interpreted as meaning that, in the event of extradition of a citizen of any Member State of the European Union to a non-Member State under an extradition agreement concluded between a Member State and a third country, the same level of protection must be guaranteed as is guaranteed to a citizen of the Member States in question?

  1. In those circumstances, must the court of the Member State to which the request for extradition has been made apply the conditions for extradition of the Member State of which the person concerned is a citizen or that in which he has his habitual residence?
  2. In cases in which extradition must be carried out without taking into consideration the specific level of protection established for the citizens of the State to which the request for extradition has been made, must the Member State to which the request for extradition has been made verify compliance with the safeguards established in Article 19 of the Charter, that is, that no one may be extradited to a State where there is a serious risk that he or she would be subjected to the death penalty, torture or other inhuman or degrading treatment or punishment? May such verification be limited to checking that the State requesting extradition is a party to the Convention against Torture or is it necessary to check the factual situation by taking into consideration the evaluation of that State carried out by the bodies of the Council of Europe?’

III –  My analysis

A –    Preliminary observations

  1. The possible application of Article 1(1) of the Agreement between the Republic of Latvia, the Republic of Estonia and the Republic of Lithuania on Judicial Assistance and Judicial Relations for the purpose of resolving the main proceedings
  2. In his appeal against the decision of the Public Prosecutor of the Republic of Latvia authorising his extradition, Mr Petruhhin relies, in particular, on Article 1(1) of the Agreement between the Republic of Latvia, the Republic of Estonia and the Republic of Lithuania on Judicial Assistance and Judicial Relations. He claims, on the basis of that provision, that he should receive from the Republic of Latvia the same protection as that Member State affords its nationals in the event of criminal proceedings. It follows that that Member State is required to protect Mr Petruhhin against an unjustified extradition request and that he is entitled to expect that the Republic of Latvia will do its utmost to obtain evidence to establish his guilt or innocence. In his submission, however, it is apparent from the position adopted by the Public Prosecutor of the Republic of Latvia that nothing will be done to verify as much and as accurately as possible the offences which he is alleged to have committed on Russian territory.
  3. At the hearing, the Latvian Government was asked whether Article 1(1) of the Agreement between the Republic of Latvia, the Republic of Estonia and the Republic of Lithuania on Judicial Assistance and Judicial Relations might be interpreted as conferring on Estonian and Lithuanian nationals the same protection against extradition as that enjoyed by Latvian nationals. The Latvian Government stated, in that regard, that thus far the Latvian case-law has not interpreted that provision as conferring additional guarantees on Estonian and Lithuanian nationals not to be extradited by the Republic of Latvia.
  4. It is for the referring court to ascertain whether it may find a solution to the main proceedings by interpreting Article 1(1) of the Agreement between the Republic of Latvia, the Republic of Estonia and the Republic of Lithuania on Judicial Assistance and Judicial Relations. It is incumbent on that court, in particular, to consider whether the expression ‘personal rights’ in that provision covers the right to legal protection against extradition.
  5. Admissibility of the request for a preliminary ruling
  6. At the hearing, the Latvian Government revealed that Mr Petruhhin is no longer on its territory, but that, following the cancellation of his detention on 26 March 2015, he returned to Estonia. The Governments of the Member States which expressed their views at the hearing inferred that the present request for a preliminary ruling should be declared inadmissible.
  7. In that regard, it should be recalled that, according to settled case-law, the procedure provided for by Article 267 TFEU is an instrument for cooperation between the Court of Justice and the national courts, by means of which the former provides the latter with the points of interpretation of EU law which they require in order to decide the disputes before them. (5)
  8. In the context of that cooperation, it is solely for the national court, before which the dispute has been brought and which must assume responsibility for the subsequent judicial decision, to determine in the light of the particular circumstances of the case both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court. Consequently, provided that the questions submitted concern the interpretation of EU law, the Court is, in principle, bound to give a ruling. (6)
  9. It follows that questions on the interpretation of EU law referred by a national court in the factual and legislative context which that court is responsible for defining and the accuracy of which is not a matter for the Court to determine, enjoy a presumption of relevance. The Court may refuse to rule on a question referred by a national court only where it is quite obvious that the interpretation of EU law that is sought is unrelated to the actual facts of the main action or its object, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it. (7)
  10. Thus, it should be borne in mind that, according to settled case-law, it is clear from both the wording and the scheme of Article 267 TFEU that a national court or tribunal is not empowered to bring a matter before the Court by way of a request for a preliminary ruling unless a case is pending before it, in which it is called upon to give a decision which is capable of taking account of the preliminary ruling. (8)
  11. That is the position in the present case. The Latvian Government confirmed at the hearing that there is still a dispute pending before the referring court. Whatever the uncertainty as to Mr Petruhhin’s present whereabouts, the referring court must therefore adjudicate on the legality of the decision taken by the Public Prosecutor of the Republic of Latvia to extradite him. Under Article 707 of the Latvian Code of Criminal Procedure, the referring court may decide either that the Public Prosecutor’s decision must be upheld, or that it must be annulled and that the extradition must not be authorised, or that the extradition request must be further examined. From the aspect of the decision to be taken by the referring court, an answer from the Court to the questions submitted by the referring court is still wholly relevant. Just as in the case of a convicted person who absconds after being found guilty, such a decision may then be enforced at any time, if need be after Mr Petruhhin has been re-arrested on Latvian territory.
  12. In the light of those factors, I therefore consider that the present request for a preliminary ruling is admissible.

B –    First and second questions

  1. By its first and second questions, which should be examined together, the referring court asks the Court, in essence, to rule on whether the first paragraph of Article 18 TFEU and Article 21(1) TFEU must be interpreted as meaning that a national of one Member State who is on the territory of another Member State and who is the subject of an extradition request by a third State must benefit from the same rule as that which protects the nationals of that other Member State against extradition.
  2. It is appropriate first of all to ascertain whether Mr Petruhhin’s situation falls within the scope of EU law and, in particular, the provisions of the FEU Treaty on citizenship of the Union.
  3. All the Governments which have submitted observations to the Court, with the exception of the Government of the United Kingdom, claim that the rules on extradition, in a situation in which the European Union has not concluded an agreement on extradition with a third State, falls within the competence of the Member States and is therefore not covered by EU law.
  4. I do not share that view. On the contrary, I endorse the view position expressed by the Government of the United Kingdom at the hearing, namely that the first paragraph of Article 18 TFEU and Article 21(1) TFEU are applicable since Mr Petruhhin exercised his right to freedom of movement or his right of residence under EU law and that he is therefore, in principle, entitled to be treated in the same way as nationals of the host Member State.
  5. It should be pointed out that, as an Estonian national, Mr Petruhhin has the status of a citizen of the Union pursuant to the first paragraph of Article 20(1) TFEU and may therefore rely, as against both his Member State of origin and the Member State to which he travels, on the rights attaching to such a status.
  6. As the Court has held on numerous occasions, the status of citizen of the Union is destined to be the fundamental status of nationals of the Member States, enabling those who find themselves in the same situation to enjoy, within the scope ratione materiaeof the FEU Treaty, the same treatment in law irrespective of their nationality, subject to such exceptions as are expressly provided for in that regard. (9)
  7. As citizenship of the Union, established by Article 20 TFEU, is not intended to extend the material scope of the FEU Treaty to internal situations which have no link with EU law, (10) it is necessary to identify whether such links exist.
  8. On this point, the Governments of the Member States have reiterated, in the context of these proceedings, the classic position in this type of situation, namely that in order for the FEU Treaty rules on citizenship of the Union to be applicable the facts of the main proceedings must relate to a matter governed by EU law and that it is not sufficient that the citizen of the Union concerned has exercised his freedom of movement.
  9. However, it must be emphasised that it is settled case-law that the situations falling within the scope of EU law include those involving the exercise of the fundamental freedoms guaranteed by the FEU Treaty, in particular those involving the freedom to move and reside within the territory of the Member States, as conferred by Article 21 TFEU. (11) Thus, in matters falling within the competence of the Member States, a relevant link with EU law may consist in the exercise by a national of one Member State of his right to move and reside on the territory of another Member State. (12) Conversely, where the Court is faced with a situation in which the matter at issue falls within the competence of the Member State and, moreover, the person relying on EU law has not made use of his right to freedom of movement provided for in Article 21 TFEU, it will declare that it has no jurisdiction to rule on the request for a preliminary ruling before it. (13)
  10. It is common ground that Mr Petruhhin, who was arrested in Latvia, made use of his freedom to move and reside in another Member State, guaranteed by Article 21(1) TFEU.
  11. It should also be made clear that, in the absence of rules of EU law on the extradition of nationals of the Member States to Russia, (14) the Member States retain the power to adopt such rules and to conclude agreements on such extradition with the Russian Federation.
  12. However, the Member States are required to exercise that power in a manner consistent with EU law, and in particular with the provisions of the FEU Treaty on freedom to move and reside on the territory of the Member States, as conferred by Article 21(1) TFEU on every citizen of the Union. That constitutes the application, in matters related to extradition, of a consistent body of case-law to the effect that the Member States are required, in the exercise of their powers, to respect EU law and in particular the provisions of the FEU Treaty on freedom to move and reside on the territory of the European Union recognised to every citizen. (15)
  13. Thus, in areas falling within the powers of the Member States, where a particular situation has a sufficiently close link with EU law, which is the case of a citizen of the Union who has exercised his right to move and reside on the territory of the Member States, those States are required to justify, by objective reasons, a difference in treatment between their nationals and the nationals of the other Member States. (16)
  14. It is now appropriate to examine whether the rule that the Republic of Latvia does not extradite its own nationals constitutes discrimination on the ground of nationality, contrary to the first paragraph of Article 18 TFEU.
  15. Mr Petruhhin was arrested in Latvia and held in custody there until 26 March 2015. An extradition request from the Prosecutor-General of the Russian Federation was received by the Public Prosecutor of the Republic of Latvia on 21 October 2014. It is therefore the provisions of Latvian law and those of the Agreement of 3 February 1993 between the Republic of Latvia and the Russian Federation on Judicial Assistance and Judicial Relations in Civil, Family and Criminal Matters that are to be applied.
  16. In the context of the present case, the rule that Latvian nationals may not be extradited from Latvia to a third State is set out in the third sentence of Article 98 of the Latvian Constitution, Article 697(2)(1) of the Latvian Code of Criminal Procedure and Article 62(1)(1) of the Agreement of 3 February 1993 between the Republic of Latvia and the Russian Federation on Judicial Assistance and Judicial Relations in Civil, Family and Criminal Matters.
  17. Since under that rule only Latvian nationals enjoy that protection against extradition, it follows that they are treated differently from nationals of other Member States who are on Latvian territory and whose extradition has been requested by a third State.
  18. As Mr Petruhhin exercised his freedom to move and reside on Latvian territory, as conferred by Article 21(1) TFEU, it is in the light of the first paragraph of Article 18 TFEU that the compatibility of the rule that the Republic of Latvia does not extradite its own nationals to Russia with the principle prohibiting any discrimination on the ground of nationality must be examined.
  19. It is appropriate in that regard to bear in mind that it is settled case-law that the principle of non-discrimination requires that comparable situations must not be treated differently and that different situations must not be treated in the same way. Such treatment may be justified only if it is based on objective considerations independent of the nationality of the persons concerned and is proportionate to the objective being legitimately pursued. (17)
  20. It is therefore necessary to compare, in a context such as that of the main proceedings, the situation of non-Latvian citizens of the Union residing in Latvia with that of Latvian nationals.
  21. The principle that a State does not extradite its own nationals is a traditional principle of extradition law. Its origins lie in the sovereignty of States over their nationals, the mutual obligations between a State and its nationals and the lack of confidence in the legal systems of other States. Thus, the grounds relied upon to justify that principle include, in particular, the State’s duty to protect its nationals from the application of a foreign legal system, of whose procedures and language they are ignorant and in the context of which it may be difficult for them to mount their defence. (18)
  22. When examined in the light of EU law and the equal treatment which it requires, the foundations of the principle of non-extradition of nationals seem relatively weak. The same applies to the duty of protection which a Member State should have towards its nationals. I do not see why such a duty should not be extended to the nationals of the other Member States. Article 20(2)(c) TFEU lends support to that view, moreover, in so far as it provides that citizens of the Union are to have ‘the right to enjoy, in the territory of a third country in which the Member State of which they are nationals is not represented, the protection of the diplomatic and consular authorities of any Member State on the same conditions as the nationals of that State’.
  23. The same also applies to the argument that the principle of non-extradition of nationals is based on the States’ distrust of foreign legal systems. It has been appositely observed on that point that ‘this distrust is no doubt one of the essential foundations of what fashions the way in which extradition is practised — and in particular refused — nowadays. But while it may constitute good reason for a State not to respond favourably to an extradition request, it does not readily explain why such a request would be refused only where it involves the extradition of a national, on the ground of his nationality. If distrust justifies a refusal to extradite, it justifies a refusal with respect to everyone and not just nationals. (19)
  24. Although the foundations of the rule that a State does not extradite its own nationals must therefore be treated with caution when they are evaluated in the light of the principle of non-discrimination on the ground of nationality, there is, however, in my view, an objective reason to distinguish the situation of the nationals of the requested Member State and that of nationals of other Member States where extradition is requested by a third State.
  25. Thus, it is necessary to compare, in a context such as that of the main proceedings, the situation of non-Latvian citizens of the Union residing in Latvia with that of Latvian nationals by reference to the objective to which several Member States and the European Commission have drawn attention in the present proceedings, namely the objective of combating the impunity of persons suspected of having committed an offence. Such an objective is most certainly a legitimate objective in EU law. (20)
  26. I would, on that point, observe that extradition is a procedure which enables an offence to be prosecuted or a penalty enforced. In other words, it is a procedure whose intrinsic aim is to combat the impunity of a person who is present in a territory other than that in which an offence was committed. (21)
  27. In the light of such an objective, the situation of the two categories of citizens of the Union referred to above could be regarded as comparable only if both could be prosecuted in Latvia for offences committed in a third State.
  28. In other words, when examining of the comparability of the situations of nationals of the requested Member State and nationals of the other Member States, it is necessary to ascertain whether, in accordance with the maxim aut dedere aut judicare(either extradite or prosecute), Union citizens who were not extradited to a third State could be prosecuted in the requested Member State for offences committed in that third State. It is therefore necessary to ascertain whether the traditional principle of international law on extradition that a requested State which refuses to extradite its nationals must be able to prosecute them is observed in the present case.
  29. Hugo Grotius defined the principle aut dedere aut punire(either extradite or punish) as follows: ‘when appealed to, a State should either punish the guilty person as he deserves, or it should entrust him to the discretion of the party making the appeal’. (22) The word ‘punish’ is now replaced by the word ‘prosecute’ as the second part of the alternative to extradition in order to take account of the presumption of innocence enjoyed by all those suspected of having committed an offence.
  30. The maxim aut dedere aut judicare is also expressed in many bilateral or multilateral conventions on extradition. (23) The obligation to extradite or prosecute is expressed, for example, in the European Convention on Extradition, signed in Paris on 13 December 1957. Article 6(1)(a) of that Convention thus provides that ‘a Contracting Party shall have the right to refuse extradition of its nationals’. Article 6(2) of that Convention completes that provision in so far as it provides that ‘if the requested Party does not extradite its national, it shall at the request of the requesting Party submit the case to its competent authorities in order that proceedings may be taken if they are considered appropriate’.
  31. As indicated in the United Nations Final Report of 2014, entitled ‘The obligation to extradite or prosecute (aut dedere aut judicare)’, those conventions are based on the mutual general commitment of the States Parties to surrender any person against whom the competent authorities of the requesting State have initiated proceedings or who is being sought for the purpose of executing a sentence or a security measure. There are a number of exceptions to that obligation to extradite, however, in particular where the person whose extradition is requested is a national of the requested State. In order to avoid impunity, those conventions impose the second part of the alternative on the requested State, namely the obligation to prosecute the offender if it refuses to extradite him. (24)
  32. Thus, under the obligation to extradite or to prosecute, if the requested State does not comply with an extradition request, it is required to prosecute (25) the suspected person in order to ensure the effectiveness of international co-operation between States and to ensure that he does not remain unpunished.
  33. It is precisely by reference to the latter element that, in the context of the present case, Latvian nationals and nationals of other Member States are not in a comparable situation.
  34. The risk of impunity of the person named in an extradition request may exist if the requested Member State has not made provision in its domestic law for jurisdiction allowing it to try a national of another Member State suspected of having committed an offence on the territory of a third State.
  35. In that regard, I would observe, as the Commission has done, that under Article 4(1) of the Latvian penal law, ‘Latvian citizens, Latvian non-citizens [ (26)] and foreign nationals who have a permanent residence permit for Latvia shall be held liable, in Latvian territory and in accordance with the present Law, for an offence committed in the territory of another State or outside the territory of any State, irrespective of whether it is recognised as an offence and punishable in the place in which it was committed’.
  36. It follows from that provision that Latvian nationals who have committed an offence in a third State may be prosecuted in Latvia. That is also the case for foreign nationals in possession of a permanent residence permit for Latvian territory.
  37. In the case of foreign nationals not in possession of such a permit, on the other hand, the exercise by the Latvian criminal courts of their jurisdiction in respect of offences committed on the territory of another State is limited, under Article 4(3) of the Latvian criminal law, to cases of ‘serious or very serious offences which have been directed against the interests of the Republic of Latvia or the interests of its inhabitants’.
  38. It therefore appears to follow from those provisions of the Latvian criminal law that a national of a Member State other than the Republic of Latvia, such as Mr Petruhhin, who, as the parties are agreed, does not have a permanent residence permit for Latvian territory, cannot be prosecuted in Latvia for an offence which he is suspected of having committed in Russia. It follows that, in the light of the objective of preventing the impunity of persons suspected of having committed an offence in a third State, that national is not in a situation comparable with that of Latvian nationals.
  39. Accordingly, the difference in treatment between non-Latvian citizens of the Union residing in Latvia and Latvian nationals does not constitute discrimination prohibited by the first paragraph of Article 18 TFEU, in so far as it is justified by the objective of combating the impunity of persons suspected of having committed an offence in a third State.
  40. Consequently, in circumstances such as those of the main proceedings, the first paragraph of Article 18 TFEU and Article 21(1) TFEU should be interpreted as meaning that they do not require that a national of a Member State present on the territory of another Member State who is the subject of an extradition request by a third State should benefit from the same rule as that which protects the nationals of that other Member State against extradition.

C –    Third question

  1. By its third question, the referring court asks the Court, in essence, to rule on whether a Member State which decides to extradite a citizen of the Union to a third State is required to verify the guarantees provided for in Article 19(2) of the Charter and on what form that verification must take.
  2. It is apparent from the file before the Court that that question seems to originate in Mr Petruhhin’s claim that he would be threatened with torture if he were extradited to Russia.
  3. According to Article 19(2) of the Charter, ‘no one may be removed, expelled or extradited to a State where there is a serious risk that he or she would be subjected to the death penalty, torture or other inhuman or degrading treatment or punishment’.
  4. The explanations relating to the Charter of Fundamental Rights (27) state that Article 19(2) ‘incorporates the relevant case-law from the European Court of Human Rights regarding Article 3 of the [European Convention for the Protection of Human Rights and Fundamental Freedoms, signed at Rome on 4 November 1950 (28)]’. (29)
  5. Since the situation of a national of a Member State who, like Mr Petruhhin, has exercised his freedom to move and reside in the territory of another Member State, falls, as we have seen earlier, within the scope of EU law, I am of the view that Article 19(2) of the Charter may apply in such a situation.
  6. Thus, a court of a Member State which receives a request relating to the extradition of a national of another Member State who has exercised rights conferred by Article 21(1) TFEU is required to verify the guarantees provided for in Article 19(2) of the Charter.
  7. As to what form that verification must take, it is appropriate, in accordance with the explanations in respect of Article 19(2) of the charter, to refer to the relevant case-law of the European Court of Human Rights on Article 3 of the ECHR.
  8. It follows from the consistent case-law of that Court that protection against the treatment prohibited under Article 3 of the ECHR is absolute, and that, accordingly, the extradition of a person by a Contracting State can raise problems under that provision and therefore engage the responsibility of the State in question under the ECHR, where there are serious grounds to believe that if the person is extradited to the requesting country, he would run the real risk of being subjected to treatment contrary to that provision. (30) In such cases, Article 3 of the ECHR ‘implies an obligation not to remove the person in question to the said country, even if it is a non-Convention State’. (31) The European Court of Human Rights states that it ‘draws no distinction in terms of the legal basis for removal; it adopts the same approach in cases of both expulsion and extradition’. (32)
  9. When the European Court of Human Rights examines whether an applicant would run the real risk of being subjected to ill treatment in the third country of destination, it considers ‘both the general human rights situation in that country and the particular characteristics of the applicant. In a case where assurances have been provided by the receiving State, those assurances constitute a further relevant factor which the Court will consider’. (33) Beyond the general situation in the country of destination, the real risk of being subjected to treatment prohibited by Article 3 of the ECHR must therefore be assessed by reference to the individual circumstances of the person concerned.
  10. In order to determine whether there are substantial grounds for believing the existence of a real risk of treatment contrary to Article 3 of the ECHR, the European Court of Human Rights assesses the issue in the light of all the material placed before it or, if necessary, material obtained proprio motu. (34) As regards the general situation in a country, it has often attached importance to information in recent reports from independent international associations for the protection of human rights, such as Amnesty International or government sources. (35)
  11. In addition to that description of the case-law of the European Court of Human Rights, and along the lines of that case-law, it is also appropriate to take note of what the Court recently held in its judgment of 5 April 2016 in Aranyosi and Căldăraru(C‑404/15 and C‑659/15 PPU, EU:C:2016:198), in the context of the application of Framework Decision 2002/584, as amended by Framework Decision 2009/299.
  12. The Court held in that judgment, in particular, with regard to Article 4 of the Charter, that ‘in order to ensure respect for [that article] in the individual circumstances of the person who is the subject of the European arrest warrant, the executing judicial authority, when faced with evidence of the existence of [deficiencies which may be systemic or generalised, or which may affect certain groups of people] that is objective, reliable, specific and properly updated, is bound to determine whether, in the particular circumstances of the case, there are substantial grounds to believe that, following surrender of that person to the issuing Member State, he will run a real risk of being subject in that Member State to inhuman or degrading treatment, within the meaning of [that article]’. (36)
  13. To my mind, the methodology thus defined by the Court can be transposed to a situation in which, following a request for the extradition of a citizen of the Union issued by a third country, the judicial authority of the requested Member State ascertains whether the guarantees laid down in Article 19(2) of the Charter are respected.

IV –  Conclusion

  1. In the light of all of the foregoing consideration, I propose that the questions submitted by the Augstākā tiesa (Supreme Court, Latvia) should be answered as follows:

In circumstances such as those of the main proceedings, the first paragraph of Article 18 TFEU and Article 21(1) TFEU should be interpreted as meaning that they do not require that a national of a Member State present on the territory of another Member State who is the subject of an extradition request by a third State should benefit from the same rule as that which protects the nationals of that other Member State against extradition.

In order to ensure respect for Article 19(2) of the Charter of Fundamental Rights of the European Union in the individual circumstances of the person who is the subject of an extradition request, the judicial authority of the requested Member State, when faced with evidence of the existence of deficiencies which may be systemic or generalised, or which may affect certain groups of people that is objective, reliable, specific and properly updated, is bound to determine whether, in the particular circumstances of the case, there are substantial grounds to believe that, following his extradition to the requesting third State, that citizen of the Union will run a real risk of being subject in that State to inhuman or degrading treatment, within the meaning of that provision.

1 – Original language: French.

2 – ‘The Charter’.

3 –      When questioned at the hearing about the meaning of this expression, the Latvian Government explained that ‘Latvian non-citizens’ are former Soviet citizens who arrived in Latvia after that State gained independence. These citizens did not choose either Latvian nationality or Russian nationality and may become naturalised.

4 – OJ 2002 L 190, p. 1. Framework Decision as amended by Council Framework Decision 2009/299/JHA of 26 February 2009 (OJ 2009, L 81, p. 24).

5 – See, in particular, judgment of 6 October 2015 in Capoda Import-Export (C‑354/14, EU:C:2015:658, paragraph 23 and the case-law cited).

6 – See, in particular, judgment of 6 October 2015 in Capoda Import-Export (C‑354/14, EU:C:2015:658, paragraph 24 and the case-law cited).

7 – See, in particular, judgment of 6 October 2015 in Capoda Import-Export (C‑354/14, EU:C:2015:658, paragraph 25 and the case-law cited).

8 – See, in particular, order of 5 June 2014 in Antonio Gramsci Shipping and Others (C‑350/13, EU:C:2014:1516, paragraph 10 and the case-law cited).

9 – See, in particular, judgment of 26 February 2015 in Martens (C‑359/13, EU:C:2015:118, paragraph 21 and the case-law cited).

10 – See, in particular, judgment of 26 October 2006 in Tas-Hagen and Tas (C‑192/05, EU:C:2006:676, paragraph 23 and the case-law cited).

11 – See, in particular, judgments of 11 July 2002 in D’Hoop (C‑224/98, EU:C:2002:432, paragraph 29 and the case-law cited); of 16 December 2008 in Huber (C‑524/06, EU:C:2008:724, paragraph 71 and the case-law cited); of 4 October 2012 in Commissionv Austria (C‑75/11, EU:C:2012:605, paragraph 39 and the case-law cited); and of 26 February 2015 in Martens (C‑359/13, EU:C:2015:118, paragraph 22 and the case-law cited).

12 – See Iliopoulou, A., ‘Entrave et citoyenneté de l’Union’, L’entrave dans le droit du marché intérieur, Bruylant, Brussels, 2011, p. 191. According to the author, ‘no national rule can be excluded a priori from the classification as a barrier in the context of citizenship. The existence of a cross-border element is sufficient to bring the situation within the context of Community law and to trigger a review of compatibility with the requirements of the Treaty’ (p. 202). See also, on that point, the Opinion of Advocate General Kokott in Tas-Hagen and Tas (C‑192/05, EU:C:2006:223, points 25 to 43).

13 – See, in particular, order of 19 June 2014 in Teisseyre (C‑370/13, not published, EU:C:2014:2033, paragraphs 33 to 35).

14 – There is, on the other hand, an Agreement on extradition between the European Union and the United States (OJ 2003 L 181, p. 27) (see Council Decision 2009/820/CFSP of 23 October 2009 on the conclusion on behalf of the European Union of the Agreement on extradition between the European Union and the United States of America and the Agreement on mutual legal assistance between the European Union and the United States of America (OJ 2009 L 291, p. 40)).

15 – See, in particular, concerning national provisions on compensation for victims of assaults carried out on national territory, judgment of 2 February 1989 in Cowan (186/87, EU:C:1989:47, paragraph 19); regarding national rules on criminal matters and criminal procedure, judgment of 24 November 1998 in Bickel and Franz (C‑274/96, EU:C:1998:563, paragraph 17); on national rules governing a person’s surname, judgments of 2 October 2003 in Garcia Avello (C‑148/02, EU:C:2003:539, paragraph 25), and of 12 May 2011 in Runevič-Vardyn and Wardyn (C‑391/09, EU:C:2011:291, paragraph 63 and the case-law cited); regarding an enforcement procedure for the recovery of debts, judgment of 29 April 2004 in Pusa (C‑224/02, EU:C:2004:273, point 22); as regards national rules on direct taxation, judgment of 12 July 2005 in Schempp (C‑403/03, EU:C:2005:446, paragraph 19); concerning national rules defining the persons entitled to vote and stand as a candidate in elections to the European Parliament, judgment of 12 September 2006 in Spain v United Kingdom (C‑145/04, EU:C:2006:543, paragraph 78); regarding the definition of the conditions for the acquisition and loss of nationality, judgment of 2 March 2010 in Rottmann (C‑135/08, EU:C:2010:104, paragraphs 39 and 41); as regards the Member States’ power to organise their social security schemes, judgments of 19 July 2012 in Reichel-Albert (C‑522/10, EU:C:2012:475, paragraph 38 and the case-law cited), and of 4 October 2012 in Commission vAustria (C‑75/11, EU:C:2012:605, paragraph 47 and the case-law cited); and, as regards the content of teaching and the organisation of the education systems of the Member States, judgment of 26 February 2015 in Martens (C‑359/13, EU:C:2015:118, paragraph 23 and the case-law cited).

16 – See Iliopoulou, A., op. cit. According to that author, ‘the right of citizenship of the Union obliges the right of national citizenship to justify itself, to demonstrate its relevance and its proportionality. The State must review in the light of European standards its relations not only with the Community “abroad” but also with its nationals’ (p. 196).

17 – See, in particular, judgment of 16 December 2008 in Huber (C‑524/06, EU:C:2008:724, paragraph 75 and the case-law cited).

18 – See Deen-Racsmány, Z., and Blekxtoon, R., ‘The Decline of the Nationality Exception in European Extradition?’, European Journal of Crime, Criminal Law and Criminal Justice, vol. 13/3, Koninklijke Brill NV, The Netherlands, 2005, p. 317.

19 – See Thouvenin, J.-M., ‘Le principe de non extradition des nationaux’, Droit international et nationalité, Colloque de Poitiers de la Société française pour le droit international, Pedone, Paris, 2012, p. 127, especially p. 133.

20 – That objective of combating impunity was taken into account by the Court, in particular, in its judgment of 27 May 2014 inSpasic (C‑129/14 PPU, EU:C:2014:586, paragraphs 58 and 72).

21 – See, in particular, Eur. Court HR, 4 September 2014, Trabelsi v. Belgium (CE:ECHR:2014:0904JUD000014010, § 117 and the case-law cited), where the European Court of Human Rights states that it ‘does not lose sight of the fundamental aid of extradition, which is to prevent fugitive offenders from evading justice, nor the beneficial purpose which it pursues for all States in a context where crime is taking on a larger international dimension’.

22 – See Grotius, H., De jure belli ac pacis, Book II, Chap. XXI, sect. IV. Le droit de la guerre et de la paix: French translation by Barbeyrac, J., Amsterdam, Pierre de Coud, 1724, vol. 1, p. 639, especially p. 640.

23 – See, for example, the multilateral conventions cited on page 14 of the United Nations Final Report 2014, entitled ‘The obligation to extradite or prosecute (aut dedere aut judicare)’, namely the European Convention on Extradition, signed in Paris on 13 December 1957; the General Convention on Judicial Cooperation, signed in Tananarive on 12 September 1961; the Inter-American Convention on Extradition of 1981; the Economic Community of West African States Convention on Extradition, adopted in Abuha on 6 August 1994, and the London Scheme for Extradition within the Commonwealth.

24 – See p. 14 of the Final Report.

25 – Although the expression ‘obligation to prosecute’ is most often used, it would be more accurate to speak of an obligation to bring the matter before the authorities with the power to prosecute. Depending on the evidence, the fulfilment of that obligation may or may not lead to the initiation of a prosecution.

26 – As to the meaning of this expression, see footnote 3 of this Opinion.

27 – OJ 2007 C 303, p. 17.

28 – ‘The ECHR’.

29 – Reference is made to the judgments of the Eur. Court HR of 7 July 1989 in Soering v. United Kingdom (CE:ECHR:1989:0707JUD001403888) and of 17 December 1996 in Ahmed v. Austria (CE:ECHR:1996:1217JUD002596494).

30 – See, in particular, Eur. Court HR, 4 February 2005, Mamatkoulov and Askarov v. Turkey (CE:ECHR:2005:0204JUD004682799, § 67); 28 February 2008, Saadi v. Italy (CE:ECHR:2008:0228JUD003720106, § 125 and the case-law cited); and 4 September 2014, Trabelsi v. Belgium (CE:ECHR:2014:0904JUD000014010, § 116 and the case-law cited).

31 – Eur. Court HR, 4 September 2014, Trabelsi v. Belgium (CE:ECHR:2014:0904JUD000014010, § 116).

32 – Eur. Court HR, 4 September 2014, Trabelsi v. Belgium (CE:ECHR:2014:0904JUD000014010, § 116 and the case-law cited).

33 – See, in particular, Eur. Court HR, 17 January 2012, Othman (Abu Qatada) v. United Kingdom (CE:ECHR:2012:0117JUD000813909, § 187).

34 – See, in particular, Eur. Court HR, 30 October 1991, Vilvarajah and Others v. United Kingdom (CE:ECHR:1991:1030JUD001316387, § 107; 4 February 2005, Mamatkoulov and Askarov v. Turkey (CE:ECHR:2005:0204JUD004682799, § 69); and 28 February 2008 Saadi v. Italy (CE:ECHR:2008:0228JUD003720106, § 128 and the case-law cited).

35 – See, in particular, Eur. Court HR, 4 February 2005, Mamatkoulov and Askarov v. Turkey, (CE:ECHR:2005:0204JUD004682799, § 72), and 28 February 2008, Saadi v. Italy, (CE:ECHR:2008:0228JUD003720106, § 131 and the case-law cited).

36 – Judgment of 5 April 2016 in Aranyosi and Căldăraru (C‑404/15 and C‑659/15 PPU, EU:C:2016:198, paragraph 94).

The fight against terrorism in Europe What the EU does (not do) and what it should do (*)

FondazioneBasso

(*) This was the title of a discussion seminar organised by Fondazione Lelio e Lisli Basso on April 18, 2016, attended by leading criminal judicial cooperation experts as well as by Emilio DE CAPITANI, Executive Director of the FREE Group,at the end of which the following document was drafted, which we submit to the attention of all concerned and in particular those responsible for policyin this sector.

A true EU criminal justice area: proposals for discussion

The Lisbon Treaty has profoundly changed “criminal justice cooperation” in the European Union.First, it provides for the introduction of legislative harmonization measures in the spheres of substantive and procedural law, through directives to be approved by means of ordinary legislative procedures.This creates the necessary legal bases for the extension of Eurojustcompetences,well beyond its present remit,and the creation of a European Public Prosecutor’s Office, whose responsibilities would initially be limited to the prevention of fraud against the EU budget, but which later could be extended to other areas, first and foremost the fight against terrorism and organized crime.

These innovations were not so much due to the initiativeof enlightened lawmakers but rather decades of cooperation between judicial bodies of member countries (starting with Council of Europeconventions), the trialling of horizontal forms of joint work (from the European Judicial Network to the practical implementation of Eurojust), and the obvious fact that in a globalized world,crime – financial, organized and terrorist – knows no boundaries, especially in Europe, which has become a single economic area.

This evolution has been followed by major European legal experts, who have supported this long and continuously evolving process.

However, the innovations introduced by the Lisbon Treaty, which entered into force more than six years ago, have remained largely unimplemented. After a first phase, between 2010 and 2012, positively characterized by the adoption of a number of important directives on the harmonization of a uniform set of minimum rights for the defence in criminal proceedings (the necessary prerequisites for building mutual trust among diverse systems and mutual recognition of decisions), legislative efforts seem to have run aground against the great difficulties of the Council, the inertia of the European Parliament and the substantial paralysis of Commission proposals. The only legislative measure of any importance came into force in 2014, the Directive on the European Investigation Order (EU Directive 2014/41 of 3 April 2014), the result of a proposal made by some Member States dating back to 2010,to be transposed, in the not too distant future, by May 2017.

Meanwhile the Commission’s proposals for a new directive on offenses against the Union’s financial interests (so-called PIF Directive) and regulations for the reform of Eurojust and for the introduction of a European Anti-Fraud Public Ministry have for years been lying on the Council’s table after extenuating negotiations and after undergoing a series of modifications that have greatly weakened the original scheme.

With regard to the anti-fraud prosecutor, the text currently under discussion, if approved, does not provide for a truly European public prosecutor’s office, ie a European judicial organ, but only what, in substance, is just another intergovernmental agency, something quite different from the common organ of investigation and prosecution envisioned in Article 86 of the Treaty. Also the proposal for a Eurojust Regulation (a timid rewriting of existing provisions rather than any real consideration of the new possibilities offered by article 85 of the TFEU), at present languishes in an apparent dead end. But what is most striking is that not even in the field of minimum criminal legislation for the protection of the Union’s financial interests, that is to say the defence of public assets that entirely belong to the Union and not to single member states, have we succeeded, in almost four years of negotiations, in reaching agreement in the Council and Parliament. The risk is that, at the end of the negotiations, we shall end up with a diluted version not only of the original 2012 proposal but also the 1995 Convention that the directive is meant to replace. This would represent the first time that a step back has been taken in the process of forming European criminal law and, to some extent, of European integration itself.

Another very serious matter is what appears to be the Council’s substantial closure towards any real discussions of major policy guidelines for the area of freedom, security and justice, with a view to drafting a general document that can replace the Stockholm Program, which expired in December 2014, a document which can continue the course set by the Tampere and Hague programs of 1999 and 2004 respectively. This document, expressly provided for in Article 68 TFEU, has, for nearly two decades, constituted “the” common agenda in this sector for both European and national institutions, something which can be used to set individual measures into a more general framework, and offer future prospects. Its absence seems to be a clear indication of the European Council’s failure to exercise the prerogatives assigned to it by the Treaty itself.

We believe we need to combat this inertia.

The recent dramatic events in France and Belgium have shown, though this was already more than clear, that serious forms of crime, and among them of course terrorism, take advantage of the freedom of movement between our countries. And it is common knowledge that the sort of terrorism we must fight today is structurally and operationally different from the forms that we have known up to now. It operates beyond national borders and beyond European confines, and to imagine that it can be defeated by national criminal policies is a dangerous illusion.

According to the good intentions that have been expressed on numerous occasions, European leaders are motivated by a desire to achieve a higher level of cooperation in criminal matters. However, fine words do not seem to be have been followed by facts.

What is primarily missing from discussions is a frank, empirical and objective assessment of the state of implementation and operation (and especially non-operation) of existing cooperation instruments. We often hear of the difficulties which have prevented effective, trustworthy and complete exchanges between authorities of different states as regards criminal reports and investigations. National authorities do not always cooperate effectively, as would be expected from the principle of mutual trust. Even the flow of information to Eurojust seems to be insufficient, in the eyes of many national authorities, and accompanied by reticence. We must put an end to these nationalistic jealousies. If a crime has transnational characteristics, an answer must be found at transnational level. This is particularly evident with regard to terrorism, and what is certain is that it will not be the introduction of barriers at borders or the presence of police on trains to stop terrorists.

We are asking for this verification to take place, with the support of the many judges and prosecutors that have already cooperated in good faith, and of the academies and universities that have greatly contributed to the development of a common culture.

Negotiations on the European Public Prosecutor’s Office and the PIF Directive are proceeding wearily and contradictorily, based, moreover, on texts that by no means reflect the proclaimed desire to establish a body that will give added value to investigations in this area. They must be finalised within a reasonable time so that the future Public Prosecutor can have effective and efficacious powers of investigation, overcoming neo-nationalist instincts and obstacles.

We believe that the Commission urgently needs to put forward a proposal for a new “facilitation” directive on fighting criminal activities, which, by taking advantage of situations of war and extreme poverty, speculate on migrants and refugees. There have been too many deaths in the Mediterranean and the Balkans. The absence of an effective policy to combat crimes constitutes a black hole in the Union’s policies.

An answer must be found to the annulment of the Directive on data retention by the Court of Justice, Digital Rights Ireland Ltd(C-293/12)of 8 April 2014, to which no response has so far been given. This has resulted in the absence of common rules, so that each country has returned their own national regulations, which are very different, creating uncertainty and confusion in requests for and exchanges of data.

We hope that the framework of European tools to halt the proceeds of criminal activity may finally be completed through the presentation of the Commission proposals on mutual recognition of confiscation orders, including those that are not conviction based.

The European Union must not give in to the temptation of emergency measures for criminal activities, which may lower the level of freedom and security of its citizens. It should instead focus on harmonization and cooperation, so as to raise the overall efficiency of the system while enhancing individual rights.

Contributing to the drafting of this paper were Ignazio Patrone, Lorenzo Salazar, Eugenio Selvaggi and AndreaVenegoni, judges with extensive experience at European level.

Goodbye, cruel world: visas for holidays after Brexit?

ORIGINAL PUBLISHED ON EU LAW ANALYSIS (April 25, 2016)

by Steve Peers

Until yesterday, I have consistently argued that the prospect of British citizens being subject to visas for short-term visits to the EU after Brexit was highly remote. In fact, I even told off some ‘Remain’ supporters who suggested that this might happen. EU policy is consistently to waive short-term visa requirements for wealthy countries (like the USA, Canada and Japan) as long as those countries waived short-term visa requirements for all EU citizens in return. I couldn’t imagine that it was likely that anyone on the ‘Leave’ side would wish to advocate short-term visa requirements for EU citizens visiting the UK after Brexit, thus damaging the British tourist industry and leading to a reciprocal obligation for UK citizens to get visas for short visits to the EU.

Incredibly, I was wrong on this. Yesterday, Dominic Raab, a senior figure on the Leave side, suggested that the UK might want to introduce visas for EU citizens after Brexit, and accepted that UK citizens might be subject to visa requirements for visits to the remaining EU in turn. It can’t seriously now be suggested that it’s ‘scaremongering’ to consider that this might become UK policy after Brexit – unless there’s such a thing as ‘self-scaremongering’ by the Leave side.

Let’s be clear about this. The idea of short-term visa requirements after Brexit is utterly and profoundly stupid. It is by no means a necessary consequence of Brexit, and would cause the maximum possible damage to UK businesses and the ordinary lives of British citizens who seek to visit the EU after Brexit, with little or no security benefit in return.

Background: EU visa policy

As an EU Member State, the UK allows short-term entry to EU citizens without a visa, as well as longer-term free movement of people – although the latter issue is severable from short-term visas. The reverse is also true, of course: simplifying the leisure, family and business visits of millions of British citizens to the EU every year. While there is an earlier treaty from the Council of Europe (a body separate from the EU) which abolishes visa requirements between European states, the UK is not a party to that treaty – and presumably would not become one under Raab’s plans.

The EU has agreements on free movement of people with Norway, Iceland and Switzerland, but it seems clear from official statements by the Leave side that the UK would not sign up to these after Brexit. But as I said, short-term visa waivers are a severable issue: the EU does have reciprocal short-term visa waiver treaties with a number of non-EU countries, as well as a unilateral policy of waiving short-term visa requirements for other wealthy countries who reciprocate. Therefore, all it would take for British citizens to retain the visa waiver for short-term visits to the EU after Brexit would be a British government policy not to impose short-term visa requirements on EU citizens, or a UK/EU treaty to this effect. This seemed highly likely – until Raab’s rant.

The EU decides visa policy as a bloc, so there is no possibility that the UK could do separate deals on short-term visas with individual EU countries. As an exception, Ireland (like the UK at present) has an opt-out from the EU’s visa policy, so the UK and Ireland could retain their separate Common Travel Area arrangements – if they wished to. It’s not clear if Raab also wants to impose visa requirements for Irish nationals (which might also then be reciprocated). If that happens, then border controls would have to be reimposed between Northern Ireland and the Irish Republic, as some on the Leave side have already called for (though others have taken a different view).

EU visas: the legal framework

The EU (apart from Ireland) has a standard short-term visa policy, which entails issuing ‘Schengen visas’ valid for all the Schengen states.  So in legal terms we know what the impact would be of the EU imposing visas on British citizens. The basic rules are set out in the EU visa code, although a few EU countries (Romania, Bulgaria, Cyprus and Croatia) don’t apply that code yet as they are not yet fully part of Schengen. While the Schengen system currently has many well-known problems as regards border control, this has not affected Schengen visa policy, and there is no reason why it would do.

To get a Schengen visa, the visa code requires an application at a consulate, although in practice the applications are often made through a private service provider. Applications can be made up to three months before the date of travel, or six months for multiple-entry visas. Applicants need to provide fingerprints, except for children under twelve and some other limited exceptions. They must also provide documents supporting the reason for their travel, obtain medical insurance and pay a fee of €60 per applicant, along with an extra fee if the applicant uses a private service provider. The fee is reduced to €35 for children between six and twelve, and waived for younger children, as well as pupils and teachers on study trips, researchers and representatives of NGOs. It may be waived in a small number of other cases; but it is always payable for tourist or business trips.

Most applications for Schengen visas are accepted, but applications are scrutinised for subsistence and intention to return, so it may be more likely that unemployed or low-waged British citizens find their visa applications refused. Any rejections will be registered in the EU’s Visa Information System for five years, which may make it less likely for a future application to be accepted. Usually a visa is valid for a period of three months over the next six months, but it is possible to get a multiple-entry visa (valid for several trips over a five year period) if there is a proven need to travel frequently. Visas can’t usually be obtained at the border, so British citizens would have to apply for a visa at least several days in advance to be sure of being able to travel. Without a visa, they would be denied boarding planes, trains or ferries, due to the EU law on carrier sanctions.

Back in 2014, the Commission proposed amendments to the EU visa code. They would, for instance, simplify the rules on getting multiple-entry visas, and allow for earlier applications. But such visas would still not be standard. Recently, both the Council and the European Parliament adopted their positions on this proposal, and so it will likely be agreed later this year. I’ve blogged separately on the main changes that the Commission proposed, as well as the chance to add rules on humanitarian visas, and on the specific proposals affecting UK citizens’ non-EU family members. But if the new code ultimately applies to all British citizens, its impact will be obviously be much greater.

The EU has signed some treaties on visa facilitation with non-EU countries. These treaties don’t waive the visa requirement, but they reduce the application fee and simplify the process. Of course they are reciprocal – the UK would have to cut the fees and simplify the process for EU citizens applying for short-term visas to visit the UK too.

Practical consequences: the unbearable madness of visa requirements

There’s no doubt that visa requirements reduce travel for tourism, business and other purposes. There are detailed estimates of the scale of the economic impact in a reportdrawn up for the Commission before it proposed the revised visa code. Think of it at the individual level: if there’s no visa facilitation treaty, a British couple with two teenagers would have to pay an extra €240 for a family holiday in the EU in visa application fees, with fees often paid to service providers on top. Even with a visa facilitation treaty like the one with Ukraine, the family would pay €70 in fees (€35/adult, under-18s exempt from fees), and again possibly service providers.

Raab argues that all this is justified on security grounds. Is it? First of all, the vast majority of terrorist (or other) offences in the UK are committed by British citizens. But some foreign visitors do commit crimes. How best to screen them out? The basic problem is that imposing a visa requirement doesn’t, in itself, increase our capacity to determine if a particular individual is likely to pose a threat. It simply, in effect, moves the decision on entry in time (to a date before arrival) and space (away from the border to a consulate – although individuals will still be checked at the border to ensure that there is a visa in their passport). The best way of knowing if a particular individual is a threat is by checking the available data.

That information is easy to find if the visa applicant has previously committed a crime in the UK, because in that case there ought to be a criminal record accompanied by an entry ban. But in this scenario, the entry ban information should in principle not only be available to consulates considering a visa application, but also to border guards deciding on entry at the border. So the visa requirement adds nothing. Nor does it add anything as far as EU citizens are concerned: the EU citizens’ Directive allows the UK to impose an entry ban on EU citizens who have committed serious crimes; and the UK can (and does) refuse entry to EU citizens at the border.

What if the visa applicant has committed a crime in another country? Whether people have to apply for a visa or are checked at the border, there is no general access to other countries’ criminal records. However, the UK does have access to some relevant dataas an EU Member State. Last year, it gained access to the Schengen Information System, which includes information on wanted persons, including some terrorist suspects. From 2012, the EU system for exchange of information on criminal recordswas set up (known as ECRIS: the European Criminal Records Information System), and the EU Commission recently reported that it had greatly improved the flow of information on this issue. The ECRIS law provides for criminal records to be exchanged more easily as regards a country’s own citizens (so we now have more information on UK citizens who have committed crimes abroad). Furthermore, the UK opted into the newly adopted EU law on passenger name records.

These laws don’t provide perfect security, of course. Not all terrorist suspects’ names appear in the Schengen Information System, for instance. The passenger name records law is likely to be challenged on human rights grounds, since it gathers information on all passengers, not just suspects. The criminal records law was unable to stop a tragic killing two years ago, because British police unfortunately did not ask another Member State about the killer’s criminal record (on the basis of a separate EU law) when they had the opportunity. As I suggested at the time, it would be desirable to provide for automatic circulation of the criminal records of EU citizens who have been convicted of very serious crimes, if they have been released from prison, so that they can be stopped and validly rejected from entry at the border.  The upcoming amendments to the Schengen Information System would be an opportunity to do this.

But how would Brexit, with or without a visa requirement, improve this situation? It would not give the UK any more access to EU databases, or to other Member States’ criminal records systems; indeed, it might mean less access. The EU has not extended ECRIS to any non-EU countries; the Schengen Information System has only been extended to those (like Norway and Switzerland) that are fully part of Schengen. The EU has some treaties on exchange of passenger name data with non-EU countries, but this policy is being challenged on data protection grounds in the EU court.

More broadly, the EU court has ruled in the Schrems case that personal data can only be transferred to non-EU countries that have data protection law ‘essentially equivalent’ to EU law. The UK would have to commit to continue applying a law very similar to EU law, or risk disruptions in the flow of personal data – affecting digital industries as well as exchange of data between law enforcement authorities. This restriction can’t easily be negotiated away, since the case law is based on the EU Charter of Fundamental Rights, which has the same legal effect as the Treaties. The UK’s compliance with the EU rules would almost certainly be challenged in practice: see by analogy the Davis and Watson case already pending before the EU court. Outside the EU, the effect of a ruling that the UK did not comply with the rules would be a potential disruption of the flows of personal data.

One final point. Let’s remind ourselves that the UK already allows nationals of over fiftynon-EU countries to visit for a short period without a visa. So obviously we have found a way to reconcile the possible security threat this might pose with the needs of the UK economy. Why should that be so difficult to do as regards EU countries after Brexit? The mere existence of that policy anyway creates a loophole: any EU citizen with the dual nationality of one of those non-EU states (or perhaps Ireland) would be able to visit the UK without a visa anyway. Or is the intention to require a visa for everyone?

Of course, this loophole would work the other way around too. As a dual citizen of the UK and Canada, I could still visit the EU visa-free on a Canadian passport. So could any other British people who are also citizens of a Member State, or a non-EU country on the EU visa whitelist. But many others (including my family, for instance) could not. Let’s conclude on the utter absurdity of this: a British citizen contemplating the use of a Canadian passport to visit the European Union. Is this really the vision of an open, liberal, global United Kingdom after Brexit that the Leave side want people to vote for on June 23rd?

The balance between criminal law and international humanitarian law in terrorism cases

Intervention at the 10th ECLAN Conference, 26 April 2016 in Brussels

by Vaios KOUTROULIS (*)

On April 8 2016, in Anderlecht, the Belgian police arrested five people linked to the 22nd March bombings in the airport and metro station of Brussels. Among them was Mohamed Abrini who has admitted that he was one of the three persons that were filmed by security cameras in the Brussels airport. Among the persons arrested was also Osama Kareym, who is suspected to have taken part in the bombing on the Brussels subway. Both are also linked to the 13 November Paris attacks.

Can these participants in the 22nd March bombings in the airport and metro station of Brussels be criminally persecuted for terrorist crimes before Belgian courts?

In principle, the answer seems to be a straightforward YES.
The object of my presentation is to show that the question is much more complicated than it may appear at first sight.
This complication stems from the Belgian Criminal Code.
Indeed, in the section relating to terrorist offences of the Belgian Criminal Code, the penultimate article (article 141bis) excludes from the scope of application of the section the activities of armed forces in times of armed conflict as defined and regulated by international humanitarian law (IHL).

The origin of this article, which is a saving clause, is the last preambular paragraph of the Council Framework Decision of 13 June 2002 on combatting terrorism which reads as follows:
“Actions by armed forces during periods of armed conflict, which are governed by international humanitarian law within the meaning of these terms under that law, and, inasmuch as they are governed by other rules of international law, actions by the armed forces of a State in the exercise of their official duties are not governed by this Framework Decision”.

This provision is reflected in several international conventions relating to the prohibition of terrorist acts.[1] As it is clear from the text of this article, the scope of application of the terrorist offences is defined / determined by the rules of IHL. So, under Belgian criminal law, IHL and terrorist offences are mutually exclusive legal regimes. Thus, in order to correctly appreciate which acts may be criminally prosecuted under Belgian law as terrorist acts, we need to go through the definition of the relevant IHL concepts.

I will make three points with respect to this provision, and this rule of mutual exclusion.

  1. First, I will briefly discuss the IHL notions of “armed forces” and “armed conflict” in order to give a clearer idea of what is excluded from the definition of terrorist offence.
  2. Second, I will briefly discuss how the savings clause has been applied in Belgian case-law
  3. Third, I will explain the purpose, la raison d’être, of the clause and why it is important to maintain it.

A. What is not a terrorist offence?

Actions by armed forces during periods of armed conflict, which are governed by international humanitarian law
Armed forces = both armed forces of a State, of an international organisation or of a non-State actor.

The argument is sometimes raised that the concept of “armed forces” should be limited only to State armed forces, in other words, that only activities by State armed forces are excluded from the scope of application of terrorist offences, while those of non-State actors are not. This interpretation is not supported by the text of the provision.

According to the ICRC, customary IHL defines armed forces as follows:
“The armed forces of a party to the conflict consist of all organized armed forces, groups and units which are under a command responsible to that party for the conduct of its subordinates.” (rule 4, source art. 43 AP I)
Armed forces of a State are quite clear to identify = regular forces of States (membership regulated by domestic law; members of irregular groups belonging to a party to the conflict)

Armed forces of a rebel group, a non-State actor are more difficult to identify.
Again according to the ICRC, “In non-international armed conflict, organized armed groups constitute the armed forces of a non-State party to the conflict and consist only of individuals whose continuous combat function it is to take a direct part in hostilities.” (ICRC, Interpretative guidance on DPH, 2009)

  • Continuous combat function requires a lasting integration into an organised armed group acting as the armed force of a non-State party to an armed conflict;
  • Individuals whose function involves the preparation, execution, command of acts or operations amounting to direct participation in hostilities have a continuous combat function;
  • Individuals recruited, trained and equipped by a group to continuously and directly participate in hostilities have a CCF;
  • Recruiters, trainers, financiers, propagandists may continuously contribute to the general war effort of a non-State party but are not members of the armed forces of the group, unless their activities amount to DPH[2].
  1. Armed conflict = both international and non-international

IAC: conflict between states or between a State and an intl org.
NIAC: conflict between State and rebel group or between two or more rebel groups.
Two conditions: intensity of hostilities[3] and organisation of the parties[4].

Another factor that may come into play in determining whether an armed conflict exists relates to the geographical scope of application of an armed conflict. This is interesting since there have been some very extensive interpretations relating to the geographical scope of application of armed conflict that have been suggested. I am referring to the concept of the “global war on terror” put forth by the United States. According to this view, an armed conflict against a terrorist group basically knows no boundaries and exists wherever the terrorist is found. This theory has been invoked by the United States in order to allow them to invoke IHL as a justification for drone strikes against terrorists around the world. However, the drawback of such an extensive reading of IHL is that is the armed conflict follows the terrorist, then any act committed by him/her anywhere in the world will be considered as committed in the context of an armed conflict and therefore will not be qualified as a terrorist offence…

B. How have the Belgian Courts applied the saving clause in art. 141bis?

The answer is simple: very restrictively.
The defendants’ lawyers have invoked the clause in some cases but Belgian Courts have been up to now very reluctant in applying it. This has resulted in some very problematic interpretations of IHL concepts, since in order for the judges to reject the clause, they have interpreted the notions of “armed forces” and “armed conflict” very restrictively.

Thus, for example, in a case concerning the death of a Belgian national in Iraq in the context of an attack against the US armed forces present in Iraqi territory[5]. The relevant period was from January 2004 to November 2005. The 2008 judgment by the first instance tribunal[6] considered that there was no armed conflict in Iraq during the period in question. This classification was clearly unsupported by the facts in question, since even the US recognised that they were involved in an armed conflict and a belligerent occupation at least for the first months of the relevant period.

Another example, in a more recent case, deals with Sharia4Belgium, a group founded in 2010 having played an active role in the departure of combatants in Syria in order to join armed groups Jahbat Al-Nusra and Majlis Shura Al Mujahidin (affiliated with Al-Qaeda).

In the First instance judgment, handed down in 2015[7], the Tribunal held that there was an armed conflict in Syria to which the groups in question was involved. It also clarified that the armed conflict did not extend to Belgium. The consequence of that was that, in any case, the saving clause could not be invoked for acts which took place in Belgium. However, turning to the notion of “armed forces” the Tribunal refused to recognise that the two groups in question are “armed forces” within the meaning of IHL. This goes against the classification of the UN Commission of Enquiry on Syria. It also goes against well-established IHL rules. Indeed, the Tribunal, in order to reject to the two groups their character as “armed forces” defines “armed forces” very restrictively and imposes the respect of many conditions for a group to be classified as an “armed force”, conditions which have no legal basis in IHL.[8]

C. Why does the saving clause exist and why should it be maintained?

The reason for the saving clause is the recognition of the specificity of IHL as the legal regime which is best adapted in dealing with situations of armed conflict.

The need to preserve this specificity.

Firstly, IHL has its own list of crimes (war crimes) => the fact that an act does not constitute a terrorist offence does not mean that it is not a crime under international and national law or that its authors will remain unpunished.
Terrorism as a method of warfare is prohibited under IHL, both in international and non-international conflicts (Art. 33 4th GC; art. 51§2 AP I; art. 4§2(d) and 13§2 AP II).
It is also a war crime (ICTR Statute; SCSL Statute).

Secondly, the difficulty in finding common ground with respect to a definition of terrorism in international law, entails the risk of abuse of the notion of terrorism. This risk is particularly high in situations of armed conflict, especially in NIACs since the government always considers that the rebels are terrorists.

NOTES

[1] 1997 International Convention for the suppression of terrorist bombings, art. 19§2:
“The activities of armed forces during an armed conflict, as those terms are understood under international humanitarian law, which are governed by that law, and the activities undertaken by military forces of a State in the exercise of their official duties, inasmuch as they are governed by other rules of international law, are not governed by this Convention.”
2005 International Convention for the Suppression of Acts of Nuclear Terrorism, art. 4§2:
“The activities of armed forces during an armed conflict, as those terms are understood under international humanitarian law, which are governed by that law are not governed by this Convention, and the activities undertaken by military forces of a State in the exercise of their official duties, inasmuch as they are governed by other rules of international law, are not governed by this Convention.”
2005 Council of Europe Convention on the Prevention of Terrorism, art. 26 §5:
“The activities of armed forces during an armed conflict, as those terms are understood under international humanitarian law, which are governed by that law, are not governed by this Convention, and the activities undertaken by military forces of a Party in the exercise of their official duties, inasmuch as they are governed by other rules of international law, are not governed by this Convention. »
1979 International Convention against the Taking of Hostages, art 12
“In so far as the Geneva Conventions of 1949 for the protection of war victims or the Protocols Additional to those Conventions are applicable to a particular act of hostage-taking, and in so far as States parties to this Convention are bound under those conventions to prosecute or hand over the hostage-taker, the present Convention shall not apply to an act of hostage-taking committed in the course of armed conflicts as defined in the Geneva Conventions of 1949 and the Protocls thereto (including IACs of AP I)”
1999, International Convention for the suppression of the Financing of Terrorism, art. 2:

  1. Any person commits an offence within the meaning of this Convention if that person by any means, directly or indirectly, unlawfully and wilfully, provides or collects funds with the intention that they should be used or in the knowledge that they are to be used, in full or in part, in order to carry out:

(…)
(b) Anyotheractintendedtocausedeathorseriousbodilyinjurytoacivilian,orto any other person not taking an active part in the hostilities in a situation of armed conflict, when the purpose of such act, by its nature or context, is to intimidate a population, or to compel a government or an international organization to do or to abstain from doing any act.
[2] DPH condition – direct causation = one causal step between activity and the harm to the adversary:

  • although recruitment and training of personnel is crucial to the military capacity of a party to the conflict, the causal link with the harm inflicted on the adversary will generally remain indirect. Only where persons are specifically recruited and trained for the execution of a predetermined hostile act can such activities be regarded as an integral part of that act and thus as DPH.
  • General war effort and war sustaining activities (design, production, shipment of weapons, propaganda, financial support) are not DPH.
  • Purchase, smuggling of the components of an explosive device, assembly of the device, storage of the device are connected with the resulting harm but are not DPH; only planting and detonating the device are DPH.
  • General preparatory acts do not constitute DPH: purchase, roduction, smuggling, hiding of weapons, general recruitment and training of personnel, financial administrative or political support.

[3] For the intensity of the conflict, these factors include ‘the number, duration and intensity of individual confrontations; the type of weapons and other military equipment used; the number and calibre of munitions fired; the number of persons and type of forces partaking in the fighting; the number of casualties; the extent of material destruction; and the number of civilians fleeing combat zones. The involvement of the UN Security Council may also be a reflection of the intensity of a conflict’; ICTY, Haradinaj 2008 Trial Judgment, supra note 26, para. 49. For further references, see ICTY, Boškoski and Tarčulovski 2008 Trial Judgment, supra note 26, paras. 177-178.
[4] As to the organisation of the parties, relevant for dissident armed groups, the indicative factors identified by the ICTY, include ‘the existence of a command structure and disciplinary rules and mechanisms within the group; the existence of headquarters; the fact that the group controls a certain territory; the ability of the group to gain access to weapons, other military equipment, recruits and military training; its ability to plan, coordinate and carry out military operations, including troop movements and logistics; its ability to define a unified military strategy and use military tactics; and its ability to speak with one voice and negotiate and conclude agreements such as cease-fire or peace accords’; ICTY, Haradinaj 2008 Trial Judgment, supra note 26, para. 60. For further references, see ICTY, Boškoski and Tarčulovski 2008 Trial Judgment, supra note 26, paras. 199-203.
[5] Case of the “fillières iraquiennes”, Muriel Degauque.
[6] Tribunal correctionnel de Bruxelles, 10 janvier 2008.
[7] Tribunal correctionnel d’Anvers, 11 février 2015.
[8] Such as the obligation to respect rules of IHL.

Data retention and national law: whatever the CJEU rules, data retention may still survive!

ORIGINAL PUBLISHED ON EU LAW ANALYSIS

by Matthew White, Ph.D candidate, Sheffield Hallam University

Should governments be able to retain data on everyone’s use of the Internet and their phones – because it might arguably aid the fight against terrorism and serious crime? This ‘data retention’ issue raises fundamental questions about the balance between privacy and security, at both national and EU level. Initially, in the electronic privacy (e-Privacy)Directive, EU legislation set out an option for Member States to adopt data retention rules, as a derogation from the normal rule of confidentiality of communications in that Directive. Subsequently, in 2006, at the urging of the UK government in particular, the EU went a step further. It adopted the Data Retention Directive (DRD), which requiredtelecom and Internet access providers to keep data on all use of the Internet and phones in case law enforcement authorities requested it.

However, on 8 April 2014, the Court of Justice of the European Union (CJEU) ruled that the latter Directive went too far. In its Digital Rights Ireland judgment (discussed here), that Court said that the EU’s Data Retention Directive (DRD) was invalid in light of a lack of compliance with the rights to privacy and data protection set out in Articles 7 and 8 of the EU Charter of Fundamental Rights (CFR) (para 69 and 73). This left open an important question: what happens to national data retention laws? Can they also be challenged for breach of the EU Charter rights, on the grounds that they are linked to EU law (the derogation in the e-Privacy Directive)? If so, do the standards in the Digital Rights Ireland judgment apply by analogy?

Instead of addressing this matter urgently, the United Kingdom government sat on its hands for a while and then unprecedentedly rushed through the Data Retention and Investigatory Powers Act 2014 (DRIPA 2014). DRIPA 2014 was intended to be a reactionto the Digital Rights Ireland ruling, giving the UK as a matter of national law the power to retain data that had been struck down by the CJEU as a matter of EU law.

In 2015, Tom Watson (now the deputy leader of the UK Labour Party), David Davis (a Conservative party backbencher) and others challenged s.1 of DRIPA 2014 arguing that the powers to obligate data retention on public telecommunication operators set out in that section of DRIPA did not sufficiently reflect what the CJEU ruled in Digital Rights Ireland. Although that CJEU ruling only applied to EU legislation, they argued that it also applied by analogy to national legislation on data retention, since such legislation fell within the scope of the option to retain communications data set out in the derogation in the e-Privacy Directive, and so was linked to EU law (and therefore covered by the Charter). Even though the e-Privacy Directive only related to publicly available electronic communications services (Article 3(1)), it is submitted that any extension of the definition of public telecommunications operator would fall within the Data Protection Directive, and thus the CFR would still apply. The High Court (HC) ruled in the claimants’ favour inDavis where an order was made for s.1 of DRIPA to be disapplied by the 31st of March 2016, insofar as it is incompatible with Digital Rights Ireland (para 122). This was in the hopes that it would give Parliament sufficient time to come up with a CFR compliant data retention law (para 121).

The government appealed to the Court of Appeal (CoA) which took a radically different approach maintaining that ‘the CJEU in Digital Rights Ireland was not laying down definitive mandatory requirements in relation to retained communications data’ (para 106). But for the sake of caution, the CoA made a preliminary reference to the CJEU asking:

(1) Did the CJEU in Digital Rights Ireland intend to lay down mandatory requirements of EU law with which the national legislation of Member States must comply?

(2) Did the CJEU in Digital Rights Ireland intend to expand the effect of Articles 7 and/or 8, EU Charter beyond the effect of Article 8 ECHR as established in the jurisprudence of the ECtHR?

The CoA was not the only national court to make a preliminary reference to the CJEU on matters regarding data retention and the reach of Digital Rights Ireland. On the 4th May 2015, the Force was with Kammarrätten i Stockholm when it asked the CJEU:

Is a general obligation to retain traffic data covering all persons, all means of electronic communication and all traffic data without any distinctions, limitations or exceptions for the purpose of combating crime (as described [below under points 1-6]) compatible with Article 15(1) of Directive 2002/58/EC [the electronic privacy Directive], 1 taking account of Articles 7, 8 and 15(1) of the Charter?

If the answer to question 1 is in the negative, may the retention nevertheless be permitted where:

access by the national authorities to the retained data is determined as [described below under paragraphs 7-24], and

security requirements are regulated as [described below under paragraphs 26-31],

and all relevant data are to be retained for six months, calculated as from the day the communication is ended, and subsequently deleted as [described below under paragraphs 25]?

The way in which the first question in Davis and Watson is asked doesn’t specify whether the general obligation applies to every service provider under the state’s jurisdiction or specific service providers to retain what they individually process. The assumption is the former as ‘all means of electronic communication and all traffic data without any distinctions’ implies a catch all to the relevant services. The Home Secretary (and indeed the government) may argue that if the CJEU rules in the negative (note that Article 15(1) of the e-Privacy Directive only applies to publically available electronic communications services, thus the justification for retaining data from other services would have to be found in the Data Protection Directive (DPD)) it would mostly have affected cl.78 of theInvestigatory Powers Bill (IPB) (currently before Parliament) which would grant the Secretary of State the power to issue retention notices on a telecommunications or any number of operators to retain for e.g. any or all data for 12 if the power in cl.1 of the draft Communications Data Bill (dCDB) had been replicated. The dCDB was a legislative measure introduced in 2012 to allow public authorities to keep up to date with the sophistication of e-Crime. Clause 1 maintained that:

1 Power to ensure or facilitate availability of data

(1) The Secretary of State may by order—

(a) ensure that communications data is available to be obtained from telecommunications operators by relevant public authorities in accordance with Part 2, or

(b) otherwise facilitate the availability of communications data to be so obtained from telecommunications operators.

(2) An order under this section may, in particular—

(a) provide for—

(i) the obtaining (whether by collection, generation or otherwise) by telecommunications operators of communications data,

(ii) the processing, retention or destruction by such operators of data so obtained or other data held by such operators.

This measure was, however abandoned because the Liberal Democrats (in the then Coalition Government) did not approve of the far reaching nature of the proposal. In regards to cl.1, it clearly was a general power, as no distinction was made on who the obligation to retain may fall upon, and thus it is submitted that this power is analogous to the power which is the subject of the question being asked of the CJEU. Clause 78(1) of the IPB on the other hand, makes the distinction that a data retention notice may require a telecommunications operator to retain relevant communications data. Though there are two possible conflicts, the first, based on the assumption that the CJEU rules in the negative (to the first question) is cl.78(2)(a) and (b). This gives the Secretary of State the discretion to issue retention notices on any description of operators to retain all or any description of data. This could be considered a general obligation because it could affect all telecommunications operators and then be classed as a general obligation.

Secondly, retention ‘without distinction’ or ‘exceptions’ may be important when it comes to traffic data pertaining to journalists, politicians, and the medical and legal professions. But because the reference doesn’t mention specific service providers it cannot be said with certainty how much this would affect cl.78(1) which doesn’t make distinctions or exceptions.

When it comes to limitations on data retention, there is at least one, which was first noted in s.1(5) of DRIPA 2014 which allowed for a 12 month maximum period of retention. This is replicated in cl.78(3) and takes on board the recommendation of the Advocate General’s opinion (AG) in Digital Rights Ireland (para 149).

The President of the CJEU felt it was desirable to combine both preliminary references. The questions of access by both the Swedish and UK courts do not directly affect the cl.78 issuing of retention notices (insofar that it at least doesn’t involve everytelecommunications operator) nor does answering whether Article 7 and 8 was intended to extend beyond Article 8 ECHR jurisprudence. The security arrangements are dealt with by cl.81 (whether they are adequate is a different matter) and thus not relevant to the issuing of retention notices.

This, however, proceeds on the assumption that the CJEU will rule in the negative to the Swedish preliminary reference regarding retention being lawful for the purposes ofaccess, because if it does not, cl.78(2)(a) and (b) would not be affected at all. Moreover, the HC in Davis felt that the CJEU believed that data retention genuinely satisfied an objective of general interest (para 44) and that it must be understood to have held that a general retention regime is unlawful unless it is accompanied by an access regime which has sufficiently stringent safeguards to protect citizens’ rights set out in Articles 7 and 8 of the CFR (para 70). The CoA was silent on this matter, and therefore for the mean time, it is understood that if the CJEU rules in the positive, cl.78 would not be affected as a matter of EU law.

On the matter of whether the HC or the CoA had interpreted Digital Rights Irelandcorrectly, it is important to highlight one of the justifications for the CoA conclusions. It maintained in relation to mandatory requirements, that in the opinion of the AG, he was at least, not looking for the Directive to provide detailed regulation (para 77). Yet the CoA failed to mention his conclusions, where it was stated that the DRD was invalid as a result of the absence of sufficient regulation of the guarantees governing access to (by limiting access, if not solely to judicial authorities, at least to independent authorities, or, failing that, by making any request for access subject to review by the judicial authorities or independent authorities and it should have required a case-by-case examination of requests for access in order to limit the data provided to what is strictly necessary (para 127)) the data collected/retained and that the DRD should be suspended until the EU legislature adopts measures necessary to remedy the invalidity, but such measures must be adopted within a reasonable period (para 157-158). So at least in this regard the AG actually supports the stance of the HC (even though no reference was made on this point) and may therefore have had implications for the IPB (which does not require judicial or independent authorisation/review) in relation to access to communications data without a word from the CJEU.

Many thanks to Steve Peers for helpful comments on an earlier draft.