Category: 8.2 Judicial cooperation in criminal matters

An EU Institutions “Google Maps”? Six years after Lisbon Treaty still the quest for a common compass …

by Emilio DE CAPITANI (*)

As a preliminary disclaimer I have to say that the following observations could not be seen as neutral as I have been an official of the European Parliament for 26 years and it is more than likely that I have been influenced by that experience. That having been said what I will say echoes a direct experience in some crucial moments of the interinstitutional relations since the negotiation of the Single European Act until the entry into force of the Lisbon Treaty. I have to say that the evolution of the role of the European Parliament has not been linear even if its importance was growing Treaty after Treaty but also with some stops, not to say, some regressions, as I am afraid it is happening, quite surprisingly, since the entry into force of the Lisbon Treaty.

However it has been an exciting experience to see how that institution has been able to play a decisive role when the European Community first and the European Union later faced the challenge of establishing an internal market as a supranational area without borders, and, even more when after the fall of the Berlin Wall, the Member States decided, albeit with several reservations to transform progressively the EU in a full-fledged supranational political organization.

It looks like ages ago, when, for instance, under the impulsion of Commissioner Sutherland the Institutions tried in ’87 to define their first common legislative programme.  Moreover it was an extraordinary experience to accompany the European Parliament in its transformation from a consultative body  to a co-legislator  by shaping its internal rules dealing with the legislative activity and the special relation with the Commission (also in the Comitology framework -see OJ L 197, 18.7.1987) or , after Maastricht when the first modus vivendi on codecision procedures was agreed.

The EU Freedom security and Justice area at the core of Member States and EU Institutions relations  

But probably the most interesting experience also from an interinstitutional perspective  has been when, before the entry into force of the Amsterdam treaty I had the chance to lead the secretariat of the Civil liberties Committee (LIBE) which was (and still is) in charge of almost all the freedom security and justice related policies. At that time LIBE was also the Committee in direct relation with the EU Member States notably when they played their role as initiators of EU legislation (which is still the case for judicial cooperation in criminal matters).

From 99 until 2009 (at the entry into force of the Lisbon Treaty) the legislative dialogue between the Member States meeting in the Coreper II, the various Council Presidencies  and LIBE was intense and fruitful notably in the domains already covered by the codecision procedure such as borders, migration and asylum as well as domains giving specific expression (to use a CJEU definition) to fundamental rights such as anti-discrimination measures, transparency and data protection.

To prove the seriousness of the relation between the EP and the Council reference can be made to the fact that it was LIBE who started in 2001 the practice of the so called “first reading agreements” in legislative procedures. It is more than unfortunate that since then this practice of informal trilogues has been progressively developed following the Council internal practice of closed doors by transforming legislative negotiations which should by definition be transparent it in a sort of Bermude’s triangle. I can only hope that the Court of Justice will draw to an end this practice which threatens the implementation of the democratic principle in the EU as well as the right to access foreseen by the Treaties and the European Charter.

Before entry into force of the Lisbon Treaty LIBE committee was also consulted on legislation dealing with judicial and police cooperation in criminal matters and it as more than clear that the Council wanted to maintain a full control and responsibility of these domain so that the only possibility for LIBE to influence the content of the EU legislation in third pillar was by indirect means through it codecision powers on community legislation which was complementary to third pillar measure (see the case of EU legislation on irregular migration,..). When this was not possible and the EP was convinced that the Council or Commission measure was infringing the Treaty or threatening its constitutional prerogatives the European Parliament also brought to the Court the Council and/or the Commission.

In this perspective of reaching an objective by indirect means a pivotal role was played by the legislation on protection of personal data where the European Parliament was co-legislator since the entry into force of the Maastricht Treaty. As, according to the Treaties (and now the Charter) protection of personal data requires an assessment of the necessity and proportionality of a measure taken also in the security domain the LIBE committee took this occasion to assess also the content and the proportionality of EU security related policies such as the infamous PNR agreement with the US. We all know that the EU will also have soon its own “EU-PNR” which have now been agreed with the EP as co-legislator also in the judicial and police cooperation in criminal matters. Someone will think that this 13 years long saga is now drawing to an end. I am not sure. I will advise him to wait at least the incoming CJEU Opinion on the EU-Canada PNR agreement and maybe the first judicial cases on the new EU rules ..

With the entry into force of the Lisbon Treaty and of the Charter of fundamental rights the EP did no more need to use transversal tactics to reach the objectives he was searching before. Judicial and police cooperation was finally ordinary competence to be dealt with qualified majority and fall in the co-decision procedure. Moreover the Charter emphasis on the rights of the individual in all the EU policies and notably in  the freedom security and justice area was paving the way to what LIBE was asking for since its creation in 1992.

After Lisbon still need of a legal “Google Maps” ?

What is paradoxical is what happened at interinstitutional level after the entry into force of  that Treaty and of the Charter. The EU institutions have not all moved at the same pace towards the new constitutional legal framework order and this is a source of growing misunderstanding between them and ultimately of confusing messages for the EU citizens (what can explain why many of them are turning their back to the EU construction) .

If there was a Legal “Google Maps” I  would say that now the only institution which is strongly rooted in Lisbon is, no surprise, the CJEU (even if sometime it is also taken by the nostalgia of the previous world..).

Let me quote some statements in the CJEU in Opinion 2/13 where it is written that : “the founding treaties of the EU, unlike ordinary international treaties, established a new legal order, possessing its own institutions, for the benefit of which the Member States thereof have limited their sovereign rights, in ever wider fields, and the subjects of which comprise not only those States but also their nationals… …These essential characteristics of EU law have given rise to a structured network of principles, rules and mutually interdependent legal relations linking the EU and its Member States, and its Member States with each other, which are now engaged, as is recalled in the second paragraph of Article 1 TEU, in a ‘process of creating an ever closer union among the peoples of Europe’…

This legal structure is based on the fundamental premise that each Member State shares with all the other Member States, and recognises that they share with it, a set of common values on which the EU is founded, as stated in Article 2 TEU. That premise implies and justifies the existence of mutual trust between the Member States that those values will be recognised and, therefore, that the law of the EU that implements them will be respected. Also at the heart of that legal structure are the fundamental rights recognised by the Charter (which, under Article 6(1) TEU, has the same legal value as the Treaties), respect for those rights being a condition of the lawfulness of EU acts, so that measures incompatible with those rights are not acceptable in the EU

The autonomy enjoyed by EU law in relation to the laws of the Member States and in relation to international law requires that the interpretation of those fundamental rights be ensured within the framework of the structure and objectives of the EU… As regards the structure of the EU, it must be emphasised that not only are the institutions, bodies, offices and agencies of the EU required to respect the Charter but so too are the Member States when they are implementing EU law.

The pursuit of the EU’s objectives, as set out in Article 3 TEU, is entrusted to a series of fundamental provisions, such as those providing for the free movement of goods, services, capital and persons, citizenship of the Union, the area of freedom, security and justice, and competition policy. Those provisions, which are part of the framework of a system that is specific to the EU, are structured in such a way as to contribute — each within its specific field and with its own particular characteristics — to the implementation of the process of integration that is the raison d’être of the EU itself. Similarly, the Member States are obliged, by reason, inter alia, of the principle of sincere cooperation set out in the first subparagraph of Article 4(3) TEU, to ensure, in their respective territories, the application of and respect for EU law. In addition, pursuant to the second subparagraph of Article 4(3) TEU, the Member States are to take any appropriate measure, general or particular, to ensure fulfilment of the obligations arising out of the Treaties or resulting from the acts of the institutions of the EU “

Are these ambitious concepts also shared by Member States or the Council or in our Google Maps is still trapped in the Maastricht interpillars games (with some Member States even dreaming to go back in the pre-Schengen era)?  The experience of the last six years and of notably of the last year on the Migration Border and Asylum Crisis shows that several Member States are going backward to the old good time  and do not change the former legal situation notably in police and judicial cooperation in criminal matters.

The fact that even today

  • there is no real Internal Security Strategy adopted with the support of the European Parliament and in full knowledge of national Parliament (and this notwithstanding the art. 70 and 71 of the Treaty on functioning of the European Union requires a close parliamentary oversight of these policies);
  • that the “threats” EU impacting on the EU citizens are defined, measured and assessed only at bureaucratic level at national and european level within EU Agencies (such as EUROPOL, FRONTEX and EUROJUST ) whose oversight is almost virtual
  • that sharing security related information between EU MS is still mostly on voluntary basis
  • that the so called “policy cycle” bringing together (on a voluntary basis) the MS administrations is still managed without a credible connection with judicial authorities at EU and national level.

All this shows that notwithstanding 40 years of engagement (since Trevi in 1975) Member States are still far from sharing their experience and implement the principle of solidarity in the old latin meaning where faced to a common problem everyone is responsible “in solidum” with all the others.

As an EU citizen I am appalled to see that even after more than one year of successive terrorists attacks the EU has not yet decided:

  • to build an EU Anti-terrorism Enquiry Commission (as the US did decided immediately after 9/11)
  • to strengthen the powers of EUROJUST in terrorist domain (as required also by the 2005 decision) in preparation of a future EPPO competence as already foreseen by the Treaties. Let’s hope that the European Parliament unblock the Commission proposal and that the Ministers of interior will not wait for other terrorists attacks before launching a credible “lisbonised” Eurojust (if needed even in a form of enhanced cooperation) .

What is worrying is that instead of strengthening the operational cooperation on specific and measurable targets,  the measures adopted (or under negotiations) at EU level increase the impact on individual’s rights.

Under this perspective it is doubtful that the Council has followed its own internal guidelines according to which (quote) : The recent case law of the European Court of Justice[1] confirms that the Court will not satisfy itself with anything less than a strict assessment of the proportionality and necessity of measures that constitute serious restrictions to fundamental rights, however legitimate the objectives pursued by the EU legislature. It also indicates that such measures do not stand a serious chance of passing the legality test unless they are accompanied by adequate safeguards in order to ensure that any serious restriction of fundamental rights is circumscribed to what is strictly necessary and is decided in the framework of guarantees forming part of Union legislation instead of being left to the legislation of Member States.  (emphasis added)

And where may you find the European Parliament in a virtual Google Maps ?

I think that you can find it  somewhere between Amsterdam and Lisbon as it looks more and more afraid to take position in domains which are clearly still unfamiliar to him and on which relevant background informations are not shared by the Commission or by the Member States (not to speak of the EU agencies and of the so called COSI). I don’t see other explanation to the fact that more and more frequently the EP start working on the most sensitive issues only after the Member States have agreed on something. So, one sensible way to help the EP in playing its co-legislative role would be to share with a credible picture of what is happening on the ground in the different Member States. It is quite promising that when this happens (as now in the framework of the new Shengen evaluation mecahnism)  the EP and the national parliaments feel much more confident than before. But when the same will happen in the framework of the mutual evaluation of  judicial and police cooperation in criminal matters as it is required by the art. 70 of the TFEU ? In the absence of this regular exchange of information how can be improved the mutual recognition of national measures?

This is today a rhetorical question because the Member States with the support of the Commission, which, as we all know, is the “guardian of the Treaties have just decided that the mutual evaluation should remain on a voluntary basis as framed in a Joint Action dating back to the Maastricht era.

Will the EP accept to be continuously be side-lined? I am afraid it will and this not for a legal or institutional reasons but for the very trivial reason that its current political majority is in a way or another mirrored in the main Member States governments so that it may feel uneasy in dealing with issues which can place these Governments in a wrong perspective. As a citizen I can’t but blame this situation because I consider that a weak Parliament could not protect my rights and fullfill the objectives outlined in the EU Charter. Any way what the European and national parliaments don’t dare to do is more and more done by national judges (see the NS and ARANYOSI Jurisprudence as well as the recent ruling of the BVG on the European Arrest Warrant).

Again as Citizen I would prefer to be protected by a clearly defined law and not depend from the appreciation of a judge but this is apparently more and more what we have expect from the EU legislation as the envisaged Directive on terrorism I have cited above.

And the Commission ? In a virtual Google maps the Commission is in a sort of Neverland still trying to re-build its pre-Santer role by trying to become at the same time the Guardian  of the Treaty as well as the true Government of the EU. Has this strategy any chance to succeed ? Could the President of the Commission pretend to have also a support of the EU citizens in alternative to the EP itself because of the Spitzencandidat invented in the very last days before the EU elections ? I am not sure even if are now countless the family’s photo bringing together the Presidents of the EP, of the European Council and of the Commission.

What I notice instead is that executive functions also in the Freedom Security Justice Area are more and more transferred to European Agencies where the Member States come back on the driving seat by becoming some pre-federal entities (which are deemed to be INDEPENDENT both from the Commission and of the Parliament which can play a light oversight). This “agencification” trend notably in the freedom security and justice area can now be further developed thanks to the ESMA ruling and will probably progressively change the institutional balance.

The case of Frontex is to my understanding a proof of this. It is unfortunate that until now the Member States have not found the same courage for the EPPO notwhistanding the explicit provisions in  the Treaty. In this perspective the Better Law Making agreement by which the Commission is trying to harness the legislative policy cycle looks more like a tail which pretend to move a dog ….  But even when the Commission has to play its role faces some difficulties . Look at the draft Directive on terrorism which has been presented without a credible impact evaluation of the existing legislation nor of the new rules. Guess how could had been the text if it was not proposed by the same Vice President of the Commission in charge of the Better Law making and of the implementation of the EU Charter..

I can’t end my short intervention without making reference to a new “Quasi-EU” Institution more and more proactive within the freedom security and justice area. We can call it the “Head of State and of Governement Group” which has recently agreed with Turkey a so-called Deal. The EP and also some scholars have raised questions about the legal nature of such a deal. The provisional answers given until now even the President of the European Council is that it is binding but it is not a formal EU agreement. This remind me the famous Magritte painting showing a pipe but stating “this is not a pipe”. Following the same logic the next question is;

“Is this still an European Union or are we already looking at in the new season of Games of Thrones ?

(*) NOTA BENE : this is a transcripition of an intervention at the ECLAN Seminar on : The Needed Balances of EU Criminal Law: Past, Present and Future  (Brussels 25-26 April 2016)

NOTES

[1]             See Judgment of 8 April 2014, Cases C‑293/12 and C‑594/12,  Digital Rights Ireland (information note by the Council Legal Service in doc. 9009/14)

La sécurité digitale à l’heure des crises migratoire et terroriste, le noeud gordien de l’interconnexion des fichiers

ORIGINAL PUBLISHED ON CDRE SITE (20 AVRIL 2016)

par Pierre Berthelet, CDRE

La situation que connaît actuellement l’Union européenne n’aura échappé à personne. Qu’il s’agisse de la crise migratoire ou de la crise terroriste générée par les attentats à répétition en 2015 et en 2016, le remède préconisé par les États membres par la voix du Conseil et du Conseil européen, consiste à vouloir sécuriser davantage les frontières extérieures de l’Union européenne.

La protection renforcée de celles-ci constitue l’enjeu majeur de la lutte menée contre le phénomène terroriste, dont l’agenda converge désormais clairement avec la politique européenne en matière migratoire, comme l’atteste la communication de la Commission du 6 avril 2016 intitulée « des systèmes d’information plus forts et plus intelligents pour les frontières et la sécurité ». Le texte affirme à cet égard très clairement une « interconnexion dynamique » entre police, migration et gestion des frontières.

La crainte actuelle est, en particulier, le phénomène des combattants de l’État islamique venant d’Irak et de Syrie. L’organe de coordination antiterroriste belge, l’OCAM, a d’ailleurs souligné, le 19 avril 2016, un risque considérable d’attentat de la part de ces combattants, des Européens partis faire le Jihad au Moyen-Orient et rentrant aguerris (phénomène dit des « returnees »).

Nouveaux défis, mais anciennes solutions donc. L’observateur ne peut qu’avoir une impression de déjà-vu : les choix de ces derniers mois formulés par les chefs d’État et de gouvernement, inspirant les orientations contenues dans cette communication, ressemblent, à bien des égards, à ceux des Conseils européens de Laeken de 2001, de Séville de 2002 ou encore de Thessalonique 2003. À l’époque, l’Union était déjà confrontée aux problématiques du terrorisme et d’échouage de migrants sur les côtes européennes. Les agendas antiterroriste et migratoire se mêlaient alors autour de la sécurisation des frontières extérieures pour éviter toute intrusion possible d’agents d’Al-Quaïda dans l’UE, dissimulés dans les colonnes de migrants, jetant ainsi les fondations du projet des frontières électroniques (smart borders).

Anciennes solutions, mais nouveaux défis néanmoins. La communication du 6 avril 2016, accompagnée d’une proposition de règlement instituant le « Système Entrée-Sortie » (correspondant à une révision du précédent projet présenté en 2013, jugé trop onéreux par les États membres), marque un nouvel épisode dans la création des frontières électroniques européennes. Elle s’inscrit dans le contexte d’enjeux très actuels : la protection des frontières extérieures au prisme de la lutte antiterroriste a trait à deux problèmes distincts, celui des « combattants étrangers » (1) et celui de la fraude documentaire (2).

Dans le premier cas, il s’agit de contrôler les flux de voyageurs sortants pour empêcher ces « combattants étrangers » (foreign fighters), c’est-à-dire les jeunes Européens désireux de partir faire le Jihad au Moyen-Orient. Dans le deuxième cas, il s’agit de contrôler les flux de population, pour la plupart fuyant la guerre dans cette région. En réalité, ces deux problématiques se recoupent car la fraude documentaire concerne le contrôle des titre de voyage dont sont porteurs les flux de voyageurs, y compris les migrants irréguliers rassemblés dans les hotspots. Elle a trait aussi à l’identification des « combattants étrangers » franchissant les frontières Schengen avec de faux papiers. Les solutions apportées concernent, dans un cas comme dans l’autre, un meilleur déploiement des fichiers et une plus grande interconnexion de ceux-ci (3).

Analyser la manière dont l’Union s’efforce de répondre à ces deux problématiques distinctes mais sécantes est instructif. Cette réponse s’exprime de façon commune, le recours à la sécurité digitale, c’est-à-dire l’utilisation accrue des systèmes d’information et de communication et ce, en écho au phénomène de digitalisation de la vie sociale observable dans d’autres secteurs à l’ère du Big Data, tels que la santé digitale. Les problématiques secondaires, fraude documentaire et combattants étrangers, se trouvent au cœur de la résolution des crises migratoire et terroriste, elles-mêmes étroitement imbriquées. Il s’opère à ce propos un phénomène d’intrication immigration-terrorisme dans un contexte où s’échafaudent des capacités de gestion de crise horizontale, c’est-à-dire de polycrises.

L’interopérabilité des systèmes d’information devient alors un enjeu central, crucial même, car de son succès dépend la protection effective de l’Union. La sécurité digitale, expression archétypale dusolutionnisme technologique, constitue un nœud gordien au sens où le sort de lutte antiterroriste dépend de la réussite de l’interopérabilité des systèmes d’informations, qu’ils soient à finalité sécuritaire ou migratoire, l’une et l’autre apparaissant désormais mêlées.

1. Verrouiller les frontières pour résoudre le problème des combattants étrangers 

Continue reading “La sécurité digitale à l’heure des crises migratoire et terroriste, le noeud gordien de l’interconnexion des fichiers”

(Legislative Alert) Data Protection : the draft Directive covering public security policies

ORIGINAL TEXT ACCESSIBLE IN ALL EU LANGUAGES ON THE EU COUNCIL SITE 

Nota bene : the text below is the Council “position” which will be adopted in the coming hours by written procedure by the Coreper and sent to the EP for the second reading (currently foreseen for the APRIL  session plenary together with the EU  General Regulation on data protection and the draft Directive on the so called “EU PNR”). For the time being these passages foreseen by art. 294 TFEU are seen by the institutions as mere formalities as an “informal” agreement on the draft Council Position has already been reached on December 17/18 with an “informal” vote of the relevant Parliamentary committee (LIBE).

Following the “informal” practice of interinstitutional “early agreements” the Chairman of the Parliamentary Committee has already informed the Council that no amendments will be submitted by LIBE when the text of the Council position will be formally submitted to the EP. Therefore since last December the text  below has already been revised from the Jurist linguistsso that it can be published on the official Journal maybe already in May or June after the formal vote of the EP and the  final adoption by the Council as well as the signature of the EP and Council Presidents.

Below the text of the Council Position as well as of the Statement of reasons which according to the Treaty  should explain to the EP why the text is different from the one voted by the latter. Again this has become a pure formality as the EP has already negotiated with the Council the amendments to the original Commission Proposal. One can guess if the loser of this “informal” way of proceeding where a “Position” of an institution is already a consolidated compromise is the ordinary European citizen who has no real means to understand who between the EP and the Council should be taken accountable for the different choices made to reach the “compromise”. 

Comments on the content of the “Council Position” below will follow

EDC 

—

(Draft) Statement of the Council’s reasons on the  Position of the Council on DIRECTIVE (EU) 2016/… OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of … on the protection of natural persons with regard to the processing of personal data by competent authorities for the purposes of the prevention, investigation, detection or prosecution of criminal offences or the execution of criminal penalties, and on the free movement of such data, and repealing Council Framework Decision 2008/977/JHA

INTRODUCTION Continue reading “(Legislative Alert) Data Protection : the draft Directive covering public security policies”

“EU-US Privacy Shield” : Towards a new Schrems 2.0 Case ? 

NOTA BENE : This is not a final version (San Francisco, April 3rd 2016)

By Max SCHREMS

INTRO

In the past weeks I was repeatedly asked by policy makers, MEPs, DPAs and interested lawyers and individuals about a written summary of my assessment of the proposed “Privacy Shield” system. This document is a quick response to these requests. Due to the limited time it may contain some typos and minor errors.

The debate on “Privacy Shield” is ongoing and a full proper academic review of the more than 120 page draft Commission decision, in context of the European and US laws and decisions, is a substantive project outside of the scope of this document, which was written as a citizen over the course of a weekend. This document can therefore only highlight some potential issues identified in summarize an initial examination of the proposed “Privacy Shield” and does not constitute a final or deep review.

The European Commission and the US government, as well as some lobby groups, have extensively promoted the positive sides of “Privacy Shield” and the improvements compared to the previous “Safe Harbor” system. I will not repeat these points in this document. Instead this document focuses on possible problems, shortcomings and issues of the proposed system, to allow overall balanced view.

The level of knowledge varies between persons requesting this document. Unfortunately this means that some elements may be irrelevant, too generalized or explained in very simple terms for experts in the field of data protection and/or EU law.

In the following comments I am primarily (but not exclusively) focusing on a legal analysis. As an initial political comment, I would therefore like to highlight that I am of the view that the EU and the US should reach an agreement that replaces “Safe Harbor”. The aim of case C-362/14 was to create a situation where the political leaders on both sides of the Atlantic have to work towards a new deal that remedies the obvious problems disclosed by Snowden. I unfortunately feel that the current policy makers within the European Commission have not seen this situation as an opportunity to work towards an improved framework that would protect the fundamental right to privacy, but instead as a problem, that shall now be swept under the rug.

1.PRIVATE SECTOR / PRIVACY SHIELD PRINCIPLES Continue reading ““EU-US Privacy Shield” : Towards a new Schrems 2.0 Case ? “

WORTH READING : U.S.-EU Cooperation Against Terrorism

REPORT PUBLISHED BY STATEWATCH

by Kristin Archick 

Summary

The September 11, 2001, terrorist attacks on the United States and the subsequent revelation of Al Qaeda cells in Europe gave new momentum to European Union (EU) initiatives to combat terrorism and improve police, judicial, and intelligence cooperation among its member states. Other deadly incidents in Europe, such as the Madrid and London bombings in 2004 and 2005, respectively, injected further urgency into strengthening EU counterterrorism capabilities.

Among other steps, the EU has established a common definition of terrorism and a common list of terrorist groups, an EU arrest warrant, enhanced tools to stem terrorist financing, and new measures to strengthen external EU border controls and improve transport security.

Over the years, the EU has also encouraged member states to devote resources to countering radicalization and terrorist recruitment; such efforts have received renewed attention in light of concerns about the threats posed by European fighters returning from the conflicts in Syria and Iraq, highlighted most recently by the November 13, 2015, attacks in Paris, France.

Promoting law enforcement and intelligence cooperation with the United States has been another top EU priority since 2001. Washington has largely welcomed enhanced counterterrorism cooperation with the EU. Since 9/11, contacts between U.S. and EU officials on police, judicial, and border control policy matters have increased substantially.

A number of U.S.-EU agreements have been reached; these include information-sharing arrangements between the United States and EU police and judicial bodies, U.S.-EU treaties on extradition and mutual legal assistance, and accords on container security and airline passenger data.
In addition, the United States and the EU have been working together to curb terrorist financing, strengthen transport security, and address the foreign fighter phenomenon.
Nevertheless, some challenges persist in fostering closer U.S.-EU cooperation in these fields.
Among the most prominent and long-standing are data privacy and data protection issues.
The negotiation of several U.S.-EU information-sharing agreements, from those related to tracking terrorist financial data to sharing airline passenger information, has been complicated by EU concerns about whether the United States could guarantee a sufficient level of protection for European citizens’ personal data.
EU worries about U.S. data protection safeguards and practices were further heightened by the unauthorized disclosures of U.S. National Security Agency (NSA) surveillance programs in mid-2013 and subsequent allegations of U.S. collection activities in Europe.
Other issues that have led to periodic tensions include detainee policies, differences in the U.S. and EU terrorist designation lists, and balancing measures to improve border controls and border security with the need to facilitate legitimate transatlantic travel and commerce.
Congressional decisions related to data privacy, intelligence-gathering, border controls, visa policy, and transport security may affect how future U.S.-EU counterterrorism cooperation evolves.
EU officials have welcomed passage of the Judicial Redress Act (P.L. 114-126) to provide EU citizens with a limited right of judicial redress for privacy violations in a law enforcement context, but they have expressed unease with some provisions in the Visa Waiver Program Improvement and Terrorist Travel Prevention Act of 2015 (passed as part of P.L. 114-113 in the wake of the Paris attacks and heightened U.S. concerns about European citizens fighting with terrorist groups abroad).
Given the European Parliament’s growing influence in many of these policy areas, Members of Congress may be able to help shape the Parliament’s views and responses through ongoing contacts and the existing Transatlantic Legislators’ Dialogue (TLD). This report examines the evolution of U.S.-EU counterterrorism cooperation, current issues, and the ongoing challenges that may be of interest in the 114th Congress.

NB Also see CRS Report R44003, European Fighters in Syria and Iraq: Assessments, Responses, and Issues for the United States, coordinated by Kristin Archick.

FULL REPORT : U.S.-EU  Cooperation Against  Terrorism  Continue reading “WORTH READING : U.S.-EU Cooperation Against Terrorism”

TERRORISM : EDRI RECOMMENDATIONS FOR THE EP REPORT ON TERRORISM

FOR A GENERAL OVERVIEW OF THE LEGISLATIVE PREPARATORY WORKS OF THE EU DIRECTIVE ON TERRORISM SEE HERE 

EDRI Recommendations for the European Parliament’s
Draft Report on the Directive on Combating Terrorism (NDR : emphasis are added)

In the view of the Civil Liberties, Justice and Home Affairs Committee (LIBE)’s legislative work on the Directive on Combating Terrorism , European Digital Rights (EDRi) would like to make a set of recommendations regarding the provisions falling within our scope of work, i.e. the protection of human rights in the digital environment. The absence of comments on certain provisions shall not be interpreted as an endorsement.

EDRi supports the aim of achieving a united, coherent and effective response to terrorism. Notwithstanding the importance of ensuring that adequate measures are in place to fight terrorism, EDRi is concerned about the speed that this file is taking. Terrorism is a very complex issue and laws must be balanced, smart and work in times of crisis. With the view to being constructive in this process, EDRi encourages the rapporteur, shadow rapporteurs and LIBE members to consider EDRi’s recommendations outlined before, when and after proposing amendments. EDRi’s wording proposals are based on the Commission’s proposal unless expressly specified (in the latter case, to explain the changes needed to the rapporteur’s draft report).

I. Human Rights Impact assessment needed

EDRi regrets the absence of an impact assessment. This is in contradiction with the EU Better Regulation Guidelines and the European Commission’s Better Regulation tool No. 24. While parts of the text are similar to the 2008 Framework Decision, six years is a very long time to wait for a review of an issue of such importance. In addition, the Council and the Parliament rapporteur are proposing new elements without any obvious evidence base.

Civil society has not been awarded the opportunity to provide input, evidence or expertise prior to the proposal of the Directive. The justification given by the Commission was based on the urgency of the file. However, this contradicts the Member States’ proposal to transpose the Directive not in twelve months as proposed by the European Commission and the EP rapporteur, but in twenty-four months.
EDRi’s proposal:

We urge the European Parliament to ask the European Commission to conduct an Impact assessment immediately.

II. Strong and meaningful human rights safeguards

a) General clause

Contrary to the Framework Decision 2002, as amended in 2008, the Commission’s proposal for a Directive does not contain any reference to fundamental rights and freedoms in the Articles.

• Recital 19 should be deleted and replaced by a new Article

We consider it problematic that Recital 19 states that the Directive respects fundamental rights, since this is not necessarily a given. A similar phrasing was also used in Recital 22 of Directive 2006/24/EC (the Data Retention Directive), which was later ruled to be in violation of the Charter of Fundamental Rights of the European Union. An adequate fundamental rights clause should emphasise the limitations on fundamental rights that will be put in place as a result of this Directive, as well as the duty of Member states to observe such rights when implementing it, so judges can interpret the law adequately.

EDRi thus recommends rephrasing Recital 19 and converting it into an Article, based on the wording used in Article 1(2) of the 2002 Framework Decision on Combating Terrorism, Article 2 of the 2008 Framework Decision on Combating Terrorism, Article 12 of the Convention on the Prevention of Terrorism of the Council of Europe and Article 8 of the Additional Protocol. In addition, the Directive should emphasise that restrictions on fundamental rights must be provided for by law, be necessary and proportionate for the aim pursued..

EDRi’s proposal (providing an alternative wording for the rapporteur’s AM 53):

Article 23a (new): Fundamental Rights and Principles
1. This Directive respects the principles recognised by Article 2 of the Treaty on the European Union, respects fundamental rights and freedoms and observes the principles recognised in particular by the Charter of Fundamental Rights of the European Union, including those set out in Chapters II, III, V and VI thereof which encompass inter alia the right to liberty and security, freedom of expression and information, freedom of association and freedom of thought conscience and religion, the general prohibition of discrimination in particular on grounds of race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, the right to respect for private and family life and the right to protection of personal data, the principle of legality and proportionality of criminal offences and penalties, covering also the requirement of precision, clarity and foreseeability in criminal law, the presumption of innocence as well as freedom of movement as set forth in Article 21(1) of the Treaty on the Functioning of the European Union and Directive 2004/38/EC. shall not have the effect of altering the obligation to respect fundamental rights and fundamental legal principles as enshrined in the Charter of Fundamental Rights of the European Union and Articles 2 and 6 of the Treaty on European Union, as well as in the European Convention for the Protection of Human Rights and Fundamental Freedoms and International humanitarian law.
2. Restrictions to fundamental rights and freedoms must be provided for by law, be necessary and proportionate for the aim pursued.
3. This Directive has to be implemented in accordance with these rights and principles the Charter of Fundamental Rights and principles of EU law.

b) Non-discrimination

The current text of the proposed Directive seems to be neutral, but taken into account the explanatory memorandum and certain provisions of the draft Directive, this legal instrument is highly likely to be discriminatory in practice. As the UN Special Rapporteur on Counter-Terrorism and Human Rights points out, “on paper most strategies to counter violent extremism are generic. In practice, however, they tend to target specific groups determined to be most ‘at risk’ of being drawn to violent extremism”.

The current proposal only provides a rather weak and narrow non-discrimination safeguard in Recital 20, which is restricted to criminal offences. EDRi encourages the European Parliament to strengthen this provision, in line with the EU Charter and the UN’s Plan of Action against Violent Extremism leading to terrorism, which calls on UN Member States to strengthen “the rule of law, repealing discriminatory legislation and implementing policies and laws that combat discrimination, marginalisation and exclusion in law and in practice”.

EDRi’s proposal (amending the Commission’s proposal):

Recital 20
The implementation of the criminalisation under this Directive should be proportional to the nature and circumstances of each case the offence, with respect to the legitimate aims pursued and to their necessity in a democratic society, and should exclude any form of arbitrariness or discrimination.

c) Freedom of expression

The draft Directive contains provisions which can have a chilling effect on freedom of expression. In the words of the European Court of Human Rights (ECtHR), freedom of expression applies to “information” or “ideas” that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb the State or any sector of the population.

The Directive must ensure that “any restrictions on freedom of expression are clearly and narrowly defined and meet the three-part test of legality, proportionality and necessity”, as the UN Plan of Action Against Violent Extremism outlines. The Directive should help prevent abusive and arbitrary practices in Member States (see our Annex). Hence, EDRi encourages policy makers to adopt an Article which includes wording based on Recital 14 and Article 2 of the Framework Decision 2008.

EDRi’s proposal:

Article 23b (new) Freedom of expression
1. Nothing in this Directive may be interpreted as being intended to reduce or restrict the dissemination of information for the expression of an opinion. The expression of radical, polemical or controversial views in the public debate on sensitive political questions, including terrorism, fall outside the scope of this Directive and, in particular, of the definition of public provocation to commit a terrorist offence.
2. This Directive shall not have the effect to take measures in contradiction of fundamental principles relating to freedom of expression, including freedom of the press and the freedom of expression resulting from constitutional traditions or rules governing the rights and responsibilities of, and the procedural guarantees for, the press or other media where these rules relate to the determination or limitation of liability.

c) Emergency situations

The Directive must work for situation of crisis or emergency, in line with Article 15 of the European Convention on Human Rights (ECHR). In this sense, the UN Plan of Action on violent extremism leading to terrorism specifies that “certain rights are non-derogable even in time of public emergency which threatens the life of the nation”. As the five UN Special Rapporteurs highlighted regarding France’s situation after the Paris Attacks, “[w]hile exceptional measures may be required under exceptional circumstances, this does not relieve the authorities from demonstrating that these are applied solely for the purposes for which they were prescribed, and are directly related to the specific objective that inspired them.”

EDRi’s proposal:

Article 23c (new) Emergency situations and fundamental rights
In time of war or other public emergency threatening the life of the nation, Member States may take measures to derogate certain rights, in line with EU and International law. Such circumstances do not relieve the authorities from demonstrating that the measures undertaken are applied solely for the purpose of combating terrorism and are directly related to the specific objective of combating terrorism.

d) Effective remedies for Human Rights violations

The UN’s Plan of Action against violent extremism leading to terrorism also asks UN Member States to ensure accountability for human rights violations “through criminal procedures adhering to due-process guarantees.” This is absent from the European Commission’s proposal. EDRi’s proposal is based on the model clause proposed in the former UN Special rapporteur’s report on best practices when countering terrorism:

EDRi’s proposal:

Article 23d (new) Right to effective remedies
1. Any person whose fundamental rights and freedoms have been violated in the exercise of counter-terrorism powers or the application of counter-terrorism law has a right to a speedy, effective and enforceable remedy.
2. Member States’ judicial authorities shall have the ultimate responsibility to ensure that this right is effective.

e) Human rights safeguards for specific offences

All provisions need to be read in compliance with fundamental rights and freedoms. In addition, when referring to a concept that does not have a harmonised definition, EU institutions should provide a definition in Article 2, in order to comply with the principle of legality so that, as the UN Special Rapporteur on Human Rights and combating terrorism stated, “criminal liability is narrowly and clearly defined.”

III. Terrorist offences

• Article 2: definitions

The draft Directive contains many legal concepts which can mean different things. The Directive needs to comply with the principle of legality.

EDRi’s proposal:

Should the Directive contain legal terms which are not defined in the other provisions, Article 2 should be amended to add the appropriate definitions. For specific examples, please see our recommendations per provision in this document.

• Recital 5 and Article 3: terrorist offences

Article 3 defines the concept of ‘terrorist offences’. Recital 5 says that the Member States’ definition of terrorist offences should cover forms of behaviour “punishable also if committed through the Internet, including social media”. However, Articles 3(1)(b) and 3(2)(i) are not clear about what this means in practice.

• Recital 5

It is not clear why a reference to the Internet is needed. Criminal offences should be technology-neutral insofar as possible.

EDRi’s proposal:

Recital 5
Taking into account of the evolution of terrorist threats and legal obligations to the Union and Member States under international law, the definition of terrorist offences, including offences related to a terrorist group and offences related to terrorist activities, should be further approximated in all Member States, so that it covers more comprehensively conduct relate to in particular foreign terrorist fighters and terrorist financing. These forms of behaviour should be punishable also if committed through the Internet, including social media.

◦ Article 3(1)(b) on ‘unduly compelling a Government or international organisation ‘

Pursuant to Article 3(1)(b), an offence may qualify as a terrorist offence when it is committed with the aim of ‘(b) unduly compelling a Government or international organisation to perform or abstain from performing any act’. Notwithstanding its use in existing legislation, the use of the word ‘unduly‘ in this context is problematic, since it lacks a clear definition or legal import. An improved phrasing might refer to ‘using violence or the threat of violence to compel’, as we do not see how any non-violent attempt at influencing governmental policy could qualify as terrorism. Without such a modification, this provision risks affecting legitimate forms of protest and civil disobedience under the concept of terrorism. For instance, as the UN Human Rights Committee states and the UN Special Rapporteur on Human Rights and Countering Terrorism endorses, “no site or information dissemination system should be prohibited from publishing material solely on the basis that it may be critical of the government or the social system espoused by the government”.

EDRi’s proposal:

Article 3
1. (…)
(b) using violence or the threat of violence to compel or seek to compel unduly compelling a Government or international organisation to perform or abstain from performing any act.

◦ Article 3(2)(i)

Article 3(2) defines what ‘intentional acts’ means. EDRi considers Article 3(2)(i)’s wording is too broad and could lead to arbitrary and discriminatory abuses. EDRi suggests to bring it into line with Recital 13.

EDRi’s proposal:

Article 3
2. (…)
(i) seriously threatening to commit any of the acts listed in points (a) to (h), on the basis of objective, factual circumstances.

• Article 15: relationship to terrorist offences

If the amendments we suggest are adopted, the proposed text from the Commission appears unproblematic.

• Article 16: aiding or abetting, inciting and attempting

Article 16 is intended to prohibit ancillary offences related to terrorist offences, namely aiding, abetting, inciting and attempting. We see a significant overlap with the provisions under Title III (Offences related to Terrorist Activities), since these are also aimed at prohibiting (specific forms of) assistance for terrorist offences. It would appear that many of these offences related to terrorist activities could also be treated under the more general principles referenced in Article 16. Conversely, many related offences currently covered by Article 16 have already found more specific treatment in Title III. This confusion generated by this dual approach is best illustrated by the fact that aiding of terrorism (e.g. through financing or providing training) itself becomes a specific offence.

As a result of this extension, the Directive’s scope touches on activities with little to no direct relationship to actual terrorist acts. In the interest of legal certainty and good lawmaking, we would encourage a closer specification of the interaction between Article 16 and Title III of the Directive, with the aim of reducing overlap between these rules. In addition, Article 16(2) is redundant as Article 5 is the provision dealing with incitement to terrorism.

Therefore, EDRi proposes to delete it. In case MEPs disagree with its deletion, EDRi proposes the following alternative:

EDRi’s proposal:

Article 16
1. Each Member State shall take the necessary measures to ensure that aiding or abetting an offence referred to in Articles 3 to 8 and 11 to 14 is made punishable.
2. Each Member State shall take the necessary measures to ensure that inciting an offence referred to in Articles 3 to 14 is made punishable.
3. Each Member State shall take the necessary measures to ensure that attempting to commit an offence referred to in Articles 3, 6, 7, 9 and 11 to 14, with the exception of possession as provided for in point (f) of Article 3(2) and the offence referred to in point (i) of Article 3(2), is made punishable.

IV. Cooperation among Member States, their authorities and EU

• Information sharing about convicted individuals or suspects

EDRi agrees with the EP rapporteur’s intention in AM 17, but suggests improvements in order to comply with the principle of presumption of innocence.

EDRi’s proposal:

Recital 15c (amending the rapporteur’s proposal)*
In order to prevent and combat terrorism, a closer cross-border cooperation among the competent national and European authorities is needed with regard to expedient exchange of any relevant information from criminal records or other available sources on radicalised individuals, and in particular on individuals who are or have been subject to criminal proceedings, are suspects of a criminal offence or asset freezing. This provision is without prejudice to the [official name of police data protection Directive].

* Comments: Parts in bold and strike-through reflect the changes introduced vis-à-vis AM 17.

• ‘Electronic evidence’

Whereas the Commission remains silent on this issue, LIBE’s Draft report contains two proposals on (undefined) ‘electronic evidence’.

Regarding AM 19 and AM 20 of the Rapporteur’s Draft Report (recitals 15e and 15f), EP’s rapporteur mentions “the issues related to electronic evidence”, but does not explain what issues she is referring to or the analysis available that demonstrate the existence of a real issue. Should policy-makers wish to include a provision on ‘electronic evidence’:

• they should first define what ‘electronic evidence’ means (Article 2);

• be future-proof, being compatible with the development of technology and innovation; and

• merge both (new) recitals.

EDRi’s proposals:

Recital 15e (new) amending the rapporteur’s proposal)*
Considering that terrorist organisations rely heavily upon various electronic tools, the internet and social media to communicate, promote, and incite terrorist acts, to recruit potential fighters, to collect funds, or to arrange for other support for their activities, the issues related to electronic evidence create challenges in investigations and prosecutions of terrorist offences. Member States should therefore cooperate among each other, notably through Eurojust, to ensure a coordinated approach for the development of any necessary, proportionate and effective measures that may prove efficient in dealing with the gathering, sharing, and admissibility of electronic evidence, in compliance with [official name of police data protection directive].

*Comments: Parts in bold and strike-through reflect the changes introduced vis-à-vis AM 19.

Recital 15f(new) amending the rapporteur’s proposal)*

A Eurojust report of November 2014 notes that the growing sophistication and wider use of anonymisers, proxy servers, the Tor network, satellite links and foreign 3G networks create additional challenges to the gathering and analysis of electronic evidence, which are rendered even greater by the storage of data in the cloud. Member States should therefore cooperate among each other, in particular through Eurojust, to identify and remove possible obstacles that may occur in mutual legal assistance requests for electronic evidence.

*Comments: Parts in bold and strike-through reflect the changes introduced vis-à-vis AM 20.

• Professionalism of authorities and Human Rights training

Member State authorities vested of powers to combat terrorism must have received relevant training, including training on human rights; be accountable; and be subject to judicial oversight. EDRi’s proposal is based on wording used in para. 50 of the Recommendation of the UN Secretary-General of 24 December 2015.

EDRi’s proposal:

Recital 4c (new)
Member States should strengthen the professionalism of security forces, law enforcement agencies and justice institutions; and ensure effective oversight and accountability of such bodies, in conformity with international human rights law and the rule of law. This includes human rights training to security forces including on how to respect human rights within the context of measures taken to counter violent extremism and terrorism.

IV. Internet related provisions

In general

The Commission’s Draft Directive, or indeed all the texts on the table at the moment, refer to the Internet as being negative for society. There is no mention (not even in a recital) of the essential role of the Internet in promoting and protecting Human Rights and Fundamental Freedoms within the Union and in Third Countries. EDRi thus advises the European Parliament not to harm the progress the EU has made in the protection of Human Rights online within and outside our borders.

EDRi’s proposal:

Recital X (new)
The Internet plays an essential role in promoting values of peace, tolerance and solidarity as well as promoting and protecting Human Rights and Fundamental Freedoms within and outside the European Union.

• (new) Recital 4a – Internet Referral Units

EDRi is concerned with AM 3 of the rapporteur’s draft Report and appears unsuited to this Directive: the first part (up to “jurisdictional conflicts”) does not have any obvious link with the last part of the recital. Similarly, the second half of the recital lacks clarity; it does not specify what ‘flagging’ (notifying?) of content entails, to whom it must be ‘flagged’, by whom that content would have to be removed, and under what procedure this might take place. This Directive is aimed at criminalisation of terrorism offences rather than creating a framework of law enforcement measures. The Directive’s operative part does not contain any reference to these ‘special units’ or their activities. This recital therefore bears little relevance to the instrument as a whole. We see this as being a political statement rather than meaningful legislation.

Therefore, EDRi proposes NOT to adopt it. In case MEPs disagree with its deletion, EDRi proposes the following alternative:

Recital 4b (alternative to AM 3, Rapporteur’s Draft Report)*
Certain forms of internet use are conducive toTerrorist radicalisation, enabling fanatics throughout the world to both online and offline involves radicalised individuals connecting with each other and recruiting vulnerable individuals without any physical contact whatsoever and in a manner that is difficult to trace. Every Member State should set up a special unit tasked with flagging identifying illegal content on the internet and with facilitating the investigation, detection and removal of such content. Member States should publish statistics on numbers of reports, investigations and prosecutions taken as a result of these activities. The creation by Europol of the Internet Referral Unit (IRU), responsible for detecting illegal content and supporting Member States in this regard, while fully respecting the fundamental rights of all parties involved, in particular with regard to predictability of the measures taken, represents a significant step forward in this regard. Member States’ units should also cooperate with the Union counter terrorism coordinator and the European Counter Terrorist Centre within Europol, as well as with civil society organisations active in this field. Member States should cooperate with each other and with the relevant Union agencies on these matters.

* Comments:
Parts in bold and strick-through reflect the changes introduced vis-à-vis AM 3 of the rapporteur’s Draft Report.

These changes create accountability and judicial responsibility and allow individuals to adapt their conduct to the law (predictability). If these units had the option to simply refer unwelcome content to internet providers, with no transparency regarding investigations, legal assessment or prosecutions, UN’s standards would not be complied with. As the former Special rapporteur on the promotion and protection of Human Rights and fundamental freedoms while countering terrorism stated in its report “Ten areas of best practices in countering terrorism”, “[w]here the law relating to terrorism confers discretionary powers upon public agencies, adequate safeguards, including judicial review, must exist for the purpose of ensuring that discretionary powers are not exercised arbitrarily or unreasonably.”

Intent as a minimum standard for all terrorist offences, with a high standard of proof

• Recital 13

EDRi welcomes the attempt made in Recital 13 to clarify the meaning of ‘intent’ as used in the Directive. Distinguishing terrorist offences under this Directive from innocent activities such as travelling or debating is done primarily on the basis of intent. It is therefore crucial that intent is not merely imputed to suspects, but that it is proven on the basis of objective, factual circumstances. The proposed AM 13 heightens the standard set in the initial proposal, and EDRi therefore welcomes it, seconding the EP’s rapporteur justification. However, EDRi suggests to remove ‘as much as possible’, since this means that the intention does not have to be based on objective, factual circumstances.

EDRi’s proposal (amending the Commission’s proposal):

Recital 13
With regard to the criminal offences provided for in this Directive, the notion of intention must apply to all the elements constituting those offences. The intentional nature of an act or omission may should be inferred from objective, factual circumstances.

Unambiguous and limited rules on incitement of terrorism

• Article 5: Public provocation to commit a terrorist offence

EDRi is concerned about the ambiguous phrasing and broad scope of Article 5 and its potential for abuse, as national anti-terrorist provocation rules have been abused in cases which appear to bear little connection to actual terrorist offences (see the Annex to this document). EDRi welcomes the intention of the EP’s rapporteur to restrict Article 5. However, at this stage, none of the versions of Article 5 regarding “glorification of terrorism” comply with UN.

The former Special Rapporteur on human rights and counter terrorism stated (and the current rapporteur has supported this approach) that “for the offence of incitement to terrorism to comply with international human rights law, it
(a) must be limited to the incitement to conduct that is truly terrorist in nature;

(b) must restrict freedom of expression no more than is necessary for the protection of national security, public order and safety or public health or morals;

(c) must be prescribed by law in precise language, and avoid vague terms such as “glorifying” or “promoting” terrorism;

(d) must include an actual (objective) risk that the act incited will be committed;

(e) should expressly refer to intent to communicate a message and intent that this message incite the commission of a terrorist act; and

(f) should preserve the application of legal defences or principles leading to the exclusion of criminal liability by referring to “unlawful” incitement to terrorism.”

In addition, none of the current versions of Article 5 would prevent Member States from criminalising indirect incitement. In 2008, the UN Secretary-General recommended UN Member States that “laws should only allow for the criminal prosecution of direct incitement to terrorism, that is, speech that directly encourages the commission of a crime, is intended to result in criminal action and is likely to result in criminal sanction.” This recommendation has been backed up by the UN Special Rapporteur on Human Rights and counter-terrorism’s report of 22 February 2016 .

EDRi’s proposal (amending the Commission’s proposal) is in line with UN standards:

Article 5*
1. Member States shall take the necessary measures to ensure that the intentional and unlawful distribution, or otherwise making available of a message to the public, with the clear intent to incite the commission of one of the offences listed in points (a) to (h) of Article 3(2), where such conduct, whether or not directly expressly advocating the commission of terrorist offences, manifestly causes a clear, substantial and imminent danger that one or more such offences may be committed, is punishable as a criminal offence when committed intentionally and unlawfully
2. Member States shall only allow for the criminal prosecution of direct incitement to terrorism, that is, speech that directly encourages the commission of a crime, is intended to result in criminal action and is likely to result in criminal sanction.

*Comments: On top of the comments above, EDRi deems it necessary to further clarify three of the changes:

• Intent. Article 5 must be read in conjunction with Recitals 13 and 14. In the words of the UN Special Rapporteur on Human Rights and Combating Terrorism, the liability should not be in the illegality of the content of the speech alone, but on the “speaker’s intention or the actual impact of the speech”. Otherwise, this would prevent unnecessary or disproportionate interferences with freedom of expression.

• “Unlawfully” was included in Article 5 of the Council of Europe’s Convention on the Prevention of Terrorism and also in the model clause recommended by the UN Special Rapporteur on Counter-Terrorism and Human Rights. As the latter states, without ‘unlawfully’, the Directive would be excluding criminal liability exemptions and legal defences against it.

• “Expressly or not” instead of “directly or not” (European Convention’s language). The UN Special Rapporteur on Counter-Terrorism and Human rights proposed this modification to the European Convention on Prevention of Terrorism “to prove both a subjective intention to incite as well as an objective danger that a terrorist act will be committed”, while also including “coded language”. This recommendation is a reaction to EctHR case Leroy v France (2008) and is in line with Article 12(1) of the European Convention on Prevention of Terrorism.

Incitement to terrorism and websites’ blocking and removal

• Recital 7

Recital 7 should be deleted. As the Meijers Committee stated, “this recital leads to a disproportional infringement of freedom of expression including the freedom of the press”. “Member States may interpret this as meaning that, even if there is no real danger of future offences, offence to victims and their families is sufficient reason to criminalise expressions”. In addition, it is not clear whether with this recital Member States would be criminalising individuals sharing messages or images for ‘journalistic purposes’.

With regard to AM 6 in LIBE’s Draft Report, EDRi considers Internet access restrictions and websites’ removal fall outside the scope of the Directive, which is essentially to define criminal offences (see Article 1 of the proposed Directive). In addition, this does not harmonise Member State laws. Should MEPs want to address these issues, EDRi considers AM6’s text should be improved in line with Article 52 of the Charter of Fundamental Rights.

EDRi’s proposal (amending the rapporteur’s suggestion in AM 6):

Recital 7*
The offences related to public provocation to commit a terrorist offence act comprise, inter alia, the glorification and justification of terrorism or the dissemination of messages or images including those related to the victims of terrorism as a way to gain publicity for the terrorists cause or seriously intimidating the population, provided that such behaviour causes a danger that terrorist acts may be committed. To strengthen actions against public provocation to commit a terrorist offence on, and also taking into account the increased use of technology, in particular the Internet, it seems appropriate for Member States may to take measures to remove or to block access to webpages publicly inciting to commit terrorist offences. Where such measures are taken, they must be provided for by law, set by transparent procedures and provide adequate safeguards, in particular to ensure legal predictability and that restrictions are limited to what is necessary and proportionate. Such measures should be subject to periodic review, to assess if the stated goal(s) of the legislation are being achieved.

*Comments: these changes show the changes regarding AM 6 of the Rapporteur’s Draft Report.

• (new) Article 14a (AM 40 of LIBE’s Draft Report)

Restricted access to certain websites can be counterproductive, as websites can be replaced easily and rapidly, making it, at best” only a “temporary disruption”.

EDRi notes and welcomes that the provision on website blocking proposed by the EP’s rapporteur under AM 40 is largely similar to that in Article 25 of Directive 2011/92/EU (Directive on combating sexual exploitation of children), which contains reasonable wording dealing with this. However, the recital misses three things:

◦ First, it should emphasise that objectives need to be clear and in a way that these measures actually necessary and proportionate.

◦ Second, restrictions must be provided for by law (Article 52 of the Charter of Fundamental Rights) and subject to periodic review and judicial control. As the UN Special Rapporteur stated in its Report of 22 February 2016, “independent judicial recourse must be available. Laws that allow executive authorities to block websites, in the absence of any initial judicial control or ex-post facto judicial recourse may not comply with this requirement”.

◦ Third, websites’ removals and access restrictions (“blocking”) are two different things. Access restrictions should only be pursued when removals at source are not achieved.

EDRi’s proposal:

Article 14a (amending the rapporteur’s text)*
1. Member States shall take the necessary measures to ensure the prompt removal of webpages publicly inciting to commit a terrorist offence, as referred to in Article 5, hosted in their territory and to endeavour to obtain the removal of such pages hosted outside of their territory.
2. Where the measures described in Article 14a(1) cannot be achieved, Member States may take measures to block access to webpages publicly inciting to commit a terrorist offence towards the Internet users within their territory. These measures must be provided for by law, set by transparent procedures and provide adequate safeguards, in particular to ensure that the restriction is limited to what is demonstrably necessary and proportionate, and that users are informed of the reason for the restriction, that is subject to initial judicial control and periodic review. Those safeguards shall also include the possibility of judicial redress.

Comments: * Parts in bold and strike-through reflect the changes introduced vis-à-vis AM 40.

Rejecting or clarifying the proposed amendments on malware and ‘malicious software’

The proposed recital 11a (AM 12) and Article 14b (AM 41) by the EP’s rapporteur on her draft report on the Directive should not be adopted for three main reasons:
These proposals would not comply with the principle of legality, as ‘malware’ is not defined.
Regarding the concept ‘malware for terrorist purposes’, this appears superfluous. This AM is seeking to solve a problem whose existence is not known and never been shown. To the extent it might exist, it is already criminal under the Council of Europe’s Cybercrime Convention and Directive 2013/40/EU on attacks to Information systems, so it is unclear what added value this prohibition would bring in addition to existing European legal framework.

EDRi also has difficulties to see the value of adding ‘malicious software’ in the Directive (AM 29 and AM 30 of LIBE’s Draft Report), since these aspects are also covered in the Directive on attacks against computer system.

Accordingly, EDRi recommends not proposing any amendments neither on manufacturing or developing malware, nor on ‘malicious software’.

VI. Human rights regular review

As the UN Special Rapporteur on Counter-terrorism and Human Rights states in its report of 22 February 2016, “it is critical that States strictly monitor the human rights compliance of measures adopted to counter violent extremism [leading to terrorism], and ensure transparency in the operation of their initiatives.”

• Article 25 (transposition) and Article 26 (reporting)

Not alone the EU institutions have adopted a piece of legislation without conducting a much-needed impact assessment, but it would take at least four years for the Commission to report to the European Parliament and Member States about its assessment on the “impact and added value of this Directive on combating terrorism”. This unacceptable period of non-review could go up to five years, if the Council’s version is adopted and prolonged, particularly bearing in mind that such reports are often delayed. In addition, the Directive remains silent about the review mechanisms by Member States. This does not comply with UN standards.

In fact, the UN Secretary-General recommended UN Member States in its Plan of Action to Prevent Violent Extremism of 24 December 2015 to “review all national legislation policies, strategies and practices aimed at preventing and countering violent extremism [leading to terrorism] to ascertain whether they are firmly grounded in respect fro human rights and the rule of law, and whether they put in place national mechanisms designed to ensure compliance.” In fact, according to the former Special rapporteur on Human Rights and Counter-terrorism, the review process should comply with the following requirements:

“a) annual governmental review of and reporting on the exercise of powers under counter-terrorism laws

b) annual independent review of the overall operation of counter-terrorism laws

c) periodic parliamentary review.”

EDRi’s proposals:

Article 25 Transposition and review mechanisms by Member States
1. Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive by [12 months after adoption]. They shall forthwith communicate to the Commission the text of those provisions.
When Member States adopt those provisions, they shall contain a reference to this Directive or be accompanied by such a reference on the occasion of their official publication. Member States shall determine how such reference is to be made.
2. Member States shall communicate to the Commission the text of the main provisions of national law which they adopt in the field covered by this Directive.
3. Member States shall conduct annual independent reviews of and reporting on the exercise of powers under the laws falling within the scope of this Directive.

Article 26 Reporting
1. The Commission shall, by [24 months after the deadline for implementation of this Directive], submit a report to the European Parliament and to the Council, assessing the extent to which the Member States have taken the necessary measures to comply with this Directive.
2. The Commission shall, by [48 12 months after the deadline for implementation of this Directive], submit a report to the European Parliament and to the Council, assessing the impact and added value of this Directive on combating terrorism and its impact on fundamental rights and freedoms and the rule of law. The Commission shall take into account the information provided by Member States under Decision 2005/671/JHA and any other relevant information regarding the exercise of powers under counter-terrorism laws related to the transposition and implementation of this Directive.
3. In light of the independent reports of the European Commission, Member States shall conduct parliamentary periodic reviews.

 

ANNEX
How rules on ‘provocation of terrorism’ threaten free speech

EDRi is concerned that the Article 5 of the proposed Directive on Combating Terrorism might lead to collateral damage by harming freedom of expression. Similar rules on ‘provocation of terrorism’ and related crimes in Member States and abroad have in practice repeatedly been misapplied to cases which have little or nothing do with any commonly-held conception of ‘terrorism’.

Criminalising speech can be dangerous, with significant risks for the freedom of expression. Such measures have affected public figures such as artists and journalists who play an integral part in public debate. They have been applied to clear cases of irony and satire. Furthermore, in some cases, links to the actual threat of terrorism are highly implausible.

At the same time, law enforcement action in such cases can have a profound effect on freedom of expression. Police interference, even when it does not lead to conviction, can ‘set an example’ and create a chilling effect, pushing others to self-censor out of fear. It should also be kept in mind that attempts to censor speech often have counter-productive effects; repressing speech, especially with false positives, can do more harm to the perceived legitimacy of government institutions than to the extremist movements which they aim to counteract. Legislators must therefore proceed with caution when attempting to criminalise speech in support of terrorism.

We provide various examples such incidents in order to illustrate the risks inherent in criminalising speech, and in order to reaffirm the need for clear, limited and specific rules with adequate free speech safeguards.

France

The French government has also criminalised speech which ‘glorifies’ terrorism. This rule has led to many prosecutions, including cases criminalising expressions on social media, but also to comments made during arrests and other interactions with police.

• One of the most egregious examples is the prosecution of a sixteen-year-old posting on Facebook, who uploaded a parody of a Charlie Hebdo comic (original and parody viewable here). The teen had no prior criminal record and, according to prosecutor Yvon Ollivier did not have a ‘profile suggesting an evolution toward jihadism’. He is one of four minors prosecuted for glorification of terrorism in France. Even an eight-year-old has been interrogated.

• Another troubling example is that of the French comedian Dieudonné, known for his controversial statements. He, too, was prosecuted for a Facebook post, after he wrote ‘Je me sens Charlie Coulibaly’. For this statement, he was received a two-month suspended prison sentence.

• In numerous incidents, the statements in question were made under the influence of alcohol. In others, those prosecuted had mental health problems or learning difficulties.
United Kingdom

In the United Kingdom, the following Tweet was considered worthy of prosecution:

‘Crap! Robin Hood airport is closed. You’ve got a week and a bit to get your shit together otherwise I’m blowing the airport sky high!!’.

The conviction of Paul Chambers for sending a “menacing” public electronic message was eventually overturned on appeal, but only after two and a half years of litigation and after having being dismissed from his job as a result. UK law enforcement has also interrogated a 10-year-old and his parents for writing in a school assignment that he lived in a ‘terrorist house’.

Finally, a case involving a four-year-old child was referred to the police because s/he drew a cucumber and subsequently referred to the drawing as a “cooker bomb” instead of a “cucumber”.

While these cases were not based on a legal prohibition on the provocation of terrorism, they do illustrate how law enforcement authorities and certain institutions are prone to overreact and harm freedom of expression in the process.

Spain

Spain criminalises the ‘glorification of terrorism’. Those convicted include:
• Two puppeteers, who were convicted for a performance in which a puppet officer held up a miniature sign falsely accusing another puppet of terrorism, using a play on words that combined Al Qaeda and the Basque Terrorist Group ETA.

• A rapper convicted and condemned for two years of prison for having composed songs that allegedly glorified terrorism.

• A rapper, who was prosecuted for his posts on Twitter.

• A 21-year-old student, who posted on Twitter inciting a terror group known as ‘the Grapo’ – even though this group is considered ‘to have long lost its operative capability’ and was last active over 25 years ago.

Outside the European Union

Incidents from outside the EU further illustrate how rules arbitrarily prohibiting speech related to terrorism can lend themselves for abuse. These are a few examples:

• In Turkey, two British journalists from the popular ‘Vice’ network were detained for ‘aiding a terrorist organisation’. Turkey has also blocked entire social media websites following terror attacks, such as when they blocked Twitter and Facebook in October 2015.
• In Jordan, over a dozen journalists and activists have been prosecuted under the anti-terror law, with one activist being jailed for five months for criticising the royal family’s support of Charlie Hebdo on Facebook.

• In Egypt, three journalists from Al Jazeera were sentenced to three years in prison for ‘broadcasting false information’ and ‘aiding a terrorist organisation’ for their reporting on the Muslim Brotherhood.

• In Cameroon, a Radio France International correspondent was prosecuted for ‘complicity in terrorism and failing to denounce acts of terror’ as an alleged accomplice of the Boko Haram group.
For more information or clarification, please contact Joe McNamee (joe.mcnamee@edri.org) and Maryant Fernández (maryant.fernandez-perez@edri.org)

Tel. +32 22742570

 

 

 

MEIJERS COMMITTEE : Notes on an EU Proposal for a Directive on combating terrorism

ORIGINAL PUBLISHED HERE (16 March 2016) (emphasis in the text below are added)

The Meijers Committee would like to comment on the European Commission’s proposal for a Directive on combating terrorism,1 partly in light of the proposals made in the Council’s General Approach of 3rd of March 2016 and the European Parliament’s LIBE Committee’s draft report of 10th of March 2016.

The Meijers Committee holds that the proposal is insufficiently substantiated, that it extends the scope of criminal law too far and compromises fundamental rights. 1.

The Meijers Committee wishes to express its support for the idea of reviewing existing EU criminal law instruments in the field of counter-terrorism. A review of the 2002 Framework Decision (as revised in 2008) offers an excellent opportunity to take a critical look at its provisions in light of the ambitions of the European institutions regarding a coherent criminal policy.

In this regard, the Meijers Committee recalls that in recent years the European Commission, the Council and the Parliament have clearly expressed themselves in favour of developing EU-level criteria for the criminalization of behaviour.2 The underlying idea is to create a coherent EU criminal law system that avoids unnecessary and unclear criminal law offenses in EU instruments. 2.

Moreover, the Meijers Committee wonders how the proposed directive relates to the European institutions’ laudable initiatives on de-radicalisation, disengagement and rehabilitation of (potential) ‘foreign fighters’ and returnees – e.g. the European Commission has stated in this regard that prosecution can have adverse side-effects: ‘the threat of prosecution may discourage certain individuals from returning who would otherwise be valuable sources of intelligence or be persuaded to de-legitimise terrorist groups and actively support counter-narratives among their peers. Also, if aspiring foreign fighters are likely to be prosecuted, their relatives may be more reluctant to alert the authorities to signs of radicalisation and preparation.‘3 Moreover, prisons can become breeding grounds for further radicalisation and many EU prisons are currently overcrowded. In the view of the Meijers Committee, discussions about broadening the scope of the criminal law should be fully coordinated with these meaningful initiatives in order to achieve ‘better regulation’.

3. Unfortunately, the opportunity to develop criminal law on terrorism in line with these considerations is not taken up in the current proposal. For instance, in its Conclusions on model provisions guiding the Council’s criminal law deliberations, the Council held that ‘criminalisation of a conduct at an unwarrantably early stage‘ should be avoided – yet this aspect is particularly problematic in the current proposal. It creates a far-reaching extension of the scope of Member States’ criminal law obligations in the field of terrorism that takes these obligations even further into the preparatory phase of possible harmful conduct.

4. It is notable that the European Commission has chosen not to conduct an impact assessment of the proposed directive, ‘given the urgent need to improve the EU framework to increase security in the light of recent terrorist attacks including by incorporating international obligations and standards’. The legislative process so far also gives the general impression that legislation is being rushed through, without looking at the serious societal impacts that it could have. The Meijers Committee is of the opinion that such a rushed procedure does not do justice to the importance of a balanced legal response to terrorism, especially since the proposal concerns far-reaching powers under criminal law that can be exercised at a very early stage and that can have a serious impact on people’s lives. Legislation in the field of counterterrorism (including EU legislation4 ) is all too ofen characterized by short-term thinking and a lack of legislative scrutiny, whereas the new, far-reaching powers are then retained for a considerable time, sometimes also being used outside the counter-terrorism context. According to the Meijers Committee, the European institutions should make a joint effort to avoid falling into such traps and to engage in a profound, careful consideration of these proposals and a serious investigation of the functioning of existing instruments (not being limited to operational aspects but also looking at the effects of measures on fundamental rights and possible adverse side-effects). The fact that international obligations in this area have already been adopted does not discharge the EU legislature of the obligation to make its own critical assessment of these measures, especially since these existing international obligations have been adopted without much democratic oversight and scrutiny.

5. The Meijers Committee is of the opinion that the Commission’s proposal is only weakly substantiated. It is stated that ‘More coherent, comprehensive and aligned national criminal law provisions are necessary across the EU to be able to effectively prevent and prosecute foreign terrorist fighters-related offences and to respond in an appropriate manner to the increased cross-border practical and legal challenges.’ However, the Commission provides no sources nor does it explain why the current instruments are insufficient and ineffective; neither does it give examples of situations that cannot be tackled at the present time. The proposal mentions ‘loopholes’ and ‘enforcement gaps’, but does not specify them and does not delve into the causes. It is the view of the Meijers Committee that such far-reaching proposals require a firmer basis. The focus should be on the effective use of existing powers and ways by which Member States can collaborate, e.g. in the area of information exchange, rather than creating new rules – something that is also required by the proportionality principle (art 5 TEU).

6. All EU Member States have bound themselves to the obligation to respect fundamental rights. That is also the case in regard to the implementation of obligations to criminalize behavior. It is worrying that the text of the proposed directive makes no reference to fundamental rights whatsoever (except in the preamble), whereas the Framework Decisions do. The Meijers Committee holds that the directive itself should clearly outline the obligation to respect fundamental rights. In particular, there is a risk that implementation of the measures envisaged will in practice encroach upon the right to non-discrimination by disproportionately targeting Muslims. The offenses may be neutrally formulated, but considering the reasons and objectives outlined in the explanatory memorandum, the instrument seems to be particularly geared towards jihadism. In the proposal, only recital 20 states rather weakly that implementation ‘should exclude any form of arbitrariness or discrimination.‘ The Meijers Committee proposes that the text of the directive itself provide for clear and strong guarantees against discrimination.

6a. The Council’s proposal to refer to media freedom in Article 21bis is an improvement of the Commission’s proposal. The Meijers Committee proposes to add a reference in the text to freedom of expression in general as well as other fundamental rights that are at stake, including freedom of religion, non-discrimination and freedom of movement, and to specify requirements for the restriction of these rights in the context of specific offenses. This also means that the elements of the separate offenses included should be restricted in such a way as to ensure that implementation does not risk encroaching on these fundamental rights (as specified below).

7. The broad definition of terrorism is unaltered in the proposal. Amongst other things, attacks against the military and military infrastructure of dictatorial regimes are included in the definition. In its outcome document on the 2002 Framework Decision, the Council stated that the instrument ‘covers acts which are considered by all Member States of the European Union as serious infringements of their criminal laws committed by individuals whose objectives constitute a threat to their democratic societies respecting the rule of law and the civilisation upon which these societies are founded. It has to be understood in this sense and cannot be construed so as to argue that the conduct of those who have acted in the interest of preserving or restoring these democratic values, as was notably the case in some Member States during the Second World War, could now be considered as “terrorist” acts. Nor can it be construed so as to incriminate on terrorist grounds persons exercising their fundamental right to manifest their opinions, even if in the course of the exercise of such right they commit offences.’5 The Meijers Committee holds that this fundamental dilemma deserves renewed consideration by the European legislature and that the outcome of such considerations should be clearly laid down in the text of the directive.

7a. This definition can lead to unjust results, especially in combination with a broad array of preparatory offenses. For instance, incitement to attacks against the military infrastructure of dictatorial regimes, and glorification of such attacks, would also be prohibited. The proposed directive contains no guarantees to prevent such criminal offences from being used arbitrarily or inconsistently, whereas the risk is certainly present. 8. As indicated above, the Council (in light of the debate about criteria for criminalization) has stated that ‘criminalisation of a conduct at an unwarrantably early stage’ should be avoided; ‘conduct which only implies an abstract danger to the protected right or interest should be criminalised only if appropriate considering the particular importance of the right or interest which is the object of protection.‘6 The definition of criminal offenses should be clearly delineated, as required by the legality principle (article 49 EU Charter of Fundamental Rights). It is the view of the Meijers Committee that this also implies that the definition should be so strict that the behavior to be criminalized is not too far removed from the potential harm (from the potential terrorist attacks themselves), and such harm should actually be intended. In this regard, several proposed offenses are problematic (as indicated below). For now, it is important to note that the proposal offers unprecedented opportunities to cumulate offenses – e.g. inciting the distribution of a message to the public with the intent to incite the commission of a terrorist offense (art. 16(2) / art. 5), and inciting the financing of training for terrorism (art. 16(2) / art. 11 / art. 8). Moreover, the proposal would oblige Member States to criminalize ‘aiding and abetting the soliciting of another person to participate in the activities of a terrorist group, including by supplying information or material resources, or by funding its activities in any way‘ (art. 16 lid 3 / art. 6 / art. 4 sub b). This enlarges the scope of the criminal law even further and can lead to absurd situations.

8a. It is important to keep in mind that, in common with substantive criminal law, criminal procedural law in the field of counter-terrorism often also extends further into the preparative phase than ‘normal’ criminal procedural law. In the Netherlands, for instance, ‘indications’ of an offense (rather than a reasonable suspicion) are sufficient to deploy certain procedural powers. Thanks to the combination of broader substantive and procedural law provisions, the government can act at an extremely early stage. Many of the offenses in the proposed directive do indeed target acts that would otherwise be considered ‘normal’ innocent behaviour, such as taking a chemistry course or buying fertilizer. Thus, because the actus reus cannot make the difference, a person’s alleged intention (mens rea) plays an even greater role, and in the field of terrorism there is a greater risk that the authorities may derive such an intention (in part) from ideologies and/or religious beliefs. In the current societal context, that means that there is a genuine risk that Muslims will be disproportionately targeted in practice.

9. With regard to Article 2(d), the Meijers Committee wonders what is meant by a ‘structured group’ that ‘does not need to have (…) a developed structure.’

10. The proposed article 15 states that for an offence referred to in Article 4 and Title III to be punishable, it shall not be necessary that a terrorist offence be actually committed, nor shall it be necessary to establish a link to a specific terrorist offence (or, regarding articles 9 to 11, to specific offences related to terrorist activities). In the explanatory memorandum this is explained as follows: ‘For instance, for the criminalisation of the recruitment to terrorism it is not necessary that the person is solicited to commit a specific terrorist offence or that the person providing training for terrorism instructs a person in the commission of a specific terrorist offence. In the same spirit, for the criminalisation of the financing of terrorism, it is sufficient that there is knowledge about the use of the funds for purposes furthering the terrorist activities in general without there being a need to be linked to for instance a specific already envisaged travel abroad.’

The Meijers Committee is of the opinion that this addition to article 15 (which is not included in the Framework Decision) stretches the relationship between behaviour and potential harmful consequences too far; no such relationship is required at all. In fact, the Meijers Committee holds that the requirement that the behaviour in question poses a real danger of possible terrorist offences is important for preparatory offences in general. If the conduct described is capable of creating harm in exceptional situations, the prohibition should be limited to those exceptional situations. With regard to article 8 (receiving training) such a requirement is referred to in the explanatory memorandum; in article 5, a requirement to this end is laid down in the text itself. The Meijers Committee recommends, having regard to article 8 and the other offences in the directive, that the relationship between behaviour and possible harm should be more clearly expressed in the text.

11. Although it is positive that article 5 contains a ‘danger’ criterion, the Meijers Committee considers that an even stricter criterion is needed to limit the scope of the provocation offence, since the right to freedom of expression is so clearly at stake here. In its current form, the offence potentially criminalizes sympathizers with the ideology underlying terrorist groups, but who do not necessarily accept the violence as such; it could thus make non-violent resistance suspect and thereby be counterproductive. Moreover, because the definition of terrorism in the proposed directive is so broad, discussions of possible justifications for violent resistance in exceptional circumstances are also criminalised: in a free society, such debates should not be settled by criminal law. With all of the opportunities offered for the cumulation of offences, the risk of creating a ‘chilling effect’ on freedom of speech is even greater, e.g. criminalizing the financing of the propagation of such ideologies. The offense should be further restricted, e.g. by requiring a ‘serious and actual danger’ and/or as the LIBE draf report states a ‘clear and substantial danger’, or by reviving the Parliament’s proposal with regard to the 2008 revision of the Framework Decision to limit the article to ‘conduct that clearly and intentionally advocates the commission of a terrorist offence where such conduct manifestly causes a danger that such offences are committed’.

11a. The proposal is also problematic in that it explicitly criminalises indirect provocation. Especially in combination with the preamble, which states that ‘The offenses related to public provocation to commit a terrorist offence act comprise, inter alia, the glorification and justification of terrorism or the dissemination of messages or images including those related to the victims of terrorism as a way to gain publicity for the terrorists cause or seriously intimidating the population’, this recital leads to a disproportional infringement of freedom of expression including the freedom of the press and should be renounced. The explanatory memorandum states that ‘Such messages and images may also include those denigrating victims of terrorism, including their families’, which makes the offence even less clear: some Member States may interpret this as meaning that, even if there is no real danger of future offenses, offense to victims and their families is sufficient reason to criminalize expressions.

The text proposed in the Council, which specifically mentions glorification of terrorism in the text of the directive, is even more problematic – as is the LIBE draf report’s addition of the words ‘or glorify’: the Meijers Committee strongly believes that these proposals should be renounced. Instead, the directive should explicitly exclude glorification or justification of terrorism from its reach, because it is particularly with these types of prohibitions that the risk of encroaching upon freedom of expression is very high. Moreover, the proposal to change the text to ‘advocates the commission of terrorist offences thereby causing a danger‘ is a significant step back in terms of freedom of expression: it could be interpreted so as to mean that advocating the commission of terrorist offenses (whether directly or indirectly, including by glorification) automatically causes a danger. This would make the ‘danger’ requirement ineffective and superfluous. The safeguard that the Council proposes in recital 20A (‘Nothing in this Directive should be interpreted as being intended to reduce or restrict the dissemination of information for scientific, academic or reporting purposes. The expression of radical, polemic or controversial views in the public debate on sensitive political questions, falls outside the scope of this Directive and, in particular, of the definition of public provocation to commit terrorist offences’) should, in the view of the Meijers Committee, be included in the text of the directive itself.

11b. The Meijers Committee further believes that the Council’s addition to recital 7 – ‘it seems appropriate for Member States to take measures to remove or to block access to webpages publicly inciting to commit terrorist offences. Where such measures are taken, they must be set by transparent procedures and provide adequate safeguards, in particular to ensure that restrictions are limited to what is necessary and proportionate’ – falls outside the scope of this instrument and creates a particularly pressing risk for freedom of expression and freedom of the internet, especially since the proposal does not oblige involvement of the judiciary in such blocking measures.

12. The proposed articles 7 and 8 refer to providing and receiving training ‘for the purpose of committing of or contributing to [in article 8: the commission of]’ one of the terrorist offences mentioned. The Meijers Committee recommends specifying what is meant by ‘contributing to [the commission of]’ these offences and why this addition is necessary. Moreover, it is advised that the text of article 8 makes it clear that active participation in the training is required and that ‘the mere fact of visiting websites containing information or receiving communications, which could be used for training for terrorism, is not enough’ as the explanatory memorandum states.

13. The need for and proportionality of the proposed new criminal offences of travelling abroad for terrorism and organising or otherwise facilitating such travel (articles 9 and 10) are not sufficiently demonstrated, also in light of existing criminal offences in the Member States and other legal options, such as taking passports.

Moreover, the Meijers Committee considers that these articles are too loosely defined for such far-reaching restrictions of the right to liberty of movement, which entails the right to leave any country including one’s own (Article 2, Fourth Protocol to the ECHR). Article 9 refers to travelling abroad ‘for the purpose of the commission of or contribution to a terrorist offence referred to in Article 3 (…)’. The wording ‘or contribution to’ makes the offence excessively broad and unclear: there is no explanation of what this could entail. Moreover, the Meijers Committee considers the criminalisation of travelling abroad to participate in the activities of a terrorist group particularly far-reaching, as the offence of article 4 in itself is already quite broad. Article 10 includes the term ‘otherwise facilitating’; according to the Commission this ‘is used to cover any other conduct than those falling under “organisation” which assists the traveller in reaching his or her destination. As an example, the act of assisting the traveller in unlawfully crossing a border could be mentioned.’ This makes the provision very broad and unclear. Although the organisation or facilitation needs to be committed intentionally and ‘knowing that the assistance thus rendered is for that purpose’, apparently there is no requirement that the organiser or facilitator has the purpose of contributing to the commission of terrorist offences.

All these elements together lead to a greatly expanded scope of criminal liability for an otherwise ordinary activity – travelling abroad. Almost everything will thus come down to the alleged purposes of the traveller, an assessment that is lef to domestic law. Some Member States will be able to interpret this very broadly, e.g. judging that travelling to a certain ‘suspect’ region will in principle be sufficient to prove a terrorist purpose.

Thus, there is a risk of reversing the burden of proof, which will prove especially problematic for humanitarian organisations and journalists. Should the offences be adopted, the Meijers Committee holds that it is at least absolutely necessary that they are limited to travelling outside the EU. Moreover, The Meijers Committee concurs with the LIBE committee’s draf report that ‘the act of travelling should be criminalised under very specific conditions and only when the intention of doing so for a terrorist purpose is proven by inferring, as much as possible, from objective, factual circumstances’; such specific guarantees should be included in the text itself.

14. The Meijers Committee is not convinced of the need to establish jurisdiction for non-EU nationals who provide training for terrorism to nationals or residents abroad, as proposed in Article 21 (1)(d). There should be particularly compelling reasons for establishing such a far reaching ground for jurisdiction, especially where offences in the preparatory stage are concerned. The Commission, in the view of the Meijers Committee, has failed to demonstrate such compelling reasons. It is also highly questionable whether this form of jurisdiction will actually be used in practice.

15. The Council proposes to include a specific provision on investigative tools. According to the Meijers Committee, this falls outside the scope of the directive. The same is true of the LIBE draf report’s proposal on ‘asset freezing’ in Article 11a. That said, the breadth of criminal procedural powers in the field of terrorism is certainly something that the European legislature should be concerned about, but not just from a law enforcement perspective; rather, the balance between effective investigations and fundamental rights requires more careful consideration. This is particularly pressing with regard to offences, such as those contained in the proposed directive, where evidence gathering may be difficult because they are committed in third countries with worrying human rights records. Moreover, the relationship between criminal (substantive and procedural) counter-terrorism law and other fields of counter-terrorism law should be borne in mind when drafing this directive. For example, some states have adopted or proposed far-reaching administrative law measures, such as removing a person’s nationality after that person has been convicted of terrorist offences (or even in the absence of a criminal conviction). According to the Meijers Committee, the European legislature should consider how the current proposal relates to such initiatives

 

NOTES

1 2 December 2015, COM(2015) 625 final.
2 Council Conclusions on model provisions, guiding the Council’s criminal law deliberations, 2979th JHA Council meeting, 30 Nnovember 2009; European Parliament, Resolution ‘An EU approach to criminal law’, 22 May 2012 (2010/2310(INI)); European Commission Communication ‘Towards an EU Criminal Policy: Ensuring the effective implementation of EU policies through criminal law’, 20 September 2011, (COM(2011)0573).
3 European Commission, Background document to the High-Level Ministerial Conference ‘Criminal justice response to radicalisation’, 19 October 2015, Brussels, p. 2.
4 SECILE Consortium, led by Professor Fiona de Londras, Securing Europe through Counter-Terrorism: Impact, Legitimacy and Effectiveness. Final report summary, 2015, http://cordis.europa.eu/result/rcn/164039_en.html.
5 Outcome of the proceedings, 7 December 2001, 14845/1/01 Rev. 1, Draft Council Statement.
6 Council Conclusions on model provisions, guiding the Council’s criminal law deliberations, 2979th JHA Council meeting, 30 November 2009, par. 5.

(*) About
The Meijers Committee is an independent group of legal scholars, judges and lawyers that advises on European and International Migration, Refugee, Criminal, Privacy, Antidiscrimination and Institutional Law. The Committee aims to promote the protection of fundamental rights, access to judicial remedies and democratic decision-making in EU legislation. The Meijers Committee is funded by the Dutch Bar Association (NOvA), Foundation for Democracy and Media (Stichting Democratie en Media) the Dutch Refugee Council (VWN), Foundation for Migration Law Netherlands (Stichting Migratierecht Nederland), the Dutch Section of the International Commission of Jurists (NJCM), Art. 1 Anti-Discrimination Office, and the Dutch Foundation for Refugee Students UAF. Contact info: post@commissie-meijers.nl +31(0)20 362 0505 Please visit http://www.commissie-meijers.nl for more information.

 

Detention of asylum-seekers: the first CJEU judgment

Original published on EU LAW ANALYSIS (Wednesday, 9 March 2016)

by Steve Peers

One of the most controversial aspects of immigration and asylum law is the detention of migrants: people who have broken no criminal law (other than, possibly a criminal law about migration control) but who are detained during their asylum application, or pending their removal from the country. The EU has had rules on detention of irregular migrants for some time, in the Returns Directive (on the CJEU’s interpretation of those rules, see my journal article here).  But it has only recently had rules on the detention of asylum-seekers, in the second-phase Directive on the reception conditions for asylum-seekers. (The UK and Ireland have opted out of both Directives).

Recently, in the JN judgment, the CJEU ruled for the first time on the interpretation of these new rules. In fact, this was the Court’s very first judgment on any aspect of the second-phase legislation, although it soon gave another judgment (on the rights of people with subsidiary protection, discussed here), and other cases are pending. The Court’s ruling addresses a number of key questions of interpretation of the detention rules, but left a number of issues open.

In general, the Court has limited the prospect of detaining asylum-seekers on grounds of ‘national security or public order’, and its ruling implicitly somewhat constrains the possibilities of detaining asylum-seekers on other grounds too. But in parallel to that, the judgment strengthens the rules in the Returns Directive on the detention and expulsion of irregular migrants. And the Court’s ruling is surprisingly open to the application of human rights ‘soft law’ as a means of interpreting EU law. Overall, while not mentioning the current ‘refugee crisis’, the judgment is an implied rebuff to those who would like to resort to extensive detention of asylum-seekers as a means to address that crisis.

Background

The first phase reception conditions Directive (adopted in 2003, applicable from 2005) said little about detention of asylum-seekers. While the subsequent Returns Directive did regulate detention of irregular migrants, the CJEU made clear inKadzoev and Arslan that those rules did not apply to asylum-seekers, because EU asylum legislation gives asylum-seekers the right to stay on the territory until a decision is made at first instance on their application, whereas the Returns Directive says that irregular migrants should be booted out as soon as possible. InArslan, the Court clarified the relationship between the two sets of rules: an irregular migrant detained under the Returns Directive could not simply escape from detention by applying for asylum. Essentially the JN judgment returns to the same issue, and asks the Court to reconsider its position in light of the more detailed rules on detaining asylum-seekers which now apply.

So what are those rules? In the second-phase reception conditions Directive, the previous ban on detaining people solely because they have applied for asylum is retained. The Directive then provides generally for detention of asylum-seekers if ‘necessary’ after ‘an individual assessment of each case…if other less coercive alternative measures cannot be applied effectively’. Detention is permitted ‘only’ on six grounds: (a) ‘in order to determine or verify [an asylum-seeker’s] identity or nationality’; (b) to ‘determine the elements on which’ the application is based ‘which could not be obtained in the absence of detention, in particular where there is a risk of absconding’; (c) in order to decide on entry onto the territory; (d) when the asylum-seeker is detained pursuant to a planned expulsion under the Returns Directive, and there are objective grounds to show that he or she applied for asylum only to ‘delay or frustrate’ expulsion, despite having had an opportunity to access the asylum procedure; (e) ‘when protection of national security or public order so requires’; or (f) in accordance with the Dublin III Regulation on allocation of asylum-seekers between Member States, which provides for detention if there is a ‘significant risk of absconding’ before a Dublin transfer is carried out.

The grounds for detention must be ‘laid down in national law’, which must also lay down rules on alternatives to detention. There are detailed rules on procedural guarantees as regards detention, and on the conditions of detention. Those procedural guarantees and detention condition rules also apply to Dublin cases, and the Dublin Regulation moreover sets out precise rules on the length of detention. The CJEU has been asked to interpret the ground for detention in the Dublin III Regulation, in the pending Al Chodor case.

The judgment

Mr JN had made three prior applications for asylum. They were all unsuccessful, but nevertheless he was not removed from Dutch territory. Over a period of 20 years, he accrued more than twenty convictions for criminal offences. The case did not concern detention for those criminal convictions, as such detention falls outside the scope of the Directive (unless, arguably, the criminal conviction is related to immigration offences: more on that point below). Rather it concerned detention on grounds of ‘public order and national security’, which the Dutch government imposed in light of his criminal offences – but not as a penalty for them.

Obviously such detention is compatible in principle with the Directive, which expressly provides for detention on such grounds. So Mr. JN instead argued that the relevant provision in the Directive itself was invalid. It should be noted thatanother pending case asks the CJEU whether two other grounds for detention in the Directive are invalid: verification of identity or nationality, and determining the elements on which the application is based.

The Court began its analysis by reiterating its prior case law that the European Convention on Human Rights (ECHR), which includes rules on detention, does not bind the EU as such. Instead, it assessed the validity of the clause in the Directive in light of the EU Charter of Fundamental Rights – although this did entail some assessment of the validity of that clause in light of the ECHR as referred to in the Charter, as discussed below.

According to the Court, detention undoubtedly affects the liberty of the individual, as guaranteed by Article 6 of the Charter. So the question is whether this particular ground for detention was justified, in light of the general test for limiting Charter rights set out in Article 52(1) of the Charter. This test requires that limitations on Charter rights must: (a) be prescribed by law; (b) not infringe the essence of the right; (c) be aimed at protecting an objective of general interest, or the rights and freedoms of others; and (d) be proportionate – meaning that they are appropriate and necessary to achieve their objective.

Applying these tests, the Court first found that the possibility of detention on grounds of public policy or national security was prescribed by law, since it was set out in the Directive. It did not infringe the essence of the right to liberty, since it was based on individual conduct and applied in ‘exceptional circumstances’, circumscribed by the various general limits and guarantees relating to detention set out in the Directive. Detention on grounds of public order and national security meets a public interest, and moreover protects the right to ‘security’ of others.

The Court’s most detailed reasoning therefore concerned proportionality. Detention on public order or national security grounds was inherently ‘appropriate’ to the objective of ensuring public protection. It was ‘necessary’ for a number of reasons, which the Court elaborated in some detail. All restrictions on liberty have to be ‘strictly necessary’ and this particular ground to detain was ‘strictly circumscribed’ by the overall legal framework: detention on such grounds had to be ‘require[d]’; detention must be provided for in national law; the general limits and safeguards on detention in the Directive apply; the exception is limited by international human rights ‘soft law’; and the concepts of ‘public policy’ and ‘national security’ had to be narrowly interpreted.

The Court explored the latter two points further. As regards international human rights ‘soft law’, it noted that in the Commission’s original proposal for the Directive, it referred to a Council of Europe Recommendation on detention of asylum-seekers, as well as UNHCR guidelines on detention. It then applied some of the text of the latter guidelines: in particular detention of asylum-seekers must occur ‘only exceptionally’ in an ‘individual case’ as a ‘last resort’, where ‘necessary, reasonable and proportionate to a legitimate purpose’.

As for the detention grounds of ‘public policy’ and ‘national security’, the Court applied last year’s judgments in T and Zh and O (discussed here and here), in which it had ruled that ‘public policy’ exceptions in other EU immigration and asylum legislation had to be narrowly interpreted, consistently with the narrow definition of that exception in EU free movement law. In JN it said the same for the national security exception as regards detaining asylum-seekers, and furthermore as regards the grounds for entry bans longer than five years, as set out in the Returns Directive. So the exceptions apply only where there is a genuine criminal or security threat, not where there the authorities simply deem it expedient to detain people.

Next, the Court applied its interpretation of the Directive to the facts of this case. He was detained due to his prior offences and pending expulsion order, which was attached to a ten-year entry ban. Since entry bans for longer than five years can only be issued on grounds of a ‘serious threat to public policy…public security or national security’ it followed that detention could be ordered in the same circumstances – as long as proportionality was ‘strictly observed’ and those reasons are still valid.

The Court also made clear that the pending expulsion order could not lapse during consideration of JN’s asylum application. The national case law which provided for it to lapse had to be disapplied by the national court, in order to ensure the effectiveness of the Returns Directive (ie the expulsion of irregular migrants). So Mr JN was a sort of ‘Schrodinger’s migrant’: allowed to stay on the territory while his asylum application was considered (and so subject to the detention rules in the reception conditions Directive); but also simultaneously subject to an expulsion order under the Returns Directive, which was only temporarily suspended – and which continued to justify (in part) his detention under the formally distinct set of asylum rules.

Finally, the Court concluded by looking at the position under the ECHR, in the context of the Charter. The former was relevant to the latter because Article 52(3) of the Charter says that the ‘meaning and scope’ of Charter rights which ‘correspond’ to ECHR rights is the same as those ECHR rights.  However, the Court easily dismissed the ECHR argument by pointing out that in the recent judgment of the European Court of Human Rights (ECtHR) in Nabil v Hungary, an asylum seeker could still be detained pursuant to Article 5(1)(f) of the Convention (which allows detention ‘where action is being taken with a view to deportation’) because rejection of an asylum application would entail enforcement of an expulsion order. But the Court did refer to the safeguards in other ECtHR case law: there can be ‘no element of bad faith or deception by the authorities’, and detention must be proportionate.

Comments

As the CJEU’s first proper judgment on detention of asylum-seekers, the JN ruling may become seminal. That’s not because of the facts of this particular case: with three failed asylum applications and over twenty criminal convictions to his name, the grounds to detain Mr JN are stronger than they are for many other asylum-seekers. But much of what the Court said in its judgment has potentially wider impact.

I will analyse that possible impact from five angles: (a) the ‘public policy and national security’ ground of detention; (b) the application of other grounds for detention; (c) the Court’s use of ‘soft’ human rights law; (d) the interpretation of the Returns Directive; and (e) the role of law in the development of the EU’s asylum regime more generally.

The ‘public policy and national security’ ground of detention

The Court made clear that the public policy and national security grounds for detention must be narrowly interpreted, and interpreted consistently with EU free movement law. Mr JN’s detention was justified because of his prior criminal offences in conjunction with the underlying expulsion order. But are these tests cumulative or alternative? And are they exhaustive?

The Court does not address these questions. However, the requirement to interpret these grounds consistently with EU free movement law suggests that the two tests are exhaustive. Arguably criminal offences alone could justify detention, in light of the nature of this ground for detention. But the principle of proportionality must mean that detention would be harder to justify in the absence of an expulsion decision, and that the seriousness and number of the offences are also highly relevant. (Remember that detention under the Directive is distinct from detention ordered as a result of a criminal conviction, or pre-trial detention linked to the criminal proceedings).

Conversely, it seems unlikely that an expulsion decision alone could justify detention on this ground. If that were permitted, it would be too easy for Member States to justify the detention of almost all asylum-seekers, by issuing irregular migrants with expulsion orders as soon as they are apprehended, before they can apply for asylum. This would undercut the Court’s emphasis on the exceptional nature of detention of asylum-seekers. Furthermore, the Directive has a lex specialis on detaining asylum-seekers who had been subject to expulsion orders: the ‘last-minute application’ clause. If the drafters of the Directive had intended a broader possibility to detain asylum-seekers merely because they were subject to expulsion orders, they would have drafted that clause differently.

Other grounds for detention

While most of the JN judgment focusses on the particular ‘public policy and national security’ ground for detention of asylum-seekers, some of the Court’s reasoning casts light by analogy on the validity and interpretation of the other five detention grounds.

First of all, each of the other five grounds for detention of asylum-seekers restricts their liberty, so must be also justified under Article 52(1) of the Charter. Applying the Court’s analysis in the JN judgment by analogy, each of those other five grounds is ‘prescribed by law’, at least according to the CJEU’s approach to that concept. However, the other grounds are not so closely linked to individual conduct of the person concerned, although arguably the ‘last-minute application’ and Dublin III ‘serious risk of absconding’ ground have a closer link than the others (the Dublin III Regulation refers to ‘reasons in an individual case’ to suggest that an asylum-seeker may abscond). Nor is it clear how the ‘exceptional circumstances’ concept applies to the other grounds, although they are all also subject to the general limits and guarantees relating to detention set out in the Directive.

The public interest arguments for the other grounds of detention are less obvious, although the Court could probably find them: the efficiency of the asylum system, and (as regards the entry control and ‘last-minute application’ grounds) immigration control (see the Schwarz judgment by analogy). But the restrictions on liberty are not so obviously appropriate as is the case for public policy and national security (except as regards the ‘last-minute application’ clause, provided that there was an effective opportunity to apply for asylum).

As for necessity, the Court applied the ‘strictly necessary’ rule to all deprivations of liberty. Furthermore, the other grounds for detention are also subject to the general limits and safeguards set in the Directive, and the rule that detention must be provided for in national law. However, not all of the specific features which the Court discussed in JN apply to the other grounds for detention: there is no obligation that detention on the other grounds be ‘required’, and the interpretation of those other grounds under EU law and international human rights soft law will necessarily be different. That brings us neatly to the Court’s innovative use of that soft law.

The Court’s use of ‘soft’ human rights law

First of all, the Court’s use of international human rights ‘soft law’ is remarkable in itself. It’s only taken account of such rules once before in the immigration and asylum context: the El Dridl case, where the preamble to the Returns Directive referred to a Council of Europe Recommendation on detention of irregular migrants. But in JN, the explanatory memorandum to the original proposal is enough to trigger incorporation of the soft law into the Court’s interpretation of the Directive.

It’s not clear if this may have broader implications beyond the reception conditions Directive. I’ve checked the original proposals for the other second-phase asylum laws, and none of them refer to international soft law as far as I can see. (But note that the preambles to the legislation do refer to the Geneva Convention on refugee status, as well as the UN Convention on the Rights of the Child).

However, it does have a number of implications for the interpretation of the reception conditions Directive. I have read through both ‘soft law’ measures invoked by the Court, and noted some key points where they could be useful in interpreting the Directive. For the sake of readability, I have put some of the detail in an Annex to this blog post. But here are the highlights.

The soft law gives more precise explanations for detention on grounds of determining nationality or identity, or to determine elements of the claim. A crucial point here is a detailed interpretation of Article 31 of the Geneva Convention, which states that refugees ‘coming directly’ from persecution cannot be penalised for irregular entry if they breach immigration law for ‘good cause’ and contact the host State’s authorities ‘without delay’. This is a big issue in practice.

Two years ago, in its judgment in Qurbani (discussed here), the CJEU said it would not interpret Article 31 of the Convention, unless EU legislation referred to it. Well, the preamble to the second-phase reception conditions Directive does refer to it, in the context of detention (so does the Dublin III Regulation, and EU anti-smuggling law). Since criminal penalties for irregular entry are affected by the Returns Directive (according to the CJEU’s case law), it must follow that they are also affected by EU asylum law, a fortiori because the EU legislators expressly refer to Article 31 of the Convention.

What does this mean on the ground? First of all, the UNHCR guidelines say that asylum-seekers are covered by Article 31, even if their refugee status has not yet been established. Next, the 1999 version of the guidelines say that ‘coming directly’ also covers cases where asylum-seekers travelled through other countries. The ‘good cause’ rule must be interpreted in context, and there is no strict time limit for contacting the authorities. Between them, these interpretations of Article 31 should limit asylum-seekers’ criminal convictions for irregular entry considerably. In any event, EU legislation and case law says that asylum-seekers are entitled to stay on the territory and are outside the scope of the Returns Directive since they cannot be considered irregular; subjecting them to a criminal prosecution for irregular entry would directly contradict this.

Furthermore, the soft law is relevant not only to the grounds for detention, but also alternatives to detention, judicial review of and the conditions for detention. On that latter point, it mentions the practice of religion in detention, as well as a broader measure of contact with the outside world. Asylum-seekers should have a complaints procedure concerning detention conditions. There are more details on detention of vulnerable persons.

On that point, I can never pass on an opportunity to comment on the quite obnoxious derogations permitted in the Directive, allowing Member States to waive the requirements for separate accommodation for detained families and detaining women separately from unrelated men, in ‘duly justified’ cases at the border. In light of the Charter rights to privacy, the rights of the child and the EU’s imminent signature of the Council of Europe Convention on violence against women (on which, see here), these derogations are surely either invalid or can only apply in cases of force majeure.

Interpretation of the Returns Directive

The Returns Directive says nothing explicitly on the lapse of return decisions. This judgment is the first time the CJEU has ruled on the issue. While the Court only addresses the specific point of return decisions lapsing due to an asylum application, it might be argued by analogy that the lapse of return decisions in other circumstances is also incompatible with the Returns Directive. Although Member States are allowed to set higher standards than the Returns Directive, that only applies if those standards are still ‘compatible’ with the Directive. As we saw in theZaizoune judgment (discussed here), such higher standards cannot amount to a waiver of the obligation to return people. It’s implicit in the JN ruling that equally it’s not compatible with the Directive for return decisions to lapse as soon as an asylum application is made.

The role of law in the development of the EU’s asylum regime

The JN ruling came as the EU took further measures to reduce the numbers coming to or staying on the territory – most notably by reaching a controversial arrangement with Turkey (on which, see here). Overall, the judgment sends a clear signal that the CJEU is going to assert its legal authority to ensure that measures taken to deal with the refugee and migration crisis are compatible with human rights, in particular as regards asylum-seekers – although conversely the Court is keen to strengthen the obligation to expel those who have not established any need to stay.

More broadly, the EU’s refugee policies are obviously in a state of deep crisis. Rather than leave the issue entirely to populists at the EU or national level, it would be better for the EU ask a panel of respected international experts to recommend (quickly) how the EU, in the wider international context, should deal with the crisis. I would nominate (say) Mary Robinson, David Miliband, Madeline Albright and Carl Bildt for this task. In any event, we cannot go on as we are: the EU needs an asylum policy that is simultaneously fair, humane, realistic and coherent; but it is falling far short of that at the moment.

Barnard & Peers: chapter 26

JHA4: chapter I:5

Photo credit: UNHCR, B. Szandelszky

Annex

Council of Europe Committee of Ministers Recommendation

Point 1 – the definition of ‘detention’ is taken implicitly from ECHR case law, and is more precise than in the Directive

Point 3 – a general provision says ‘the aim [of detention] is not to penalise asylum-seekers’. The ground of detention to determine nationality or identity is explained in more detail than under the Directive. It applies ‘in particular when asylum seekers have destroyed their travel or identity documents or used fraudulent documents in order to mislead the authorities of the host state’. The ground of detention to determine elements of the asylum claim is less detailed than under the Directive, which contains the following additional words: ‘in particular where there is a risk of absconding of the applicant’.

There is no parallel to two of the grounds for detention under the Directive: under the Dublin process (ie where there is a ‘significant risk of absconding’ during that process); and where there is an asylum application purely to forestall an expulsion decision, if the asylum-seeker had previously had an opportunity to apply for asylum.

Point 4 – says there must be a ‘careful’ examination of the grounds for detention in individual cases, and detention shall be ‘non-arbitrary’.

Point 5 – discusses grounds for judicial review, which are not expressly mentioned in the Directive. If a maximum detention duration has not been provided for by law, the duration of the detention should form part of the review by the above-mentioned court (see the Mahdi judgment on the Returns Directive by analogy).

Point 6 – ‘Alternative and non-custodial measures…should be considered beforeresorting to measures of detention’. The Directive does not state this expressly.

Point 7 – Measures of detention should not constitute an obstacle to asylum seekers being able to submit and pursue their application for asylum.

Point 8 – Asylum applications from persons in detention should be prioritized for the purposes of processing. This is especially the case where a person is held in detention because of reasons resulting from the law pertaining to foreigners.

Conditions of detention

Point 15 – Detained asylum seekers should be allowed to practice their religion and to observe any special diet in accordance with their religion.

  1. Asylum seekers should be allowed to contact and, wherever possible, receive visits from relatives, friends, social and religious counsellors, non-governmental organisations active in the field of human rights or in the protection of refugees or asylum seekers, and to establish communication with the outside world. Note that this is wider than Article 10(4) of the Directive.
  2. Asylum seekers should be guaranteed access to a complaints mechanism concerning the conditions of detention. This issue is not mentioned in the Directive.
  3. If minors are detained, they must not be held under prison-like conditions…If [placing outside detention] proves impossible, special arrangements must be made.

UNHCR guidelines

Guideline 2 – Interprets Article 31 of Geneva Convention – also referred to in preamble to the Directive. Refers also to UNHCR Executive Committee conclusions for more on when detention is ‘necessary’ under Article 31 of the Convention

Article 31 applies also to asylum-seekers, not just recognised refugees; 1999 version of conclusions: (point 4) ‘coming directly’ clause also covers cases where the asylum seeker transited through other States on way to State where they are now present. No strict time limit to the phrase ‘without delay’. ‘Good cause’ – must look at all the circumstances

Guideline 3 – must consider alternatives to detention first – same as in CoE recommendation.

Grounds for detention (i) to prevent absconding (matches Dublin III Regulation to some extent); (ii) manifestly unfounded or abusive claims (no match with Directive); (iii) to verify identity or security; no reference to nationality (so not as complete a correspondence as CJEU suggests); (iv) elements of the claim – explained in detail ‘within the context of a preliminary interview’ (with further clarification); (v) public health (no match in the Directive); (vi) national security; or (vii) a ‘last minute’ application to frustrate expulsion (no match in the Directive)

Point (d) of Article 8(3) of the Directive doesn’t appear here; ‘procedure to enter the territory’ does not apply.

General rule – cannot use detention as a deterrent, or to dissuade continuing with claims; not punitive or disciplinary, or for breach of rules at reception centres or camps.

Guideline 4.3 – more detailed rules on alternatives to detention than in Article 8(4) of the Directive.

Guideline 5 – detention cannot be discriminatory

Guideline 6 – there must be time limits on detention

Guideline 7(iv) – right of asylum-seeker or lawyer to attend hearing re review of detention; 7(v) – authorities have burden of proof re detention; 7(vi) not an obstacle to pursue the asylum application (as in CoE recommendation).

Guideline 8 – like CoE Recommendation: religious diet, wider access to outside world; more details on basic necessities than in Directive (ie ‘dignity’); no prison uniforms or shackling; also refers to complaints procedure (like CoE Recommendation) but goes into further detail than that Recommendation

Guideline 9 – more details on vulnerable persons than in Art 11(1) of the Directive

Counter-terrorism: The EU and its Member States must respect and protect human rights and the rule of law

JOINT CIVIL SOCIETY STATEMENT (*) Brussels, 1st March 2016.

The 2015 terrorist attacks in Paris and elsewhere – and the assertion by States that there is an elevated terrorist threat in the European Union (EU) – have led to a new set of counter-terrorism measures at both EU and national levels. These terrorist attacks are heinous criminal acts which undermine human rights. International human rights law itself requires that states must take appropriate measures to prevent and respond to acts of terrorism, in order to ensure the security and safety of the people in their territories. The undersigned organisations recall that counter-terrorism measures must always comply with the rule of law and human rights obligations under European Union and international law. Effective counter-terrorism measures and the protection of human rights are not conflicting but are aimed at overlapping, complementary and mutually reinforcing goals. In practice, widespread violations of human rights while countering terrorism have proven to be counterproductive.

The undersigned organisations acknowledge that states are facing substantial threats to the security of their populations that require effective action. However, the extent of restrictions on human rights that result or could result from adopted or contemplated security measures is significant. Transparency, information and meaningful participation of civil society are crucial to avoid excessive or other arbitrary restrictions on human rights as a result of counter-terrorism laws and policies.

An overarching concern is the fast-track procedures used by EU institutions and EU Member States authorities to adopt counter-terrorism measures, for instance in the Draft Directive on Combating Terrorism. This reduces the space for meaningful civil society participation and transparency, foreseen in EU Stakeholder Consultation Guidelines, and thus hinders accountability, which is contrary to Article 11 of the Treaty of the European Union. Adoption of emergency measures also does not allow for proper or, indeed, any impact assessments, as foreseen by the EU Better Regulation Guidelines and Better Regulation tool 24.

The shrinking space for civil society is a concerning reality not only outside the EU, but also within its own borders.

The undersigned organisations urge the EU and Member States to respect, protect and fulfil human rights and the rule of law:

The right to be free from torture and cruel, inhuman or degrading treatment or punishment.

 All States must comply with the absolute prohibition of torture and ill-treatment and take effective measures to prevent any acts of torture or cruel, inhuman or degrading treatment or punishment. They must ensure that allegations of such treatment are effectively and independently investigated and the perpetrators brought to justice, and that victims have access to effective remedies and reparations, including rehabilitation. States must ensure that statements and other information obtained through torture and ill-treatment, including information obtained abroad, are not invoked as evidence in any proceedings, except against a person accused of torture.1 This obligation includes a responsibility not to use or share torture-tainted information obtained in other States and should also cover EU agencies with cooperation agreements with third countries, such as Europol.

As a guarantee against ill-treatment within EU Member States, international fair trial rights should be respected, suspects arrested for terrorism offences should be notified of their rights effectively in accordance with international human rights law and Directive 2012/13/EU and access to a lawyer should be ensured in accordance with Directive 2013/48/EU. The important right of an arrested person to be brought promptly before a judicial authority upon arrest, as set out Article 5 European Convention on Human Rights (ECHR) and Article 9 International Covenant on Civil and Political Rights (ICCPR), that amongst other things is a safeguard against prohibited ill-treatment, should also be clearly enshrined in EU law.

No return to face human rights violations.

All removals and expulsions of persons must respect the principle of non-refoulement, meaning that nobody must be returned to a country where there are substantial grounds for believing that he/she would be in danger of being subjected to torture, ill-treatment or other serious violations of human rights. 2 This principle must hold true for people convicted of terrorism offences, or who are suspected of terrorism-related activity. Diplomatic assurances, which are typically not legally enforceable and are inherently unreliable, should not be considered as sufficient protection against torture, ill-treatment, unfair trial or arbitrary detention following removal.

The right to liberty and security of the person.

Any person arrested or deprived of their liberty, including by administrative detention, must have prompt access to judicial review of detention, and regular judicial review thereafter.

All detainees at all times have the right to challenge the lawfulness of their detention through judicial proceedings. They have a right to prompt and regular access to a lawyer, and the right to inform their family of their detention. Deprivation of liberty is permissible only on the grounds envisaged by Article 5(1) ECHR.

Where the authorities possess credible facts or information giving rise to a reasonable suspicion that a person has committed an offence, they may arrest that person on suspicion of committing an offence in accordance with Article 5(1)(c) ECHR and ensure all attendant guarantees, including the right to an adversarial hearing before a court enabling the suspect to contest the reasonableness of the suspicion and ensuring their access to materials necessary for challenging detention effectively.

Proposals for administrative forms of detention based on suspicion against the person but which circumvent the protections of criminal procedure are in principle unlawful, at least in so far as the state concerned has not formally derogated from international human rights obligations, including Article 5 ECHR due to a state of emergency that threatens the life of the nation.

Detention must even then be subject to strict criteria of necessity and proportionality, be subject to judicial review and allow for access to a lawyer. Whatever the basis for detention, solitary confinement must only be imposed in exceptional cases as a last resort, for as short a time as possible and subject to independent review, only pursuant to the authorisation by a competent authority and must never be prolonged. It can only be applied in conditions that ensure the detainees rights to health, due process and protection against ill-treatment will not be violated. Effective access to legal counsel and consular services should be ensured at all times.

Right to fair trial.

Individuals suspected of terrorism-related offences should be investigated, charged and tried before independent and impartial courts within the ordinary criminal justice system. Proceedings relating to terrorism offences sometimes involve evidence obtained from overseas operations, surveillance, intelligence and military agencies, which may be relied upon to demonstrate aspects of substantive offence definitions such as the individual’s intention and their concrete participation in terrorist offences; they may also be subject to particular media scrutiny.

Such proceedings must respect international law and standards on the right to a fair trial, as protected by Article 14 ICCPR, Article 6 ECHR and supported by EU Directive 2010/64/EU on the right to interpretation and translation in criminal proceedings, Directive 2012/13/EU on the right to information in criminal proceedings, Directive 2013/48/EU on the right of access to a lawyer in criminal proceedings, and further Directives adopted under Article 82(2) TFEU including on the presumption of innocence, safeguards for children and legal aid.

These measures foresee no possibility of general derogation in times of emergency, and any limitations on the rights concerned must therefore be in accordance with the law, confined to what is necessary and proportionate to the legitimate aim pursued, subject to judicial oversight and must not undermine the overall fairness of the trial.

Outside the context of criminal proceedings (e.g. asset freezing, security measures imposing restrictions on individuals or organisations), the right to be heard and rights of defence should also be fully respected, in particular by enabling the person concerned to comment effectively upon the evidence which serves as the basis for the decision against them.

Definition of terrorism.

International human rights bodies have repeatedly expressed their concern that the potentially vague and over-broad scope of the definitions of terrorism in domestic law in certain jurisdictions may contravene the principle of legality and could lead to violations of human rights. Similar concerns apply to the definition of terrorism under EU law.

Member States and EU institutions should apply clear definitions of what constitutes a terrorist offence or ancillary offences of terrorism within national criminal law, to protect against arbitrary or discriminatory application.

Such definitions should ensure that concrete individual participation in intended or actual acts of terrorism is required for the offence to be committed. “Receiving training for terrorism” should be confined to receiving such training wilfully. Moreover, it is essential that offences of “receiving training for terrorism” be subject to establishing specific intent of carrying out, or contributing to the commission of the principal offence as a result of the training. In the absence of such intent, there is a risk of criminalising conduct, which lacks a sufficient proximate causal link with the main criminal offence.

It should be clear that these new criminal law provisions do not apply to conduct governed by international humanitarian law. States should give priority to fulfilling their existing international legal obligations to investigate and prosecute war crimes, crimes against humanity and other crimes under international law.

The right to non-discrimination.

Counter-terrorism policies have had a disproportionate impact on certain populations, including ethnic or religious minorities, including Muslims, people of African and Asian descent, migrants, or people perceived to be from these groups. Evidence shows the disproportionate effects on Muslim communities of the post 9/11 practices, such as racial profiling. 3

Evidence also shows that more recent European States’ policies and practices have disproportionately targeted Muslims and people perceived to be Muslim.

Ethnic profiling has been reported as on the rise in several EU member states. Intelligence services, police authorities and justice systems should be equipped to ensure fair and efficient policing and equal access to justice.

Discrimination undermines social cohesion and society as a whole, and can reinforce radicalisation and violence. Equality and non-discrimination   standards   must   be   complemented   by   specific   policy   strategies   by   Member States to address all forms of racism, including anti-Semitism, Afrophobia and Islamophobia. We welcome commitments made by the European Commission at the European Commission Colloquium on fundamental rights in October 2015, but encourage concrete follow-up in terms of obligations for Member States.

Freedom of expression and peaceful assembly.

Freedom of expression is often curtailed in states proposals to counter radicalisation or counter-terrorism, for instance in measures criminalising glorification of or apology for terrorism.

The proposed Directive on combating terrorism prohibits a person from threatening to commit certain acts or to aid, abet or incite someone to do so,4 even without any direct link to specific terrorist offences or activities in some cases.5  The Directive should include a provision on freedom of expression, as in the Council’s 28 November 2008 Framework Decision on combating terrorism.

Further, online surveillance and limits to freedom of expression should, in line with the primary law of the EU and international law, be provided in by law, be proportionate, necessary and subject to data protection law. It would for instance be important to ensure that such restrictions are targeted and subject to judicial pre-authorisation with a requirement for reasonable suspicion. Internet companies should not be pressured into censoring online content, for example by the threat of criminal sanctions, nor should they be forced to cooperate to undermine encryption, which would actually damage security online.

Greater efforts should also be made to combat online hate speech targeting groups at risk of discrimination, with more scrutiny to ensure such efforts meet human rights criteria. Counter-terrorism measures restricting freedom of assembly should be foreseeable and transparent, limited to what is necessary and proportionate in pursuit of a legitimate aim, based on corroborated evidence, have time limits and be subject to independent or judicial review. Blanket bans on demonstrations and other peaceful assemblies should be avoided.

The right to privacy.

The proposed Directive on the long-term storage and use of Passenger Name Record (PNR) for the purpose of profiling individuals as possible serious criminals or terrorists raises serious human rights concerns. These concerns include an excessive data retention period, lack of evidence showing that these measures are effective (in fact, the collection of data on an indiscriminate and mass basis has not been shown as necessary for preventing terrorist attacks) and the high risk of discriminatory use of the data depending on the way algorithms or data analyses indicators are designed.

The undersigned organisations are further concerned by indiscriminate mass surveillance practices carried-out by some Member States. In addition, PNR and other untargeted data mining and surveillances practices can lead to discriminatory behaviour and the prohibited processing of data revealing race, ethnic origin or religion through the use of proxies.

Both in this context and in context of the wider demands from law enforcement agencies for Internet companies to arbitrarily infringe on human rights, special attention needs to be brought to the development and use of algorithms for crime-fighting purposes.

Human rights of asylum seekers and migrants.

Migration is not a crime. States must refrain from policies and rhetoric that associate asylum-seekers and migrants with the threat of terrorism, and must not use counter-terrorism and counter-radicalisation measures as an excuse for curbing commitments to migration and international protection.

Additional “targeted” border checks, proposed in the context of the reform of Schengen, are problematic because they are based on travel and personal characteristics of individuals, and run the risk of ethnic profiling. Recent proposals to revise the mandate of EU border surveillance agency Frontex, and extend its competences, strengthen the security-oriented approach of European migration policy at the expense of migrants’ human rights.

These amendments must take into account the human rights obligations of Member States and the EU and should be accompanied by adequate safeguards for the respect of the human rights of EU citizens, migrants, asylum-seekers and refugees.

Without safeguards, monitoring and training for the new EU border and coastal guards and frontline officers, risks of human rights violations are higher. Efforts should be made to restore ethnic and religious minorities’ trust in law-enforcement authorities and promote community policing, using existing best practices such as through the hiring and training of policemen/women to engaging highly diverse communities in full respect of their cultural, religious and ethnic backgrounds. Effective policing relies on trust within communities.

Freedom of movement.

Criminalising travel for terrorism, as in the proposed Directive on Combating Terrorism, has a direct impact on freedom of movement. The right to leave a country, including one’s own, should only be restricted for specific and legitimate reasons and by proportionate means and not on general assumptions. The right to re-enter your own country must never be restricted arbitrarily or disproportionately.

Proposals which would have the effect of banning citizens from re-entering their countries should not be based on general assumptions. The potential withdrawal of an individual’s ID or passport based on suspicion of radicalisation and without a judicial decision based on an explicit and reasonable set of criteria set out in the law is law is incompatible with the right to freedom of movement. The withdrawal of EU citizenship for persons convicted of terrorism-related offences could lead to statelessness and additional arbitrary penalties.

Freedom of religion or belief.

Article 18 of the ICCPR and Article 9 ECHR do not permit any limitation to freedom to hold any thought, conscience and religion or the freedom to have or to adopt a religion or belief of one’s choice. Mosques should not be closed based on their alleged radical affiliation, without clear elements pointing to the establishment of responsibility for the commission of criminal acts of any of the individuals who owned or administered them.

Proposals to separate ‘radical’ prisoners from the rest of detainees would seem difficult to implement without unjustifiably infringing on freedom of religion as definitions of “radical” are vague, and no Member State has formulated a reliable and non-discriminatory list of indicators of radicalisation.

The proposal in the November 2015 Council conclusions to “develop risk assessment tools and tools to detect early signs of radicalisation in prisons” should ensure safeguards to prevent arbitrary profiling and protect freedom of religion and non-discrimination among prisoners. Prisons need more education and other programmes and resources to fully play their rehabilitation and reintegration role. For some offenders, alternative measures to detention should be explored as a way to reduce overcrowding in prisons, reduce repeat offender rates as well as prevent further radicalisation and encourage re-integration in society. The administration must organise meetings with former detainees who have managed their integration into society.

Human rights education and social inclusion.

The reaffirmation of “EU values” in the education systems fall short of addressing social exclusion and human rights violations, and therefore do not offer a real counter-narrative to radicalisation. Human rights and the rule of law are universal values, with their basis in the Universal Declaration of Human Rights, and are not exclusive to any one region or culture. Comprehensive human rights education programmes should be available in schools, including on digital rights, equality and non-discrimination, European history and minorities’ contributions to Europe. Long-term social investment in education, housing, employment, health and social services are crucial to stop the massive disenfranchisement of sizeable parts of the population.

 Counter-terrorism and human rights in external affairs.

The EU should implement the Operational Human Rights Guidance for EU external cooperation actions addressing “Terrorism, Organised Crime and Cybersecurity: Integrating the Rights-Based Approach”.

As committed to in the EU strategic framework on human rights and democracy, the EU should ensure that human rights and rule of law are fully respected in the implementation of its activities, projects and agreements and are at the centre of all EU agencies, EU programmes, legislation, policies and mechanisms.

Cooperation with third countries requires a human rights risk assessment, and the setting-up of monitoring-protection-reporting mechanisms to ensure the full protection of human rights. Countering terrorism should go hand in hand with activities ensuring the full protection of human rights, including the rights of Human Rights Defenders and with concrete measures protecting the space for civil society in regard to counter-terrorism and security issues. Failure to take such measures has contributed to increases in radicalisation and impunity.

NOTES

1.See Article 15 of the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and the Guidelines to EU policy towards third countries on torture and other cruel, inhuman or degrading treatment or punishment, General Affairs Council of 18 April 2008.
2 See Article 3 of the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, and Article 33 of the 1951 Convention Relating to the Status of Refugees and article 33 of the 1951 Convention Relating to the Status of Refugees.
3   From   the   European   Network   Against   Racism   (ENAR)   Shadow   reports,   Open   Society   Foundations   (OSF),   Amnesty International and the European Union Agency for Fundamental Rights (FRA).
4 Articles 3(2)(i), 8 to 13 and 16 of the draft Directive on combating terrorism.
5. Article 15 of the draft Directive.

 

(*) Signed:

  • European Network Against Racism (ENAR)
  • Amnesty International
  • International Federation of Human Rights (FIDH)
  • International Commission of Jurists (ICJ)
  • Open Society European Policy Institute
  • World Organisation Against Torture (OMCT)
  • Fair Trials
  • European Digital Rights (EDRi)
  • Forum of European Muslim Youth and Student Organisations (FEMYSO)
  • International Federation of Action by Christians for the Abolition of Torture (FIACAT)
  • International Rehabilitation Council for Torture Victims (IRCT)
  • Association for the Prevention of Torture (APT)
  • European Association for the Defense of Human Rights (AEDH)

Europe to the Rescue? EU Law, the ECHR and Legal Aid

NOTA BENE : Chapter from Palmer, Cornford, Marique and Guinchard, Access to Justice: Beyond the Policies and Politics of Austerity (Hart, 2016)

by  Steve Peers

Introduction

Some potentially radical changes in public policy are prevented, or at least constrained somewhat, by the twin protections provided by European Union (EU) law and the European Convention on Human Rights (ECHR). Is this true of cut backs of legal aid in civil and administrative cases?

Legal aid in EU countries takes two forms: support for the costs of a lawyer, and exemption from court fees.1 Some states provide for only one of these types of support, and some provide both. There are also alternative means of assisting litigants, namely: legal expenses insurance, legal advice centres, pro bono work and self-help services.2 Across the EU, there is a wide discrepancy in the amount of legal aid expenditure per person, with most Member States spending less than €5 per person and expenditure being cut in many countries.3

The ECHR

Although Article 6(3)(c) ECHR guarantees legal aid as regards criminal matters, there is no express provision on legal aid in civil or administrative proceedings. However, starting with the 1979 judgment in Airey v Ireland,4 the European Court of Human Rights (ECtHR) stated that the general right to a fair trial in Article 6(1) ECHR could include an implied right to legal aid in civil cases too, if this is necessary to ensure effective access to justice. The facts of the case concerned judicial separation proceedings, and the Court considered that the alternative of presenting her case in person would not fully guarantee the applicant’s right to a fair trial, due to the complex procedural and substantive law, the need for expert advice as regards evidence and other witnesses, and the emotional impact of the case.

The Court rejected the argument that a right to legal aid in civil proceedings brought the ECHR unduly into the field of social rights, and that Article 6(3)(c) ECHR implied a contrario that there was no right to legal aid in civil matters.

The key point was that ‘despite the absence of a similar clause for civil litigation’, Article 6(1) may sometimes compel the State to provide for the assistance of a lawyer when such assistance proves indispensable for an effective access to court either because legal representation is rendered compulsory, as is done by the domestic law of certain Contracting States for various types of litigation, or by reason of the complexity of the procedure or of the case.

Subsequent case law made clear that there is no general right to legal aid in all civil proceedings. Rather, any limitation on the right of access to the courts (the implied right which legal aid facilitates) cannot undermine the very core of the right.

Limitations of the right must pursue a legitimate aim, and must also be proportionate in light of the legitimate aim which they seek to satisfy. For instance, in Tolstoy-Miloslavsky the applicant, a defendant in a libel case, challenged an order for security for costs of over £100,000 that he would have to pay within 14 days in order to bring an appeal.5

The ECtHR ruled that there was a ‘legitimate aim’ for the costs order (protecting the other party from shouldering his own costs if the applicant could not pay them in the event of an unsuccessful appeal). The merits test imposed upon the proceedings could also be ‘said to have been imposed in the interests of a fair administration of justice’. The security for costs requirement did not impair ‘the very essence’ of the right of access to court, because there had already been an extensive first-instance hearing; the sum was a reasonable estimate of the costs involved; the applicant could not have raised the money in a longer period of time; the national court took the merits into account when considering a possible waiver of an order for security of costs; the applicant was more interested in determining liability than costs (he had refused a proposed settlement); and there was a full judicial assessment of the costs issue. Therefore there was no ‘arbitrariness’ in issuing the order for security of costs.

In the case of Kreuz v Poland,6 the ECtHR reiterated that a requirement to provide security for costs was in principle a legitimate restriction on access to court. But in that case, the required security amounted to a year’s average salary. Although the applicant was a businessman, the dispute was ‘related only loosely, if at all, to a business activity as such’. Rather it was a claim for damages against a public authority. Also, the national courts only considered his hypothetical earning capacity, not the amount which he actually earned, did not supply any evidence to contradict his account of his earnings, and made assumptions which were not supported by any evidence. Moreover, national law allows for the exemption from court fees to be revoked if the applicant’s financial situation improves. On the whole, then, there was an insufficient balance between the state interest in collecting court fees and the applicant’s right to vindicate his claim in the courts, since the required fee was excessive and deterred him from going to court at all.

Another key judgment is Steel and Morris v United Kingdom.7 In a case involving libel defendants, the ECtHR began by reiterating the basic case law on when legal aid was necessary in civil cases pursuant to Article 6 ECHR. This must be determined on the basis of the particular facts and circumstances of each case and will depend, inter alia, upon the importance of what is at stake for the applicant in the proceedings, the complexity of the relevant law and procedure and the applicant’s capacity to represent him or herself effectively. Restrictions are possible if they ‘pursue a legitimate aim and are proportionate’. So conditions can be imposed on ‘the grant of legal aid based, inter alia, on the financial situation of the litigant or his or her prospects of success in the proceedings’.

The state is not obliged to grant legal aid ‘to ensure total equality of arms between the assisted person and the opposing party, as long as each side is afforded a reasonable opportunity to present his or her case under conditions that do not place him or her at a substantial disadvantage vis-à-vis the adversary’.

Applying these criteria, first of all, this case was different from previous judgments like Airey because ‘the proceedings … were not determinative of important family rights and relationships’, and usually there is a distinction between a defamation action aiming to protect an individual’s reputation from an application for judicial separation, ‘which regulates the legal relationship between two individuals and may have serious consequences for any children of the family’. But here the applicants did not bring the proceedings, but ‘acted as defendants to protect their right to freedom of expression, a right accorded considerable importance under the Convention’, and the damages awarded against them were huge in comparison with their modest incomes.

The case was also distinct from prior judgments ruling that the English law of defamation and civil procedure is not complex enough to require legal aid,8 since those rulings concerned a single allegation while Steel and Morris concerned the longest trial in English history, with thousands of pages of evidence, over 100 witnesses, judgments running to over 1000 pages and numerous legal and procedural issues.

Compared with prior cases, in which the defamation actions were brought by professionals, the applicants would have met the means test for legal aid and benefited from some pro bono legal assistance and latitude extended by the courts. But the ECtHR ruled that this was not a ‘substitute for competent and sustained representation by an experienced lawyer familiar with the case and with the law of libel’, and the ‘disparity’ between their legal assistance and the plaintiff’s (McDonald’s Restaurants) ‘was of such a degree that it could not have failed, in this exceptionally demanding case, to have given rise to unfairness’. Therefore there was a breach of Article 6.

As for the form of legal aid granted, states have discretion to provide different forms of legal aid for different types of litigation. For instance, it was acceptable for the UK to exclude defamation cases from legal aid support, since it had granted potential litigants of defamation cases the right to two hours of free pre-litigation legal advice, if they had insufficient means.9

As regards one type of plaintiff (profit-making companies), the ECtHR ruled that their exclusion from a national legal aid scheme was acceptable since the discrimination between them and non-profit-making organisations and natural persons had an objective and reasonable justification (the possibility to deduct the legal costs from the company’s tax bill).10

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