LIBE Committee resume the works on the future SWIFT long term agreement

The LIBE Committee discussed on 7 April 2010 the re-launch of negotiations on a SWIFT long term agreement.

It has to be recalled that following the European Parliament refusal to provide its consent on the US-EU SWIFT Interim Agreement last February a new draft-negotiating mandate has been indeed submitted by the College of Commissioners on 24 March 2010 to the Council, which in turn is expected to approve it on 22/23 April. According to the Commission the new agreement might be concluded at the beginning of June of this year.

Will the new agreement be founded on Judicial cooperation in penal matters or ….?

According to the Commission statement and the legal basis chosen for the new mandate (art. 82 of the TFUE) the future agreement will comply with the EP request  expressed already in September 2009 to build the EU US cooperation in this domain in a framework which could be consistent with the new EU Treaty the art. 8 of the European Charter of Fundamental rights and the request of some Constitutional Courts such as the German Court. To do so the draft mandate has foreseen the creation of  an European “Authority of  judicial nature” which could check the necessity and proportionality of the US request of SWIFT data .

Therefore during the debate Rapporteur Ms Jeanine Hennis Plasschaert (ALDE) enquired the European Commission on whether it would be possible to explore alternative legal frameworks from judicial cooperation in penal matters .

Mr Faull underlined that the Commission could not see any feasible short term alternative system to the mutual legal assistance framework, however this will not prevent the Commission to explore also other possibilities, following the requests from the Spanish Presidency and by taking in account the question posed by the Rapporteur. On the same logic to find alternative solution to judicial cooperation Ms Carmen Romero López (S&D) suggested to work within the framework of an anti-money laundering directive revised to include banking messaging companies.

Therefore according to Jan Philipp Albrecht (Greens/EFA) these “alternative” approaches would go against the European Charter on Fundamental Rights, the European Convention on Human Rights as well as the German Court (see recent judgment on data retention) with the risk, as pointed out “that Germany will feel impelled to reject this mandate on constitutional grounds”. To avoid possible “clashes” with European or national constitutional courts Mr Albrecht has then suggested then to request for the opinion of the EU Court of Justice on the compatibility of the draft agreement with the EU legislation, as foreseen by Article 218 §11 of the Treaty on the Functioning of the European Union.

The new draft negotiating mandate

The new draft negotiating mandate as agreed upon by the College of Commissioners on 24 March 2010 and upon approval of the Council foresees  -among others- the following elements:

  • Safeguards to ensure the respect of the fundamental right to the protection of personal data;
  • Transfer to third countries of only information derived from terrorism investigations (“lead information”);
  • A judicial public authority in the EU with the responsibility to receive requests from the United States Department of the Treasury, verify if  the substantiated  request meets the requirements of the Agreement and if appropriate require the provider to transfer the data on the basis of a “push” system;
  • Retention of personal data extracted from the TFTP database for no longer than necessary for the specific investigation or prosecution and non-extracted data retained for five years;
  • Onward transfer of information obtained through the TFTP under the Agreement shall be limited to law enforcement, public security, or counter terrorism authorities of US government agencies or of EU Member States and third countries or Europol or Eurojust as well as Interpol.
  • The Agreement shall provide for:

1) the right of individuals to information relating to the processing of personal data;

2) the right to access his/her personal data;

3) to the rectification, and

4) as appropriate erasure thereof.

Hence, it appears that the College of Commissioners has tried to address some of the past concerns addressed by the MEPs.

However, while demonstrating the willingness to explore grounds for a new agreement on the SWIFT data-sharing, some of the Members of the LIBE Committee, expressed a variety of concerns, most of which were already raised in the previous report of the European Parliament and that can be summarised as follows:

Proportionality

Members of Parliament still have concerns that the transfer of bulk data will not be addressed properly. According to Ms Sophie In’t Veld (ALDE) filtering should be done in the EU for financial data, PNR and telecommunications. Also Ms  Birgit Sippel (S&D) stressed that SWIFT should be able to individualise data ahead of a transfer.

In this regard it remains to be seen whether SWIFT has the technical ability but not the willingness to bare the costs derived from selecting and transferring  individual data instead of ‘data in bulk’.

According to Mr Faull it will not be possible to reduce the quantity of data transferred however he will work to reduce their size by removing the presumably non-useful data.

Data storage period

MEPs expressed concerned over the five years data storage as foreseen by the new text despite the attempts of Mr Faull to reassure the Committee stating that five years was not “unreasonable” given data’s useful lifespan in counter-terrorism.

Access, rectification, compensation and redress outside the EU

Mr Stavros Lambrinidis (S&D) enquired whether there was no other way for the bulk transfer of data and if it was not possible to impose some prior European check when the US wants to transfer the data to third countries.

Furthermore MEPs expressed the need to ensure the right to appeal to European citizens in front of American authorities in case of personal data abuse/misuse.

In this respect Mr Busutill asked to ensure equal rights between US and EU citizens and Mr Faull replied that the Privacy Act is indeed discriminatory and therefore does not guarantee the same rights to EU and US citizens.  However the Privacy Act does not apply to the TFTP , hence asking to apply the same right of US citizens to the European ones means not having any rights at all.

No evidence on the effectiveness

There still is no evidence that cases of terrorism have been prevented or prosecuted based exclusively on the financial data.

Procedural concerns

The fact that the EU is planning to conclude an executive agreement on exchanges of data before negotiating the general agreements on rules governing the data protection raise additional concerns. Indeed, the acceleration of the envisaged SWIFT II agreement will limit the margin of maneuver for negotiators on the overarching transatlantic agreement on data sharing and data protection. In other words, it will force the latter to simply accept praxis established before the development of the general principles governing data protection.

Also the Commission -using the words of the Director General of DG JLS Mr Jonathan Faull- is of the opinion that “in an ideal world” general norms should be established before specific ones. However, no sufficient reasons have been provided to explain why the European Union is accelerating the negotiations on the SWIFT agreement instead of giving precedence to the establishment of overarching general framework on EU-US data protection and exchange.

In conclusion, the European Union is engaging in a delicate exercise trying to define at the same time internal, external, specific and general data protection norms. This would have been possible -in theory- if the European Union had clear objectives and points of reference. However, following the LIBE Committee debate on 7 April this seems far from being the case.

L.B.

Rights to interpretation and translation in criminal proceedings: LIBE amendments and new Commission proposal

As anticipated in a previous post in this blog the Committee on Civil Liberties, Justice and Home affairs (LIBE) discussed the draft report on the directive of the European Parliament and of the Council on the rights to interpretation and to translation in criminal proceedings presented by rapporteur Sarah Ludford on 17 March 2010, based on the initiative put forward by 13 Member states.

But this was not the only initiative discussed on this matter, also that of the European Commission presented on 9 March 2010 was discussed.

Therefore, after a brief introduction of the aim of the directive, the amendments of the LIBE on the MSs’ initiative will be analysed and then, few observations on the Commission proposal will be made on the basis of the debate that took place in the LIBE committee.

Continue reading “Rights to interpretation and translation in criminal proceedings: LIBE amendments and new Commission proposal”

On the BVG ruling on Data Retention: “So lange” – here it goes again…

As mentioned a couple of weeks ago in the blog (10 January 2010 – Directive on data retention: now the floor goes to the German Constitutional Court) the German Constitutional Court was preparing to make a decision about the German internal application of the controversial Data Retention Directive (2006/24/EC), demanding telecommunication data retention from 6 months till 2 years. Some historical background is provided in the above mentioned blog. On March 2 the decision has arrived (1 BvR 256/08 , 1 BvR 263/08 , 1 BvR 586/08). And what a decision it is. It is of the same work as the famous decision in Marbury v. Madison presided over by John Marshall. The German Federal Constitutional Court (Bundesverfassungsgericht) avoided a direct conflict with the ECJ but showed once again that it will take its prerogatives very seriously regarding the protection of human rights and annulled the German provisions applying the Directive.

Continue reading “On the BVG ruling on Data Retention: “So lange” – here it goes again…”

The first EU steps towards the accession to the European Convention of Human rights

The European Parliament Committee on Civil Liberties, Justice and Home Affairs (LIBE) debated on February 23rd the state of the play of the EU accession to the European Convention of Human Rights (ECHR).

The accession is imposed by Article 6 TEU and its main impact will be the creation of an additional layer of protection of fundamental rights in the EU legal order. This entails the possibility to challenge before the European Court of Human Rights (ECtHR) also EU acts if they breach the fundamental rights of an individual (see my previous post here).

Continue reading “The first EU steps towards the accession to the European Convention of Human rights”

Interlaken declaration and Action plan to reform the European Court of Human Rights

The text below have been taken from the official Council of Europe Press release presenting the result of the Interlaken Conference (19.02.2010)
It is worth noting that on Thursday, just before the opening of the Ministerial Conference, the Russian Minister of Justice Alexander Konovalov deposited the ratification instrument of Protocol 14 which will therefore enter into force on 1 June 2010.

Interlaken Declaration
19. February 2010

The High Level Conference meeting at Interlaken on 18 and 19 February 2010 at the initiative of the Swiss Chairmanship of the Committee of Ministers of the Council of Europe (“the Conference”):
1 Expressing the strong commitment of the States Parties to the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) and the European Court of Human Rights (“the Court”);
2 Recognising the extraordinary contribution of the Court to the protection of human rights in Europe;
3 Recalling the interdependence between the supervisory mechanism of the Convention and the other activities of the Council of Europe in the field of human rights, the rule of law and democracy;
4 Welcoming the entry into force of Protocol No. 14 to the Convention on 1 June 2010;
5 Noting with satisfaction the entry into force of the Treaty of Lisbon, which provides for the accession of the European Union to the Convention;
6 Stressing the subsidiary nature of the supervisory mechanism established by the Convention and notably the fundamental role which national authorities, i.e. governments, courts and parliaments, must play in guaranteeing and protecting human rights at the national level;
7 Noting with deep concern that the number of applications brought before the Court and the deficit between applications introduced and applications disposed of continues to grow;
8 Considering that this situation causes damage to the effectiveness and credibility of the Convention and its supervisory mechanism and represents a threat to the quality and the consistency of the case-law and the authority of the Court;
9 Convinced that over and above the improvements already carried out or envisaged additional measures are indispensable and urgently required in order to:
i. achieve a balance between the number of judgments and decisions delivered by the Court and the number of incoming applications;
ii. enable the Court to reduce the backlog of cases and to adjudicate new cases within a reasonable time, particularly those concerning serious violations of human rights;
iii. ensure the full and rapid execution of judgments of the Court and the effectiveness of its supervision by the Committee of Ministers;
10 Considering that the present Declaration seeks to establish a roadmap for the reform process towards long-term effectiveness of the Convention system;

The Conference

(1) Reaffirms the commitment of the States Parties to the Convention to the right of individual petition;

(2) Reiterates the obligation of the States Parties to ensure that the rights and freedoms set forth in the Convention are fully secured at the national level and calls for a strengthening of the principle of subsidiarity;

(3) Stresses that this principle implies a shared responsibility between the States Parties and the Court;

(4) Stresses the importance of ensuring the clarity and consistency of the Court’s case-law and calls, in particular, for a uniform and rigorous application of the criteria concerning admissibility and the Court’s jurisdiction;

(5) Invites the Court to make maximum use of the procedural tools and the resources at its disposal;

(6) Stresses the need for effective measures to reduce the number of clearly inadmissible applications, the need for effective filtering of these applications and the need to find solutions for dealing with repetitive applications;

(7) Stresses that full, effective and rapid execution of the final judgments of the Court is indispensable;

(8) Reaffirms the need for maintaining the independence of the judges and preserving the impartiality and quality of the Court;

(9) Calls for enhancing the efficiency of the system to supervise the execution of the Court’s judgments;

(10) Stresses the need to simplify the procedure for amending Convention provisions of an organisational nature;

(11) Adopts the following Action Plan as an instrument to provide political guidance for the process towards long-term effectiveness of the Convention system.

ACTION PLAN:

A. Right of individual petition
1. The Conference reaffirms the fundamental importance of the right of individual petition as a cornerstone of the Convention system which guarantees that alleged violations that have not been effectively dealt with by national authorities can be brought before the Court.
2. With regard to the high number of inadmissible applications, the Conference invites the Committee of Ministers to consider measures that would enable the Court to concentrate on its essential role of guarantor of human rights and to adjudicate well-founded cases with the necessary speed, in particular those alleging serious violations of human rights.
3. With regard to access to the Court, the Conference calls upon the Committee of Ministers to consider any additional measure which might contribute to a sound administration of justice and to examine in particular under what conditions new procedural rules or practices could be envisaged, without deterring well-founded applications.

B. Implementation of the Convention at the national level
4. The Conference recalls that it is first and foremost the responsibility of the States Parties to guarantee the application and implementation of the Convention and consequently calls upon the States Parties to commit themselves to:
a) continuing to increase, where appropriate in co-operation with national human rights institutions or other relevant bodies, the awareness of national authorities of the Convention standards and to ensure their application;
b) fully executing the Court’s judgments, ensuring that the necessary measures are taken to prevent further similar violations;
c) taking into account the Court’s developing case-law, also with a view to considering the conclusions to be drawn from a judgment finding a violation of the Convention by another State, where the same problem of principle exists within their own legal system;
d) ensuring, if necessary by introducing new legal remedies, whether they be of a specific nature or a general domestic remedy, that any person with an arguable claim that their rights and freedoms as set forth in the Convention have been violated has available to them an effective remedy before a national authority providing adequate redress where appropriate;
e) considering the possibility of seconding national judges and, where appropriate, other high-level independent lawyers, to the Registry of the Court;
f) ensuring review of the implementation of the recommendations adopted by the Committee of Ministers to help States Parties to fulfil their obligations.
5. The Conference stresses the need to enhance and improve the targeting and coordination of other existing mechanisms, activities and programmes of the Council of Europe, including recourse by the Secretary General to Article 52 of the Convention.

C. Filtering
6. The Conference:
a) calls upon States Parties and the Court to ensure that comprehensive and objective information is provided to potential applicants on the Convention and the Court’s case-law, in particular on the application procedures and admissibility criteria. To this end, the role of the Council of Europe information offices could be examined by the Committee of Ministers;
b) stresses the interest for a thorough analysis of the Court’s practice relating to applications declared inadmissible;
c) recommends, with regard to filtering mechanisms,
i. to the Court to put in place, in the short term, a mechanism within the existing bench likely to ensure effective filtering;
ii. to the Committee of Ministers to examine the setting up of a filtering mechanism within the Court going beyond the single judge procedure and the procedure provided for in i).

D. Repetitive applications

7. The Conference:
a) calls upon States Parties to:
i. facilitate, where appropriate, within the guarantees provided for by the Court and, as necessary, with the support of the Court, the adoption of friendly settlements and unilateral declarations;
ii. cooperate with the Committee of Ministers, after a final pilot judgment, in order to adopt and implement general measures capable of remedying effectively the structural problems at the origin of repetitive cases.
b) stresses the need for the Court to develop clear and predictable standards for the “pilot judgment” procedure as regards selection of applications, the procedure to be followed and the treatment of adjourned cases, and to evaluate the effects of applying such and similar procedures;
c) calls upon the Committee of Ministers to:
i. consider whether repetitive cases could be handled by judges responsible for filtering (see above Section C);
ii. bring about a cooperative approach including all relevant parts of the Council of Europe in order to present possible options to a State Party required to remedy a structural problem revealed by a judgment.

E. The Court
8. Stressing the importance of maintaining the independence of the judges and of preserving the impartiality and quality of the Court, the Conference calls upon States Parties and the Council of Europe to:
a) ensure, if necessary by improving the transparency and quality of the selection procedure at both national and European levels, full satisfaction of the Convention’s criteria for office as a judge of the Court, including knowledge of public international law and of the national legal systems as well as proficiency in at least one official language. In addition, the Court’s composition should comprise the necessary practical legal experience;
b) grant to the Court, in the interest of its efficient functioning, the necessary level of administrative autonomy within the Council of Europe.
9. The Conference, acknowledging the responsibility shared between the States Parties and the Court, invites the Court to:
a) avoid reconsidering questions of fact or national law that have been considered and decided by national authorities, in line with its case-law according to which it is not a fourth instance court;
b) apply uniformly and rigorously the criteria concerning admissibility and jurisdiction and take fully into account its subsidiary role in the interpretation and application of the Convention;
c) give full effect to the new admissibility criterion provided for in Protocol No. 14 and to consider other possibilities of applying the principle de minimis non curat praetor.
10. With a view to increasing its efficiency, the Conference invites the Court to continue improving its internal structure and working methods and making maximum use of the procedural tools and the resources at its disposal. In this context, it encourages the Court in particular to:
a) make use of the possibility to request the Committee of Ministers to reduce to five members the number of judges of the Chambers, as provided by Protocol No. 14;
b) pursue its policy of identifying priorities for dealing with cases and continue to identify in its judgments any structural problem capable of generating a significant number of repetitive applications.

F. Supervision of execution of judgments

11. The Conference stresses the urgent need for the Committee of Ministers to:
a) develop the means which will render its supervision of the execution of the Court’s judgments more effective and transparent. In this regard, it invites the Committee of Ministers to strengthen this supervision by giving increased priority and visibility not only to cases requiring urgent individual measures, but also to cases disclosing major structural problems, attaching particular importance to the need to establish effective domestic remedies;
b) review its working methods and its rules to ensure that they are better adapted to present-day realities and more effective for dealing with the variety of questions that arise.

G. Simplified Procedure for Amending the Convention

12. The Conference calls upon the Committee of Ministers to examine the possibility of introducing by means of an amending Protocol a simplified procedure for any future amendment of certain provisions of the Convention relating to organisational issues. This simplified procedure may be introduced through, for example:
a) a Statute for the Court;
b) a new provision in the Convention similar to that found in Article 41(d) of the Statute of the Council of Europe.

Implementation

In order to implement the Action Plan, the Conference:
(1) calls upon the States Parties, the Committee of Ministers, the Court and the Secretary General to give full effect to the Action Plan;
(2) calls in particular upon the Committee of Ministers and the States Parties to consult with civil society on effective means to implement the Action Plan;
(3) calls upon the States Parties to inform the Committee of Ministers, before the end of 2011, of the measures taken to implement the relevant parts of this Declaration;
(4) invites the Committee of Ministers to follow-up and implement by June 2011, where appropriate in co-operation with the Court and giving the necessary terms of reference to the competent bodies, the measures set out in this Declaration that do not require amendment of the Convention;
(5) invites the Committee of Ministers to issue terms of reference to the competent bodies with a view to preparing, by June 2012, specific proposals for measures requiring amendment of the Convention; these terms of reference should include proposals for a filtering mechanism within the Court and the study of measures making it possible to simplify the amendment of the Convention;
(6) invites the Committee of Ministers to evaluate, during the years 2012 to 2015, to what extent the implementation of Protocol No. 14 and of the Interlaken Action Plan has improved the situation of the Court. On the basis of this evaluation, the Committee of Ministers should decide, before the end of 2015, on whether there is a need for further action. Before the end of 2019, the Committee of Ministers should decide on whether the measures adopted have proven to be sufficient to assure sustainable functioning of the control mechanism of the Convention or whether more profound changes are necessary;
(7) asks the Swiss Chairmanship to transmit the present Declaration and the Proceedings of the Interlaken Conference to the Committee of Ministers;
(8) invites the future Chairmanships of the Committee of Ministers to follow-up on the implementation of the present Declaration.

European Parliament approves Barroso II

The European Parliament has approved by a very large majority, 488 votes in favour, 137 against and 72 abstentions, the Barroso II team on Tuesday 9 February, in Strasbourg.

The new Commission begins to work today, Wednesday the 10 February and its mandate will expire on 31 October 2014.

The major political groups (the EPP, the Socialist Group (S&D) and the Liberal Group (ALDE)) supported the new Commission, the Greens/EFA, the GUE/NGL, the Europe Freedom and Democracy Group (EFD) and non-attached members voted against and the Conservative Group (ECR) abstained.

Barroso asserted in front of the plenary that the main priorities of the new Commission (already presented to the EP in September 2009) will be to tackle the current economic and social situation in the EU, the fight against climate change, developing social cohesion, the creation of the freedom and security area, and strengthening Europe’s place in the world.

As part of the new framework agreement between the EP and the Commission, in which the main elements were approved by MEPs on Tuesday Barroso committed to carry on social impact analysis when there is a new legislative proposal.

According to the resolution in order to place the Parliament on an equal footing with the Council where the ordinary legislative procedure applies the Commission should:

1) Provide to the EP similar access to information than that guaranteed to the Council on legislative and budgetary matters

2) Provide full documentation to the EP on the Council’s meetings with national experts on the preparation and implementation of EU legislation

3) React to the EP’s legislative initiative within three months and present a proposal within one year or in case of refusal by the executive explain to the plenary the reasons that led to such a decision

4) Recognise the EP’s enhanced role in international negotiations (following the entry into force of the Lisbon Treaty) by providing it with “immediate and full” information at “every stage of negotiations” and by giving it observer status at international conferences.

5) Defend the EP’s position during the negotiation of the European External Action Service and involve it in the revision of the better legislation’ interinstitutional agreement.

6) through its President hold regular dialogue with the EP president .

Despite, President Barroso promised to abide by it during the second phase of negotiations on procedural matters that will get under way, the Parliament did not obtain everything it wanted. First of all, the Commission did not accept to allow the European Parliament to hold hearings of future EU ambassadors. Secondly, although Barroso chose to set a deadline for Parliament’s power of initiative, he did not agree to systematically respond to EP requests, to keep from hindering the Commission’s right of initiative. Finally, It also remains to be seen how far the Commission will agree to go on delivering information upstream to Parliament on certain aspects of EU external policy.

Now that the Barroso II has been approved by the European Parliament it is interesting to look back at what the newly elected commissioners responsible for the area of freedom, security and justice presented during the auditions held in January in front of the legislative assembly.

The Commissioners related to the area of freedom, security and justice Ms Viviane Reding will be the Vice-President of the European Commission and the Commissioner for European Justice, Fundamental Rights, Citizenship and Equal Opportunities. During her hearing, held in January, Ms Reding stated that her main objective will be to create a single justice area and enhancing equal opportunities policies, ending any forms of discrimination and, above all strengthening the legal instruments against violence towards women. In specific the three priorities presented to the Parliament in the field of Justice are:

(1) guaranteeing accused persons and suspects clear rights in the EU

(2) ensuring strong fairness rules in trials and prisons, and

(3) enhancing victims’ rights.

Ms Reding also highlighted the importance of “free circulation of administrative documents and European authentic acts” and therefore announced the publication, at the start of the year, of a Green Paper on the free movement of civil and political rights, expected at the beginning of 2010. Always in this domain, the newly elected Commissioner aims to turn Eurojust, into “a European public prosecutor’s office”. Concerning the promotion and respect of fundamental rights the Commissioner explained back in January that there will be a very specific impact evaluation on our fundamental rights. Ms Reding specified that equal opportunities should be fully integrated into employment and this would be a priority of the Belgian presidency of the Union. Finally Ms Reding stated that together with the Commissioner for Internal Affairs, Cecilia Malmström they will bring forward 169 initiatives under the Stockholm Programme.

Concerning her part, Cecilia Malmström during her hearing held on 19 January, presented immigration and the review of security legislation as the main priorities for the Commission. In relation to immigration three directives will be presented in 2010, namely: seasonal work, internal changes within multilateral companies and payment to trainees. Always in January, the newly elected Commissioner indicated that she propose a strengthening of Frontex at the beginning of 2010. The other main objective is the implementation of an internal security strategy in the EU, although little legislation will be put forward in this domain. Ms Malmström announced a review of the data retention measure at the beginning of 2011 which together the setting up of the Second Generation Information System (SIS II) she will tackle as soon as possible. She also affirmed that she supported the creation of the post of European coordinator of fighting human trafficking. The Commissioner stated that she will also present a communication on the fight against corruption and that she is keen in cooperating with Ms Reding in this domain.

LB

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

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

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

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

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

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

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

(c) an obligation containing limitations on leaving the territory of the issuing State;

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

EDC

Is the respect of minimum standard in criminal procedures utopia?

 The adoption of EU legislation on procedural rights in criminal procedures is at stake since a long time and despite a number of calls from the European Parliament, no legislative instrument is yet in place.

As a consequence, suspects and defendants have no other protection than the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) (all EU Member States are parties to the ECHR) and, after the entry into force of the Treaty of Lisbon, the Charter of fundamental Rights of the European Union.

Works in view of the adoption of a legal instrument in this field started in 2003 with the publication, by the European Commission, of a Green Paper.

Due to the positive feedback received, in 2004 the European Commission tabled a proposal for a framework decision to set common minimum standards for procedural safeguards (COM(2004)0328).

In 2007, after having largely watered down the Commission’s proposal without reaching any result, the Council took note of the impossibility of reaching a consensus on it. Hence, a number of Member States called to limit the application of such an instrument to cross-boarder cases or to cases in which an European Arrest Warrant (EAW) was issued.

In July 2009 the European Commission tabled a new proposal for a framework decision (COM(2009)338) on procedural rights. The proposal was extremely limited in scope covering only the rights to interpretation and translation of all “essential” documents. T

he Swedish Presidency therefore proposed the framework decision to be accompanied by a Council Resolution providing for further measures on training for interpreters and translators, accreditation/certification of interpreters and translators as well as their mandatory registration.

The Swedish Presidency presented also a draft Council Resolution on a “Roadmap” for strengthening procedural rights of suspected and accused persons in criminal proceedings.

The roadmap was adopted at the Justice and Home Affairs Council held on 23 October 2009 and a reference to it is contained in the Stockholm Programme. It covers the following measures:

A: Translation and interpretation

B: Information on rights and information about the charges

C: Legal advice and legal aid

D: Communication with relatives, employers and consular authorities

E: Special safeguards for vulnerable suspected or accused persons

F: A Green Paper on pre-trial detention .

In December 2009 the Treaty of Lisbon entered into force and all pending legislative procedures, including this one, could not come to their end.

Following to the impossibility to adopt the Framework Decision, a group of 13 Member States (BE, DE, ES, EE, FR, HU, IT, LU, AT, PT, RO, FI and SE) tabled an Initiative for the adoption of a Directive on the rights to interpretation and translation in criminal proceedings under the new legal framework provided by the Treaty of Lisbon.

The Initiative is based on the text agreed at Council level in October 2009 and will be negotiated, under the ordinary legislative procedure, under Spanish Presidency.

Will this time the EU manage to provide itself with a legal instrument ensuring to suspects and defendants minimum procedural rights in criminal proceedings?

C.G.

The EU-USA Provisional Agreement on Interbank Financial data access (SWIFT) under European Parliament scrutiny

In the next few weeks the European Parliament will receive  several international agreements in the field of police and judicial cooperation negotiated or signed -albeit not yet ratified by the European Council- before the entry into force of the Lisbon Treaty. 

Among these, special attentions deserve the two agreements signed with the United States concerning access to personal data to fight against terrorism.

The first one concerns personal data managed by airline companies when they conclude a transport contract which has as a destination or point of transition the United States (EU-USA Agreement on access to Passenger Name Record- PNR).

The second one, recently published in the Official Journal, concerns the access to personal and financial data exchanged via interbanking messages and processed worldwide, in almost their totality, by a specific society called SWIFT .

Their access is regulated by the Terrorist Finance Tracking Program (TFTP) on the basis of which the USA Treasury Department may request via an administrative mandate (“subpoena”) to access personal and financial data to prevent and fight terrorism.

The advantage of interbanking messages relies on their fast and easy accessibility compared to financial information, whose access is regulated by the prevention programmes for combating Money Laundering and Terrorist Financing. In fact, on the basis of these measures applied worldwide, it is a bank’s responsibility to signal suspicious transactions to the National Financial Intelligence Unit (FIU) which in turn transmits the information to the FIU of the countries involved in terrorist investigations.[1]  

On the contrary TFTP access is direct, avoiding delays, risks of incomprehension and non-cooperative banks around the globe.

Even if available data are limited (such as clients generalities and amounts of transferred money) they become  essential once they are cross-checked with information coming from other sources related to judicial, police and intelligence investigations.

This is obviously an extraordinary instrument also for the USA. This authorisation is based on exceptional powers granted to the President of the United States on a temporary basis by the  Emergency Economic Powers Act (50 USC, sections 1701-1706). The President immediately used them after the 9/11 attacks and since then the Congress has renewed its authorisation every year.[2]

The TFTP programme remained secret up to 2006 when the USA press[3] published a series of articles and the Society SWIFT released a few statements after obtaining more restrictive measures to the access of data by the USA Treasury Department. 

This took place despite the fact that the TFTP is exceptionally not covered by the Privacy ACT of the United States and neither by the general norms laid down to protect privacy in financial transitions.

The debate triggered at the European Union level resulted in a series of hearings and resolutions of the European Parliament[4], it  set off an investigation of the CE Commission, an opinion of the data protection national authorities Working Group and an investigation carried out by the Belgian authorities ,who are the one responsible for the control of the activities carried onby the company  SWIFT.

The conclusions of these discussions pointed out that the management of these data – although illegal in the EU territory-  is legal in the USA territory on condition that:

-the company SWIFT adheres to the voluntary programme “SAFE HARBOR” to protect its clients[5] and

– American authorities respect a series of self-imposed limitations to limits data access; Furthermore,  the constant presence of SWIFT employees when data are collected should be granted and a periodical review by an independent authority  nominated in a concerted way by the USA and the EU takes place.

This complex jurisdictional construction was – and still is-  based on the principle that these data are in the USA territory and therefore under jurisdiction of the American authorities.

However, things chaged when the company SWIFT restructured the systems architecture of the financial messaging network in 2007 and its global data centres.  Becasue of this, SWIFT decided that the data coming from interbanking transactions outside the USA territory were all relocated exclusively within the European territory no longer allowing a mirror copy of these data in the American servers.

Based on the argument that retained data are crucial to the fight against terrorism, American authorities asked to keep on accessing these data also once they would have been relocated to the EU territory (and under EU legislation), with the guarantee that in case of a terrorist threat these data would have been transmitted back to the EU.

This ofer was mainly made on the basis that the majority of the European states are not equipped to use and process the data gathered in the TFTP. Therefore, in this way not only the United States but also the European Union would have benefit from the programme. 

On the basis of this reasoning, negotiations started before summer 2009 and have been carefully followed by the European Parliament which in its resolution in September 2009 listed the minimum conditions to be applied to make sure that the use of data of TFTP is compatible with European standards. These indications refer to data protection as well as judicial protection standards, given that these are information that can be used for counter terrorism activities.

Against this background two agreements have been put forward:  a first transitional agreement of the limited duration of 9 months and a second longer one whose negotiations should start in the next few weeks.

The “transitional” text of the first agreement has now been published in the Official Journal and will enter into force on 1st February 2010;  it recalls some of the concerns of the European Parliament, not last the one concerning the need to anchor the implementation of this agreement to that on judicial cooperation in criminal matters between the EU and the USA concluded in Washington on 28 October 2009.[6]

It is too early to predict what the European parliament will do. One should not give for granted the outcome of the parliamentary scrutiny and its final vote since the Treaty of Lisbon (Article 16 TFEU) and the now binding Charter of Fundamental Rights[7] have introduced even stricter standard in terms of data protection.

EDC


[1] See GAFI recommendations such as the VII financial provision to gather data concerning transfer above 1.000 $ in Europe (3.000 $ in the USA) and to make them available to the authorities; see also Communitarian Directives on money laundering and Communitarian Regulations in this field (such as  Regulation (CE) No 1781/2006 of the European Parliament and the Council of 15 November 2006 on information on the payer accompanying transfers of funds)  

[2] CRF Presidential Executive Order 13224 issued by the President George Bush on 23 September 2001.

[3] See Wikipedia reconstruction: http://en.wikipedia.org/wiki/Terrorist_Finance_Tracking_Program

[4] See resolution of 6 July 2006 on the interception of bank transfer data from the SWIFT system by the US secret services (OJ C 303 E, 13.12.2006, p. 843) and Resolution of 14 February 2007 on SWIFT, the PNR agreement and the transatlantic dialogue on these issues (OJ C 287 E, 29.11.2007, p. 349).

[5] The Commission CE assessed that Safe Harbor guaranteed a sufficient level of data protection back in 2001.

[6] Processing of EU originating Personal Data by United States Treasury Department for Counter Terrorism Purposes – “SWIFT” (OJ C 166, 20.7.2007, p. 18).

[7] See also the European Convention on Human Rights, in particular Articles 5, 6, 7 and 8 thereof, the Charter of Fundamental Rights, in particular Articles 7, 8, 47, 48 and 49 thereof, Council of Europe Convention No 108 for the Protection of Individuals with regard to Automatic Processing of Personal Data, Directive 95/46/EC and Regulation (EC) No 45/2001.

Terrorism and individual freedom: after Detroit new strategies in the United States and Europe?

The speech where President Obama took full responsibility of the administration’s failure to prevent the aborted attack to the Detroit fight, confirms, if there were any doubts, the firmness and quality of the civic and political debate in the other side of the Atlantic.

By publicly recognising the administration’s liability and, more importantly, taking measures to tackle the loops the strong authority of a country that after 9/11 has made of the fight against terrorism its main priority has been confirmed.

Continue reading “Terrorism and individual freedom: after Detroit new strategies in the United States and Europe?”