9. Internal security -police cooperation – Page 18 – European Area of Freedom Security & Justice

A Tale of Two States: Rule of Law in the Age of Terrorism

ORIGINAL PUBLISHED ON VERFASSUNGSblog

by Giovanna DE MINICO

As a reaction to the recent terrorist attacks in France, several EU member states as well as the EU itself have announced significant anti-terrorism measures.

Even well before the French facts, the UK proposed to isolate suspected terrorists, withdrawing and confiscating their passports to prevent them from entering and leaving the country. This is in line with the aggressive policies of both theRegulation of Investigatory Powers Act 2000 and of the Anti-terrorism, Crime and Security Act 2001.

France, while rhethorically distancing itself from the American Patriot Act, seems to do substantially the same, as President François Hollande announced that he wants to close the online websites suspected of fomenting terrorism. Not even the United States has adopted a measure of such gravity, suffocating the freedom of speech and thought. The US may be responsible for the distant and pervasive control of our private life but it still insists on an open market place of ideas as an undefeatable antidote against the violence spreading germs.

Germany has announced, together with the suspension of the ID card, based on the English model, other measures aimed to reinforce the dialogue between police and intelligence, upholding a demand for cooperation raised by multiple European voices.

The European Union seems to have set definitely aside the very strong querellebetween privacy and security with regard to the subject-matter of PNR, i.e. the personal number record of passengers. This is an ID of single passengers which put together miscellaneous data of various nature, from the personal data to the information about how they paid, what they have eaten, which newspaper they have asked for on board or incidentally their sanitary requirements. Clearly, these data, if properly cross-examined, could be very useful to find out their political or religious thoughts.

The duty to collect this new mountain of data would be imposed on the air carriers for a number of years (yet to be defined precisely). What is even more incompatible with the rule of law is the fact that such measure applies to passengers regardless of their inclusion in a suspects’ list. This issue is not new to the European Union. Actually, it dates back to a Directive proposal of 2011, which was rejected by theLibe Commission in 2013 for infringing the right to privacy and has been brought up again by the European Council in August 2014. These days, it seems to be back in the agenda of the European Parliament after the meeting of the interior Ministers recently held in Place Beavau. The debated issue now is focused only on the number of years of the data keeping, because the resistance of privacy supporters, which fired up the debate at the Libe Commission, seems now to have been set aside in the name of security.

Let’s ask ourselves if this mass recording is necessarly for prevention reasons. My opinion is that the demand for public security is not sufficient to justify such action; in fact, keeping this massive amount of information, applying indiscriminately to all the passengers, makes the investigations slow, ill-timed and, often, inutiliter data.Prevention measures, due to their anticipatory character, must be very timely and focused on well selected targets, otherwise they risk to be only effective when an event has already occurred.

The well known criticism related to privacy violations, disproportionate control, lack of protection against discrimination, departure from the constitutional presumption of innocence, remain standing. Furthermore, the objection of the ineffectiveness of the remedy to fullfill the security aims, already raised towards the NSA’s acquisition of the online metadata, could apply also to the PNR.

State of Terror vs. State of Law

After having highlighted the ongoing legal framework, let’s focus on the “State of Terror” on the one side, and the “State of Law” on the other: what they want and how they intend to achieve it.

a) The State of Terror wants to spread chilling fear and make people feel alone and without protection by the State of Law. In this situation of weakness, citizens are ready to surrender their freedom in return to the promise of security, which however no Government could ever completely ensure. To sum up, terrorism has proven to have well understood the lesson of divide et impera.

b) The State of Law should respond by educating its community to the values of legality, tolerance and solidarity. Its duty, in times of fear, is an ethical rather than a police one; it has to make the people leave their isolation and facilitate their social and political inclusion. This action requires concrete actions by political decision-makers.

To the fear, which is the first result of terrorism, the State has to respond with the wisdom of a legislator, which should not act under the pressure of understandable emotional feelings. Any measures have to comply with the principles ofproportionality and precaution, otherwise not only they risk to be erased by the European or national Supreme Courts but they will prove to be meaningless. The recent episodes are evidence that all-encompassing controls such as the online data collection of the real and virtual movements of terrorists have not been able to prevent their criminal actions: controlling everyone is equal to controlling no one.

In a long-time perspective, the European Parliament should make use of its competence from article 83 TFUE to give, along with the Council, a common definition of the crime of terrorism and enact serious, quick and effective measures. This is permitted by article 83; and it is very much to be regretted that this competence conferred on the European Parliament has not been exercised so far.

Last but not least, the State of Law should take cultural action aiming to include heterogeneous people while respecting their diversities. By contrast, the melting-pot method followed so far, that tried to uniform the different ideologies, failed because of the lack of a common values.

The State of Law has not to use the usual categories of the prevalence of Right over Wrong, West over Islam; it should rather develop the cohabitation of the opposites by sharing what we Europeans are still denying to the foreign people: social rights. A State of Law, which shows itself severe in the rules but generous in the co-division of welfare, will be able to compete with the State of Terror. The latter recruits its followers among the desperates, those who feel to be abandoned by the hosting State.

In the light of the above foreigners could choose between a proposal of violence and isolation, made by the State of Terror, and one of cohabitation and solidarity, made by a new European State of Law.

Dieser Text steht unter der Lizenz CC BY NC ND

(http://creativecommons.org/licenses/by-nc-nd/4.0/legalcode)

Zitiervorschlag: De Minico, Giovanna: A Tale of Two States: Rule of Law in the Age of Terrorism, VerfBlog, 2015/1/24, http://www.verfassungsblog.de/tale-two-states-rule-law-age-terrorism/

Drucken/PDF

The US Senate reveals the truth on renditions and torture, now it’s Europe’s turn.

NB Translated by Yasha Maccanico from an original italian version published on Europeanrights internet site.

by Armando Spataro[1]

On 9 December 2014, as had been announced the day before by Josh Earnest, the White House spokesman, the US Senate released a report of around 500 pages that officially acknowledged all sorts of torture (including water-boarding) and the practice of extraordinary renditions, enacted by the CIA for around a decade within the framework of an unacceptable strategy to fight international terrorism. Moreover, the report consists of a summarised review of an even wider study which is around 6,700 pages long, the rest of which will remain ‘classified’, as is said in jargon, and hence secret. The work by the Senate’s Intelligence Committee monitoring the secret services, on which the report is based, lasted for around five years and included analysis of around 6 million documents.

Thus, practically the whole world had official confirmation of what was already known to an extent and which, according to several commentators, constituted a practice enacted since the years that immediately preceded the 11 September [attacks], when the CIA was headed by George Tenet (from 1997 to 2004), and up until 2009 (hence, also at the time when Tenet’s role was assumed first by Porter Gross and then by Michael Hayden). In any case, these were methods developed with certainty – according to the report – after 11 September. Yet, the truly innovative element did not consist in this practice being revealed, but in its clear and unequivocal condemnation by the United States Senate.

The president of the Senate’s Intelligence Committee, the California Democrat Dianne Feinstein, who had already reported the violation of the computers of the Committee she presided over by the CIA[2] in March 2014, insisted for the immediate publication of this dossier. The senator, who overcame internal resistance even within her party by those who opposed the report’s publication, declared: “We have to divulge it because whoever reads it will act in order for it never to happen again”. The position taken by President Obama was no different, as he stated: “We were not worthy of our values… Torture has not even contributed to making us safer against terrorism. I will continue to use my presidential authority to guarantee that we will never use those methods again”[3]. Brutal and inefficient methods, whose only consequences were summed up by Harry Raid, leader of the outgoing Democratic majority in the Senate, in just a few words:“All of this has just muddied us”.

But the top echelons of the CIA immediately stated that they had done what was asked of them, assuring that everything was lawful.

Hence, it is worth reconstructing the route along which, at a certain point, governments, including European ones, political leaders and many jurists came to claim that acts of torture and the kidnapping of suspected terrorists had a juridical legitimation and, therefore, could be practised.

It all arises from an abstruse juridical theorisation, that of the war on terror, whereby war must be met with war, also because it is a way of producing democracy, so much so that “after the bombing of Falluja, the inhabitants of the destroyed city were happier and voted in great numbers”[4]. It was a theory that was drawn up in the wake of 11 September and had quickly become so popular as to be mentioned using an acronym: “W.o.T.”

In essence, acts of so-called international terrorism supposedly constitute acts of war that may be countered with similar techniques among which kidnappings and torture are included. Of course, it is true that acts of terrorism may also be carried out in times and zones of war, but it is likewise evident that this does not justify that kind of response in any way. In fact, everyone, and not just jurists, knows that in war situations the law for armed conflict situations is applicable as it is laid out in the Geneva Convention, its additional protocols and its further, more general purposes that are found in humanitarian law.

However, within the frame of the WoT principles become flexible, “grey areas” in which rights exist in a limited form become admissible, where any rule subsides or rules are often violated, starting from, for example, the very creation of the category of enemy combatants, that is, of illegal enemy combatants which, according to the view of those who created it, enables terrorist suspects who are “captured” in any part of the world to be denied their fundamental rights.

We owe the creation of this monstruous juridical category to John Woo from the US Department of Justice’s Legal Advice Office, the author of a 42-page memorandum in which Al Qaeda and the entire Taleban regime were included among the illegal enemy combatants, to whom the Geneva Conventions would not be applied.[5]

Moreover, John Yoo later complained (in 2008) in some press articles that the unveiling of his role as counsellor-strategist exposed him to the risk of reprisals, whereas he now claims, with renewed pride and following the publication of the Feinstein report, the authorship of that memorandum. Yoo recently published the book “Point Attack”, in which he redevelops that “emergency law” which was decisive – in his view – after 11 September[6].

Fears that were somewhat similar to those expressed by Woo prior to his more recent coming out, had been voiced by Matthew Waxman, professor at the Columbia Law School and a high ranking official in the staff of the US State Department between 2005 and 2007, who complained about[7] the worldwide release of the photographs that documented the inhumane treatment inflicted upon prisoners in Abu Ghraib and Guantánamo: «What image are we giving of the fight against terrorism?», he commented.

In reality, using the words of Antonio Cassese, this system constitutes a “juridical limbo”, which is enriched by ad hoc clauses and provisions directed at further legitimating it. Continue reading “The US Senate reveals the truth on renditions and torture, now it’s Europe’s turn.”

D. KORFF : The rule of law on the Internet and in the wider digital world

NB This is the executive summary of an issue paper prepared by Professor Douwe Korff, Visiting Fellow, Yale University (Information Society Project), and Oxford Martin Associate, Oxford Martin School, University of Oxford, UK for the Council of Europe Commissioner for fundamental rights. (Douwe Korff is also member of FREE Group)

FULL DOCUMENT ACCESSIBLE HERE

Executive summary

This issue paper addresses a pressing question: how can we ensure that the rule of law is established and maintained on the Internet and in the wider digital world? Section 1 describes the range of online activities and the threats to this environment; section 2 discusses the emerging “Internet governance” principles, and notes the special control exercised over the digital world by the USA (and the UK, in respect of Europe), which could lead to fragmentation of the Internet in response. Section 3 sketches the international standards of the rule of law, and some problems in the application of law in this new environment. Section 4 looks in some more detail at the main issues emerging from the earlier sections – freedom of expression, privatised law enforcement, data protection, cybercrime and national security – and discusses the delicate balances that need to be struck. The Council of Europe Commissioner for Human Rights has formulated a number of recommendations on the basis of the issues raised by this issue paper; these are set out after this executive summary.

A new environment for human activities

We live in a global digital environment that has created new means for local, regional and global activities, including new types of political activism, cultural exchanges and the exercise of human rights. These activities are not virtual in the sense of “not truly real”. On the contrary, they are an essential part of real citizens’ lives. Restrictions on access to the Internet and digital media, and attempts to monitor our online activities or e-communications, interfere with our fundamental rights to freedom of expression and information, freedom of association, privacy and private life (and possibly other rights such as freedom of religion and belief, or the right to a fair trial).

The new global digital environment of course also creates a new space for unlawful behaviour: for the dissemination of hate speech or child pornography, incitement to violence, breaches of copyright (“piracy”), fraud, identity theft, money laundering and attacks on the e-communications infrastructure itself through malware (such as Trojans and worms) or “denial of service” attacks. Cybercrime and cybersecurity have become major concerns. These threats are increasingly transnational, and there is a broad international consensus on the need to deal with cybercrime, cybersecurity and terrorism, but there is much less agreement on specifics – or even what constitutes a threat.

Four issues stand out. First, state actions aiming to counter cybercrime, threats to cybersecurity and threats to national security are increasingly intertwined; the boundaries between such activities are blurred, and the institutions and agencies dealing with them work more closely together. Second, states are now co-ordinating their actions in all these regards. Third, the work of national security and intelligence agencies increasingly depends on monitoring the activities of individuals and groups in the digital environment. Fourth, instead of ex post facto law enforcement, the emphasis is now on intelligence and prevention, with law-enforcement agencies using techniques – and technologies – previously reserved for secret services.

The nature of the digital environment Dangerous data

In an age of “Big Data” (when data on our actions are shared and/or exploited in aggregate form) and the “Internet of Things” (when more and more physical objects – things – are communicating over the Internet), it is becoming difficult to ensure true anonymisation: the more data are available, the easier it becomes to identify a person. Moreover, the mining of Big Data, in ever more sophisticated ways, leads to the creation of profiles. Although these profiles are used to spot rare phenomena (e.g. to find a terrorist in a large set of data, such as airlines’ passenger name records), they are unreliable and can unwittingly lead to discrimination on grounds of race, gender, religion or nationality. These profiles are constituted in such complex ways that the decisions based on them can be effectively unchallengeable: even those implementing the decisions do not fully comprehend the underlying reasoning. The digital environment can by its very nature erode privacy and other fundamental rights, and undermine accountable decision making. There is enormous potential for undermining the rule of law – by weakening or destroying privacy rights, restricting freedom of communication or freedom of association – and for arbitrary interference.

Global and private, but not in the sky

Because of the open nature of the Internet (which is its greatest strength), any end point on the network can communicate with virtually any other end point, following whatever route is calculated as being most efficient, the data flowing through all sorts of switches, routers and cables: the Internet’s physical infrastructure. The electronic communications system is transnational, indeed global, by its very nature; and its infrastructure is physical and located in real places, in spite of talk of a Cloud. At the moment, many of these physical components are in the USA and many of them are managed and controlled by private entities, not by governmental ones.

The main infrastructure for the Internet consists of high-capacity fibre-optic cables running under the world’s oceans and seas, and associated land-based cables and routers. The most important cables for Europe are those that run from continental Europe to the UK, and from there under the Atlantic to the USA. Given the dominance of the Internet and of the Cloud by US companies, these cables carry a large proportion of all Internet traffic and Internet-based communication data, including almost all data to and from Europe.

Who is in control? Internet governance

Important Internet governance principles have been put forward, by the Council of Europe and others, that stress the need to apply public international law and international human rights law equally online and offline, and to respect the rule of law and democracy on the Internet. These principles recognise and promote the multiple stakeholders in Internet governance and urge all public and private actors to uphold human rights in all their operations and activities, including the design of new technologies, services and applications. And they call on states to respect the sovereignty of other nations, and to refrain from actions that would harm persons or entities outside their territorial jurisdiction.

However, these principles still remain largely declaratory and aspirational: there is still a deficiency in actual Internet governance arrangements that can be relied on to ensure the application of these principles in practice. Also, Internet governance must take account of the fact that – partly because of its corporate dominance, and partly because of historical arrangements – the USA has more control over the Internet than any other state (or even all other states combined). Together with its close partner, the UK, it has access to most of the Internet infrastructure.

The former US National Security Agency contractor Edward Snowden has revealed that the USA and the UK are using this control and access to conduct mass surveillance of the Internet and of global electronic communications systems and social networks. There are fears that states may respond to the Snowden revelations by fragmentation of the Internet, with countries or regions insisting that their data are routed solely through local routers and cables, and stored in local clouds. This risks destroying the Internet as we know it, by creating national barriers to a global network. Unless the USA improves compliance with international human rights standards in its activities that affect the Internet and global communication systems, the movement towards such a truncated Internet will be difficult to stop.

Private-sector control

Much of the infrastructure of the Internet and the wider digital environment is in the hands of private entities, many of them US corporations. This is problematic because companies are not directly bound by international human rights law – that directly applies only to states and governments – and it is more difficult to obtain redress against such companies.

In addition, private entities are subject to the national laws of the countries where they are established or active – and those laws do not always conform to international law or international human rights standards: they may impose restrictions on activities on the Internet (typically, on freedom of expression) that violate international human rights law; or they may impose or allow interference, such as surveillance of Internet activity or e-communications, that is contrary to international human rights law; and such actions may be applied extraterritorially, in violation of the sovereignty of other states.

The application of national law to the activities of private entities controlling (significant parts of) the digital world is extremely complex and delicate. Of course states have a right, and indeed a duty, to counter criminal activity that uses the Internet or e-communication systems. In this, they naturally enlist the help of relevant private actors. Responsible companies will also want to avoid their products and services being used for criminal purposes. Nonetheless, in such circumstances, states should in their actions both fully comply with their international human rights commitments and fully respect the sovereignty of other states. In particular, states should not circumvent constitutional or international law obligations by encouraging restrictions on human rights through “voluntary” actions by intermediaries; and companies, too, should respect the human rights of individuals.

The rule of law in the digital environment

The rule of law

The rule of law is a principle of governance by which all persons, institutions and entities, public and private, including the state itself, are accountable to laws that are publicly promulgated, equally enforced, independently adjudicated and consistent with international human rights norms and standards. It entails adherence to the principles of supremacy of law, equality before the law, accountability to the law, fairness in applying the law, separation of powers, participation in decision making, legal certainty, avoidance of arbitrariness and procedural and legal transparency.

The basic “rule of law” tests developed by the European Court of Human Rights

The European Court of Human Rights has developed elaborate “rule of law” tests in its case law, and these have also been adopted by other international human rights bodies. To pass these tests, all restrictions on fundamental rights must be based on clear, precise, accessible and foreseeable legal rules, and must serve clearly legitimate aims; they must be “necessary” and “proportionate” to the relevant legitimate aim (within a certain “margin of appreciation”); and there must be an “effective [preferably judicial] remedy” against alleged violations of these requirements.

“Everyone”, without discrimination

It is one of the hallmarks of international human rights law since 1945, and one of its greatest achievements, that human rights must be accorded to “everyone”, to all human beings: they are humans’ rights, not just citizens’ rights. Thus, subject to very limited exceptions, all laws, of all states, affecting or interfering with human rights must be applied to “everyone”, without discrimination “of any kind”, including discrimination on grounds of residence or nationality.

Because of the unique place of the USA and US companies in the functioning of the Internet, the constitutional and corporate legal framework in the USA is of particular importance. However, in contrast to the above-mentioned principle of international human rights law, many of the human rights guarantees in the US Constitution and in various US laws relating to the digital environment apply only to US citizens and non-US citizens residing in the USA (“US persons”). Only “US persons” benefit from the First Amendment, covering free speech and freedom of association; the Fourth Amendment, protecting US citizens from “unreasonable searches”; and most of the (limited) protections against excessive surveillance provided by the main pieces of legislation on national security and intelligence (FISA Amendment and Patriot Acts).

“Within [a contracting state’s] [territory and] jurisdiction”

The duty of states to comply with their responsibilities under international human rights law also when acting extraterritorially The main international human rights treaties, including the International Covenant on Civil and Political Rights (ICCPR) and the European Convention on Human Rights (ECHR), oblige states to “ensure” or “secure” the human rights laid down in those treaties to “everyone subject to their jurisdiction” (or “within their jurisdiction”). This requirement is increasingly given a functional rather than a territorial meaning – as has recently been reaffirmed by the Human Rights Committee and the European Court of Human Rights. In other words, each state must ensure or secure these rights to anyone under its physical control or whose rights are affected by its (or its agencies’) actions.

Thus, states must comply with their international human rights obligations in any action they take that may affect the human rights of individuals – even when they act extraterritorially, or take actions that have extraterritorial effect. This obligation has specific consequences for data – what the digital world is made of – and especially for personal data, as is recognised by European data-protection law, which protects all individuals whose data are processed by European controllers, irrespective of their place of residence, nationality or other status. However, the USA formally rejects this application of international human rights law. In view of the predominance of the USA (and of US corporations that are subject to that country’s jurisdiction) in the digital environment, this poses a serious threat to the rule of law in that new environment. Continue reading “D. KORFF : The rule of law on the Internet and in the wider digital world”

H.LABAYLE, R.MEHDI : Terrorisme : le jour d’après

Original Published HERE

<strong>par Henri Labayle et Rostane Mehdi</strong>

(ENGLISH ABSTRACT by C.Perinaud:
The day after
Beyond disgust and emotion, the tragic events that which took place in Paris on 7 January 2014 lead us to think about the place of law in our contemporary societies. One can only be shocked by the inability of the latest to tackle the increasing number of murders driven by fanatism and religious obscurantism.
What strikes in the attack of CharlieHebdo is the position of the victims; journalists, satirical cartoonists and the policemen who were in charge of protecting them. Yet, according to the ECtHR formula the murder aimed at killing the “public watchdog of the democracy” . Who will protect us from hated and intolerant speech tomorrow?
Yesterday
The events that which arose in Paris are unfortunately only exceptional because of their extent. For 25 years, Salman Rushdie has been frightened by those who condemned him.
For almost 10 years, Danish cartoonists from the Jyllands-Posten have been placed under the police protection.
We need to think about it. If we need to talk about a “civilisation war”, it can’t be a religious one or a mere irreducible opposition between Occident and Islam. If there is a war, it can only be a fight for the Rule of law.
Tomorrow
The answer to those events is the criminal law so as to reduce the killers to what they are and what they have never ceased to be: criminals. To read things from another prospective would be to acknowledge acknowledging that the fight they intend to conduct can be qualified as such. But it cannot because it is only a crime.
Yet, the collapse of the Rule of law is obvious as it is unable to provide for an efficient answer to the terrorist threat. What strikes the observer of the area of Freedom Security and Justice is indeed the growing number of those criminal actions and the difficulties faced by democratic societies to overcome them.)

TEXT OF THE ORIGINAL POST

Les assassinats commis au journal Charlie Hebdo ne nous sont pas étrangers. Ni le citoyen, ni le juriste, ni l’observateur des développements de l’Espace de liberté, sécurité et de justice ne peuvent y être indifférents. Ils nous invitent, par delà le dégoût et l’émotion, à réfléchir aux grands équilibres de nos sociétés contemporaines et à la place que le droit peut y tenir.

On ne peut qu’être surpris et anéantis devant le spectacle, au XXI° siècle, d’une société occidentale incapable d’interrompre la chronique inexorable de meurtres annoncés par le fanatisme et l’obscurantisme religieux, chaînon supplémentaire à l’abomination quotidienne qui ensanglante le Proche Orient.

Ce qui frappe ici d’abord et nous touche au plus profond, sont les victimes. Journalistes, caricaturistes, policiers les protégeant sont tombés sous les balles de criminels ayant juré leur perte en raison de caricatures jugées offensantes pour la religion musulmane. Aussi, par delà les débats de principe relatifs à la liberté de la presse et à la liberté d’opinion, il est bon, peut-être de rappeler aujourd’hui ce qu’en dit la Cour européenne des droits de l’Homme, dans une formule magnifique : la presse est le « chien de garde de la démocratie » (CEDH, 25 juin 1992, Thorgeir Thorgeirson c. Islande, req. n° 13778/88).

Le meurtre de la rédaction de Charlie Hebdo n’est autre que celui des chiens de garde de nos démocraties. Il nous renvoie à cette interrogation simple : qui nous protégera, demain, des discours de haine et d’intolérance qui ont armé le bras des assassins ?

A la condamnation de ceux là, la Cour européenne des droits de l’Homme participe aussi lorsqu’elle affirme haut et clair que « la tolérance et le respect de l’égale dignité de tous les êtres humains constituent le fondement d’une société démocratique et pluraliste. Il en résulte qu’en principe on peut juger nécessaire, dans les sociétés démocratiques, de sanctionner voire de prévenir toutes les formes d’expression qui propagent, incitent à, promeuvent ou justifient la haine fondée sur l’intolérance (y compris l’intolérance religieuse), si l’on veille à ce que les « formalités », « conditions », « restrictions » ou « sanctions » imposées soient proportionnées au but légitime poursuivi » (CEDH, 2 juillet 2006, Erbakan c. Turquie, req. 59405/00).

C’est bien ainsi qu’il nous faut percevoir les évènements parisiens d’hier, qui ne sont exceptionnels malheureusement que par leur ampleur.

Hier

Voici près d’un quart de siècle que Salman Rushdie est poursuivi par la vindicte imbécile de ceux qui l’avaient condamné, que son traducteur japonais puis son éditeur ont été victimes de leur proximité avec l’auteur des Versets sataniques. Voici près de dix ans que les dessinateurs danois du Jyllands-Posten, pour des faits exactement similaires à ceux reprochés à Charlie Hebdo, sont placés sous protection policière.

Y réfléchir est nécessaire. A l’instar de l’historicisme, l’approche consistant à faire de la culture le fondement exclusif du droit mène peu ou prou au relativisme. Or, la ligne suivie par les islamistes est bien celle-là : dans le domaine des droits de l’homme les particularités spirituelles ou culturelles y légitiment, en le systématisant, le rejet de principes généralement considérés comme universels. Dans cette perspective, les droits fondamentaux plongent leurs racines « dans la conviction que Dieu, et Dieu seul, est l’Auteur de la Loi et Source de tous les droits de l’homme » (Introduction, al. 2, Déclaration islamique universelle des droits de l’homme).

Se dessinent ainsi les contours d’un univers dans lequel l’homme n’est pas détenteur de prérogatives inhérentes à sa nature mais redevable à une volonté divine dont tout procède. La prégnance des préceptes religieux est ici absolue, car ils étalonnent (en réalité, ils vident de leur substance) tous les droits et libertés énoncés. Ainsi, même lorsqu’il est expressément reconnu, le droit à la liberté religieuse et donc par extension les droits qui en dérivent ne peuvent s’exercer que dans les limites imposées par la Loi de Dieu (Article 13 de la DIUDH qui doit être lu à la lumière des dispositions de l’article 2). Pour les islamistes, l’attribution de droits s’effectue exclusivement par référence à une appartenance religieuse et selon un raisonnement substantiellement discriminatoire. En effet, toute cette construction repose sur l’idée centrale que les hommes devront être distingués sur la base de leur religion et soumis de ce fait même à des régimes que l’on sait différenciés.

Cette démarche vise à rompre avec un unanimisme factice (du moins au yeux des islamistes), le but recherché étant d’assurer l’intégrité d’un système de valeurs définitivement inconciliables avec les prescriptions universelles notamment en ce qu’elles concernent les droits de la femme, la liberté de conscience ou les peines pénales cruelles et inhumaines. Elle revient à dénier toute pertinence au prolongement moderne le plus remarquable de ces philosophies humanistes en vertu desquelles le respect des droits de l’homme ne résulte que des exigences de la raison humaine.

Par delà les discours convenus et les tentatives de récupération politique auxquels, déjà, la société médiatique se prête, une réflexion s’impose alors quant à la « guerre » de civilisation à laquelle Régis Debray se référait aujourd’hui, sur France Culture. Elle est tout sauf une guerre de religions comme d’aucuns s’empressent de nous le suggérer, un affrontement entre l’Occident et l’Islam, une opposition de nature complaisamment mise en scène par des amateurs de lumière médiatique.

S’il faut employer un vocabulaire belliciste, mieux vaut être conscient de sa portée tant l’utilisation de ces postures a conduit loin, trop loin, outre-Atlantique comme la publication expurgée d’un rapport de la CIA par le Sénat américain le mois dernier en atteste. Si guerre il y a, elle est tout simplement une guerre entre l’Etat de droit et l’Etat de non-droit.

Demain

La réponse par le droit est donc la seule qui vaille, et par un droit pénal ramenant les coupables à ce qu’ils sont et non jamais cessé d’être : des criminels. Parler autrement serait reconnaître que le combat qu’ils prétendent mener en est un. Il n’est que crime. Il est d’ailleurs vraisemblable que les brillantes analyses visant à leur prêter une stratégie réfléchie et le projet d’opposer les communautés n’est qu’illusion. Animés de leur volonté de vengeance et sûrs de leur bon droit, ils n’ont sans doute voulu qu’une seule chose : punir et tuer. Qu’en revanche, en amont, le conditionnement des esprits et, en aval, la réalisation du crime aient nécessité l’appui d’une organisation va de soi.
Or la faillite du droit est ici manifeste.
Empilant les législations d’exception les unes sur les autres, sans grands états d’âme du législateur, l’Etat de droit n’apporte aujourd’hui aucune réponse véritablement efficace à la menace, la criminalité terroriste empruntant des formes et des calendriers auxquels l’action policière peine à s’adapter, faute de moyens parfois et parce que les limites du droit l’imposent, souvent.
En l’espèce, la rapidité de la réponse policière ne masquera pas longtemps qu’elle n’est que réaction, qui plus est à propos de Pieds Nickelés de l’horreur oubliant leur carte d’identité dans leur véhicule. Là encore les polémiques habituelles s’en nourriront. Pourtant, en démocratie, c’est ainsi que la loi le commande et c’est bien là que les difficultés se multiplient, en France et en Europe.
Car ce qui frappe, dans l’observation de l’Espace de liberté, sécurité et justice, est bien la généralisation de cette forme d’action criminelle et la difficulté des Etats démocratiques à y répondre. Rapidement classée dans nos esprits au rang des faits divers, la tuerie aveugle du Musée juif de Bruxelles doit davantage l’arrestation de son auteur au hasard qu’à l’efficacité de la loi pénale et ce, après que l’affaire Merah ait pourtant frappé les esprits et provoqué des remises en question.
C’est dire qu’agir en amont est essentiel en la matière, ce dont l’Union européenne a pris conscience au cours de l’année 2014, suivant en cela l’impulsion du Coordinateur de la lutte anti-terroriste. Outre l’identification et le suivi des individus concernés, le stockage des données les concernant, la prévention et la lutte contre la radicalisation terroriste sont ainsi devenus des priorités, en lien avec le dossier des djihadistes européens partant combattre au Proche Orient. Merah, Nemmouche et peut être l’un des suspects du carnage de Charlie Hebdo n’en faisaient-ils pas partie ?
Ainsi, la guerre des idées est venue progressivement s’imposer à l’esprit d’une société qui était largement restée indifférente à cette dimension particulière.
Car c’est vraisemblablement là qu’est le nœud du problème.
Dans une société européenne largement sécularisée où parfois, comme en France, la laïcité est érigée en principe commandant la neutralité de la chose publique, l’irruption du fait religieux n’a pas été perçue à sa juste mesure, en particulier mais pas seulement à propos de l’Islam.
Religion d’implantation relativement nouvelle en France, sinon en Europe, son insertion et son adaptation à la société occidentale n’ont fait l’objet d’aucune attention particulière, d’aucun accompagnement, d’aucune pédagogie réciproque.

Permettant que soit mis l’accent sur ce qui singularise et sépare et non sur ce qui rassemble le corps social, la démocratie libérale a ainsi autorisé sans s’en rendre compte que la place publique devienne le siège de débats récurrents, de la burka aux menus des cantines en passant par les prières de rue, dont les solutions en forme de compromis ont donné à chacun le sentiment qu’il en était le perdant. Confessionnalisation des principes et communautarisation des démarches n’ont sans doute pas suscité l’attention méritée, fait mesurer les risques encourus.

A cette incapacité à dégager des lignes claires de vie en commun s’est ajoutée le spectacle d’un théâtre extérieur où la multiplication des interventions occidentales au Proche Orient puis en Afrique subsaharienne a fini par donner l’impression d’une planification organisée.
L’irrationnel et le fanatisme ont alors enclenché le processus de victimisation et de vengeance. Il conduit à la journée d’hier tandis que l’instrumentalisation de cette violence, de part et d’autre, ouvre le risque de voir se creuser les fossés.

Edgar Morin l’écrit très bien dans le Monde de ce jour : « la pensée réductrice triomphe. Non seulement les fanatiques meurtriers croient combattre les croisés et leurs alliés les juifs (que les croisés massacraient), mais les islamophobes réduisent l’arabe à sa supposée croyance, l’islam, réduisent l’islamique en islamiste, l’islamiste en intégriste, l’intégriste en terroriste».

Lutter contre cette réduction demande donc de changer de logiciel. N’est pas Saint Just qui veut pour réclamer « pas de liberté pour les ennemis de la liberté » mais là est bien l’interrogation qui va dominer le débat politique dans les jours qui viennent.

S.PEERS : (AFTER CHARLIE HEBDO) DOES THE EU NEED MORE ANTI-TERRORIST LEGISLATION?

Original published HERE

By Professor Steve PEERS

Thursday, 8 January 2015

In the wake of the appalling attacks in Paris two days ago, it only took 24 hours for the EU Commission to state that it would propose a new wave of EU anti-terrorist measures in a month’s time. It’s not yet known what the content of this law will be; but the very idea of new legislation is a profound mistake.

Of course, it was right for the EU institutions to express sympathy for the victims of the attack, and solidarity as regards defence of free speech. Equally, it would not be problematic to use existing EU anti-terrorism laws if necessary, in order (for instance) to surrender the suspects in this crime on the basis of a European Arrest Warrant (EAW), in the event that they fled to another Member State.

The question is whether the EU needs more such laws.

For the EU has already reacted to prior terrorism offences, first as regards 9/11 and then to the atrocities in Madrid and London in 2004 and 2005.

The result is a huge body of anti-terrorism law, catalogued here by the SECILE project. This comprises not only measures specifically concerning terrorism (such as substantive criminal law measures, adopted in 2002 and amended in 2008), but many other measures which make it easier to cooperate as regards terrorism as well as other criminal offences, such as the EAW, the laws on exchange of police information and transmission of evidence across borders, and so on.

Moreover, there are proposals already under discussion which would apply to terrorism issues (among others), such as a new law on Europol, the EU’s police intelligence agency (discussed here), and proposed EU legislation on the transfer of airlines’ passenger name records (PNR).

So what new laws is the Commission likely to propose? It may suggest a new version of the data retention Directive, the previous version of which was struck down by the Court of Justice of the European Union (CJEU) last spring, in the Digital Rights judgment (discussed here). Other ideas under discussion, according to leaked documents (see here and here) are new laws strengthening mandatory checks at borders .

Are any of these laws really necessary? Member States can already adopt laws on retention of communications data, pursuant to the EU’s e-privacy directive.

As the European Parliament’s legal service has confirmed (see its advice here), if Member States adopt such measures, they will be subject to the constraints of the Digital Rights judgment, which bans mass surveillance carried out in the absence of safeguards to protect privacy. Equally, Member States are free to establish their own PNR systems, in the absence of any EU-wide measure (besides EU treaties with the USA, Canada and Australia on PNR). The question of whether mass surveillance is as such compatible with human rights has already been sent to the CJEU by the European Parliament, which has asked the Court to rule on this issue in the context of the EU/Canada PNR treaty (see discussion here).

It would be possible to adopt new laws calling for systematic border checks in specific cases. In practice, this would likely mean checks on Muslims who are returning after travel to places like Syria. It is questionable whether asking detailed further questions at the external borders will, by itself, really do a lot to prevent terrorism. After all, in the Paris attacks, it unfortunately proved impossible to prevent an apparent terrorist attack despite extensive anti-terrorist legislation on the books, and bodyguards protecting the staff of a known terrorist target.

There’s also a question of principle here.

The Paris attacks were directed at free speech: the foundation of liberal democracy. Of course efforts should be stepped up to prevent such attacks from happening again; but existing laws allow for targeted intelligence gathering and sharing already, The Commission’s immediate response reeks of panic. And the direct attack on fundamental democratic principles this week in Paris is precisely the wrong context to consider that new legislation curtailing other fundamental freedoms is limited.

S.PEERS Childhood’s End: EU criminal law in 2014

Original Published HERE Monday, 29 December 2014

With the elections to the European Parliament, the installation of a new European Commission, and a number of important legislative and case-law developments, 2014 was an important year for the European Union. This is the first in a series of blog posts reviewing the year in selected fields of EU law.

The most significant change to EU criminal law came on December 1^,when the five-year transitional period relating to EU criminal law measures adopted before the entry into force of the Lisbon Treaty (‘pre-Lisbon EU criminal law measures’, also known in practice as the ‘third pillar’) came to an end. From this date on, pre-Lisbon EU criminal law measures are subject to the normal rules of EU law (except that they maintain their previous limited legal effect, in particular the lack of direct effect). More specifically, this change (discussed generally here) has three main impacts.

Firstly, the UK was entitled to opt out of all pre-Lisbon EU criminal law measures, and then apply to opt back in to some of them again. The UK indeed exercised these possibilities, opting back in to 35 such measures as of 1 December 2014 (see discussion of the details here), following an unnecessarily convoluted process in the House of Commons (discussed here). In a nutshell, since the UK has opted back into a large majority of the pre-Lisbon measures which have any significant importance, the whole process has had barely reduced the UK’s actual degree of participation in EU criminal law.

Secondly, the end of the transitional period means that the EU Commission can now bring infringement actions against Member States that failed to correctly implement pre-Lisbon EU criminal law measures – or that failed to implement such measures at all. The relevance of this is obvious in light of the Commission reports issued this year, regarding: legislation on the transfer of prisoners, probation and parole and supervision orders (discussed here); hate crime and Holocaust denial (discussed here); and conflicts of jurisdiction and the recognition of prior convictions (discussed here).

Thirdly, all courts in all Member States can now send references to the CJEU on the interpretation pre-Lisbon EU criminal law. For the EU as a whole, the impact of this change will probably be limited in practice, because (a) two-thirds of Member States allowed such references anyway, and (b) there were no such limits regarding EU criminal law adopted after the entry into force of the Lisbon Treaty. On the former point, the CJEU decided two cases this spring on the EU’s double jeopardy rules (discussed here), in which it finally developed the relationship between those rules and the double jeopardy provisions of the ECHR and the EU Charter of Fundamental Rights. A final reference to the CJEU on the basis of the old rules, sent just a month before the end of the transitional period (Kossowski), now asks the Court to clarify whether Member States’ derogations from the Schengen rules violate the EU Charter.

On the second point, the first reference from national courts on post-Lisbon EU criminal law was referred this year: the Covaci case, on the Directive on interpretation and translation in criminal law proceedings and the Directive on the ‘letter of rights’. So far, there is no sign of the predicted avalanche of cases on EU suspects’ rights legislation (the deadline to apply the letter of rights Directive passed in June). Of course, there could still be an increase of such cases in future, perhaps after the 2016 deadline to apply the third suspects’ rights Directive (on access to a lawyer). And in the meantime, Member States must apply the victims’ rights Directive towards the end of 2015. Hopefully the CJEU’s case law on that measure will be more convincing than its ruling earlier this year (criticised here) on the scope of the Directive on compensation for crime victims.

Another important CJEU judgment in the criminal law field this year (discussed here) ruled that policing information measure actually fell within the scope of EU transport law. The immediate impact of this judgment was a rush to adopt replacement legislation (the text of which is already agreed), which will apply to all Member States (the UK, Ireland and Denmark had opted out of the prior measure). More broadly, the judgment shows that the CJEU is not inclined to interpret the EU’s criminal law powers broadly – at least as compared to the EU’s other powers.

The end of the transitional period did not lead to a general review of pre-Lisbon EU criminal law measures, with the Commission proposing only a very limited repeal of some obsolete measures (I’ll blog on these proposals in the new year). In particular, the new Justice Commissioner appears to have no significant agenda to suggest criminal law proposals, whether to amend prior measures or to adopt new ones (for an argument as to what the Commission should do, see here).

However, some of the pre-Lisbon criminal law measures have been amended or replaced, or will be amended or replaced by proposed legislation now under discussion. In particular, during 2014, the EU adopted legislation concerning: the European Investigation Order (discussed here); the counterfeiting of the euro (discussed here); the confiscation of criminal assets; and the European Police College (moving its seat from the UK to Hungary). The EU also adopted legislation on criminal sanctions for market abuse (discussed here).

There are also proposals under discussion to replace pre-Lisbon EU criminal law measures concerning: fraud against the EU (see the state of play here); the police agency, Europol (see discussion of negotiations here); the prosecutors’ agency, Eurojust (there was a partial agreement on this proposal); and data protection in criminal law cases (see the state of play here). The latter issue is increasingly important, as indicated by the related CJEU judgment invalidating the data retention directive (discussed here), which gave rise to questions as to whether Member States could adopt or retain their own data retention laws (on this point, see generally here, and here as regards the UK in particular).

In fact, the CJEU will soon be ruling on data protection and criminal law issues as such, since the European Parliament has asked it to rule on the validity of the EU/Canada draft treaty on passenger name records (see discussion here). The pending Europe v Facebookcase (discussed here) raises questions about the impact of the Snowden revelations upon the EU and US arrangements on data protection. In the meantime, the proposed Directiveon passenger name records still remains on ice (having been put there by the European Parliament), with EU leaders’ attempt to set a deadline to adopt this proposal by the end of 2014 proving futile.

Other proposals are also under discussion: a more general overhaul of the European Police College; the creation of a European Public Prosecutors’ Office (see the state of play here); and the adoption of three more suspects’ rights measures, concerning child suspects (agreed by the Council), presumption of innocence (also agreed by the Council) and legal aid (see the state of play here). However, the Commission’s proposal for new rules relating to the EU’s anti-fraud body, OLAF, soon melted in the heat of Council opposition.

Conclusion

Taken as a whole, the year 2014 showed how the European Parliament, the CJEU and the Commission are already playing a significant role in the development of EU criminal law. Following the final demise of the third pillar, the year 2015 is likely to see further important developments in this area, which will make the pre-Lisbon measures even less important: the adoption of new legislation on Europol, the European Police College and possibly Eurojust, as well as revised legislation on fraud against the EU budget.

There will likely be two or three further Directives on suspects’ rights and the victims’ rights Directive will begin to apply. The rules on the new European Public Prosecutors’ Office might also be agreed, and there could be significant developments in the area of data protection. Overall, the longer-term trends toward greater parliamentary and judicial control and greater focus on individual rights in this area accelerated significantly in 2014 and could well do so again next year.

The data protection regime applying to the EU inter-agency cooperation and future architecture of the EU criminal justice and law enforcement area

(*) The full study for the European Parliament LIBE Committee can be downloaded HERE

By Professor PAUL DE HERT

EXECUTIVE SUMMARY

From a data protection perspective, fragmentation is the main characteristic of the legal framework in place in the agencies in the EU criminal justice and law enforcement area .
A multitude of EU agencies operates under their own individual legal framework with little regard for harmonization , consistency or even compatibility among their personal data processing , while the basic text that would supposedly set the common standard in the field , the Data Protection Framework Decision, expressly excuses itself from assuming this role.
Each one of the EU bodies and agencies operating within the EU criminal justice and law enforcement area is until today governed by its own legal constituting text (s) that customarily address data protection issues but however does so in a piecemeal and introverted way: supervision of data protection practices is vested upon each agency’s internal mechanisms and management. This architecture, that reflects the pre-Lisbon third pillar environment, has been preserved until today, despite of the fact that in the meantime interagency cooperation has proliferated: not only have formal bilateral cooperation agreements been entered among all EU agencies but also cooperation takes place outside EU borders as well , through chartered, or unchartered, personal data exchanges with third countries and international organisations.
Adequate data protection supervision, in the sense of a single, coordinated monitoring authority, is emphatically missing from all such exchanges.

The ratification of the Treaty of Lisbon is a milestone that affected the EU criminal justice and law enforcement area in more than one way. Among others, the culmination of a standalone individual right to data protection and the involvement of the European Parliament in any decision – making in the field are crucial factors that enabled an, admittedly much needed, change. Such change came in the form of a series of Commission proposals that were released over the past couple of years and which, if implemented, will completely restructure the current EU data protection architecture in the criminal justice and law enforcement area.
The Commission proposals originate from Article 16 TFEU, which introduces a new right to data protection and requires new rules on the personal data processing by EU agencies , as well as independent monitoring, but also from Declaration 21, which allows f or “specific rules” in the field.

To this end, the Commission introduced both general and agency-specific texts.
At a general level, a Police and Criminal Justice Data Protection Directive is intended to replace the Data Protection Framework Decision. At agency-specific level, the Europol and Eurojust draft Regulations are intended to replace the respective Decisions in force today; at the same time a new Regulation is aimed at introducing the European Public Prosecutor’s Office (EPPO) while work has been promised by the Commission also on amending Regulation 45/2001.
Such law-making process entails herculean efforts by all the bodies involved in it (the Commission, the Parliament and the Council) in order to keep the overhaul of data protection rules in force today (in the EU criminal justice and law enforcement field) synchronized and coordinated .

Although none of the above legislative proposals is yet finalized (in fact, only one has reached “trilogue” stage), the Commission’s preferred data protection architecture has become by now evident: the draft Directive is to replace the Framework Decision but not to affect any agency – specific personal data processing. This task will be undertaken by Regulation 45/2001 (or its successor) and the European Data Protection Supervisor (EDPS).

This architecture is basically taken for granted for the purposes of this analysis: regardless of its merits or drawbacks, other than the Commission also the Parliament has shown no substantial objection to it.

Therefore, the interplay of the instruments involved (the Police and Criminal Justice Data Protection Directive, Regulation 45/2001 or its successor, the Europol, Eurojust and EPPO Regulations) has been attempted to be sketched in the six different scenarios that follow , each in turn assessed in terms of legal and pragmatic plausibility under the current environment:
• A “unified model” scenario, under which the Police and Criminal Justice Data Protection Directive would regulate all the EU criminal justice and law enforcement area (including therefore the EU agencies operating therein);
• A “segregated model” scenario, whereby the Police and Criminal Justice Data Protection Directive would leave EU agencies’ personal data processing outside of its scope (as is currently the situation under the Data Protection Framework Decision ) ;
• An “interim segregated model” scenario, under which the above segregated approach would only last for a few years, after which EU agencies would have to bring their personal data processing under the Police and Criminal Justice Data Protection Directive;
• An “alternative unified model” scenario, that, as originally suggested by the Commission, would use Regulation 45/2001 as a common standard – setting text for all EU agencies, whose individual constituting legal instruments would subsequently supplement and further specify its provisions;
• A scenario whereby the current architecture is preserved and consequently neither the Police and Criminal Justice Data Protection Directive nor Regulation 45/2001 (or its successor) affect in any way the agency – specific (revised) texts, and
• An, unfortunately likely for the immediate future, scenario, whereby Regulation 45/2001 is not amended in time and all of Europol, Eurojust and EPPO Regulations , when adopted, will supplement and further specify its provisions, which are outdated and unsuitable for the criminal justice and law enforcement area.

National security and secret evidence in legislation and before the courts: exploring the challenges

FULL STUDY DOWNLOADABLE HERE
Visit the European Parliament’s Studies website:

EXECUTIVE SUMMARY
This Study examines the way in which justice systems across a selection of EU Member States use and rely on intelligence information that is kept secret and not disclosed to the defendants and judicial authorities in the name of national security.
It analyses the laws and practices in place from the perspective of their multifaceted impact on the EU Charter of Fundamental Rights (in particular its provisions related to the rights of the defence and freedom of information and expression), as well as on wider ‘rule of law’ principles. The analysis is based on a comparative study of the legal regimes, interpretations by domestic and European tribunals as well as key developments and contemporary practices concerning the use of intelligence information as ‘evidence’ and the classification of information as ‘state secrets’ during trials in the name of ‘national security’ in the following seven EU Member States (EUMS): the United Kingdom, France, Germany, Spain, Italy, the Netherlands and Sweden.

The examination has highlighted a number of key research findings.

It first shows a wide variety of national legal systems and judicial practices embedded in domestic historical, political and constitutional trajectories characterising each Member State jurisdiction (see Section 1 of the Study and Annex 5 with detailed Country Fiches).
The United Kingdom and the Netherlands are the only two Member States examined with official legislation allowing for the formal use of classified intelligence information in judicial proceedings. The United Kingdom constitutes an ‘exception’ in the broader EU landscape due to the existence of the much-contested ‘Closed Material Procedures’ (CMPs) – secret court hearings where only the judge and security-cleared special advocates are given access to sensitive intelligence material. The Netherlands operates a system of ‘shielded witnesses’ in courts, allowing intelligence officials to be heard before a special examining magistrate (Sections 1.1. and 1.2 of this Study). Other EUMS analysed (Germany, Spain and Sweden) present indirect judicial practices in which certain evidence may be hidden from a party during trials under a number of conditions (Section 1.3).

Nevertheless, the Study demonstrates that secret evidence is not always legal evidence. In countries such as Germany, Italy or Spain the rights of the defence and the right to a fair trial cannot be ‘balanced’ against national security or state interests as this would directly contravene their respective constitutional frameworks (Section 1.4).

Yet, all EUMS under examination face a number of challenges as regards the difficult and often controversial declassification or disclosure of intelligence materials, which too often lacks proper independent judicial oversight and allows for a disproportionate margin of appreciation by state authorities (Section 1.5 of this Study).

Another issue resulting from the comparative investigation relates to the fuzziness and legal uncertainties inherent to the very term ‘national security’ (as evidenced in Section 1.6 and Annex 3).
While this notion is quite regularly part of political and legal debates in EU and national arenas, the Study reveals that a proper definition of what national security actually means is lacking across a majority of EUMS under investigation.
The few definitional features that appear in EUMS’ legal regimes and doctrinal practices fail to meet legal certainty and ‘rule of law’ standards, such as the “in accordance with the law” test (see below). This too often leads to a disproportionate degree of appreciation for the executive and over-protection from independent judicial oversight, which is further exacerbated in a context where some EUMS have bilateral systems of mutual respect of state secrets with third countries such as the US.
Moreover, the disparities and heterogeneous legal protection regimes among EUMS also mean that EU citizens who are suspects in judicial procedures are protected differently or to divergent degrees across the EU. There are variable ‘areas of justice’ in the EU when it comes to the rights of defence of suspects in cases dealing with national security and state secrets. This diversity is at odds with the ambition of developing a common AFSJ and achieving non discrimination between EU nationals when it comes to the delivery of fundamental rights.

A second key finding of the Study relates to a growing transnational exchange of intelligence and use of these intelligence materials before courts (as developed in Section 2 and Annex 1 of this Study).

The 2013 Snowden revelations provide the general context within which EUMS’ regimes and practices need to be analysed. There has been a growing expansion of intelligence cooperation across the world, which is mainly transatlantic and asymmetrical in nature due to the more prominent role played by the US.
This has strengthened the view that transnational threats require a more extensive sharing of raw data on individuals collected by internet or mobile devices. This trend poses a number of dilemmas from the perspective of judicial accountably and the rule of law (Section 2.1 of this Study). One relates to the difficulties in assessing the quality, lawfulness and accuracy of the information, and the extent to which this very information can be considered ‘evidence’ in trials (Section 2.2). The current reliance on intelligence information is, moreover, problematic in light of insufficient or deferential judicial oversight of executive decisions taken ‘in the name of national security’.
This is particularly also the case in respect of the ways in which the use of state secrets can disrupt government officials’ accountability in cases of alleged ‘wrongdoing’ (Section 2.3).

A third finding concerns an emerging set of European judicial standards from the European Court of Human Rights (ECtHR) and the Court of Justice of the European Union (CJEU) on issues related to intelligence information, national security and state secrets, in particular when these affect the rights of the defence (refer to Section 3, Annex 1 and Annex 2 of this Study).

One of the most important legal standards when assessing national security and intelligence information is the “in accordance with the law” principle. Continue reading “National security and secret evidence in legislation and before the courts: exploring the challenges”

The End of the Transitional Period for Police and Criminal Justice Measures Adopted before the Lisbon Treaty. Who Monitors Trust in the European Justice Area?

Abstract of a study submitted to the European Parliament Civil Liberties Committee. (LIBE) THE FULL TEXT IS AVAILABLE HERE

Authors: Prof. Valsamis Mitsilegas, Head of Department of Law and Professor of European Criminal Law, Queen Mary, University of London Dr Sergio Carrera, Senior Research Fellow and Head of Justice and Home Affairs Section, Centre for European Policy Studies, CEPS Dr Katharina Eisele, Researcher, CEPS

This Study examines the legal and political implications of the forthcoming end of the transitional period, enshrined in Protocol 36 to the EU Treaties, applicable to legislative measures dealing with police and judicial cooperation in criminal matters and adopted before the entry into force of the Lisbon Treaty. The analysis focuses on the meaning of the transitional period for the wider nature and fundamentals of the European Criminal Justice area and its interplay in the Area of Freedom, Security and Justice (AFSJ). Particular attention is paid to its multifaceted consequences of ‘Lisbonisation’ as regards supranational legislative oversight and judicial scrutiny, not least by the European Parliament in this context, as well as its relevance at times of rethinking the relationship between the principle of mutual recognition of judicial decisions and the fundamental rights of the defence in criminal matters in the AFSJ.

Legal Framework of the Transition

The transitional provisions envisaged in Protocol 36 have limited some of the most far-reaching innovations introduced by the Treaty of Lisbon over EU cooperation in justice and home affairs (JHA) for a period of five years (1 December 2009 to 1 December 2014). Such limits include restrictions on the enforcement powers of the European Commission and of the judicial scrutiny of the Court of Justice of the European Union over legislative measures adopted in these fields before the entry into force of the Lisbon Treaty under the old EU Third Pillar (Title VI of the former version of the Treaty on the European Union). Moreover, Protocol 36 provides for special ‘opt-out/opt-in’ possibilities for the UK. The scope and rules set out in Protocol 36 are of a highly complex and technical nature. The end of the transitional period enshrined in Protocol 36 reveals a complex conglomerate of legal provisions and procedures primarily designed for meeting the interest of some Member States’ governments to limit EU scrutiny, supervision and enforcement powers over national implementation and compliance with European law on police and criminal justice cooperation. This is a critical juncture because the transitional provisions of Protocol 36 come to a formal end on 1 December 2014.

Findings and Challenges

The main legal and political challenges related to the transitional provisions of Protocol 36 are multifaceted. The forthcoming end of the transitional period will only partially address the diverse legal landscape of fundamental rights protection in Europe’s area of criminal justice. The Study argues that the non-participation of the UK in EU legal instruments dealing with suspects’ rights in criminal proceedings undermines severely the effective operability of pre-Lisbon Treaty instruments driven by the mutual recognition principle, such as the European Arrest Warrant, even if from a ‘black letter’ law perspective the UK is entitled to ‘pick and choose’. In addition, the complex legal setting has contributed to creating legal uncertainty and lack of transparency characterising EU criminal justice instruments and their common applicability and implementation across the EU. The ambivalent position of the UK opens up the emergence of different and even competing areas of justice as well as dispersed levels of Europeanisation where enforcement of the principle of mutual recognition and protection of suspect rights are variable and anachronistic across the Union.

That notwithstanding, the Study argues that one of the most far-reaching consequences of the end of the transitional period will be the shifting of supervision on compliance and faithful implementation of EU law on police and criminal justice from domestic authorities in the Member States to EU institutional instances. The end of the transition will most significantly mean the liberalisation of ‘who monitors trust in the AFSJ’. This shift will for the first time ensure transnational legal, judicial and democratic accountability of Member States’ laws and practices implementing EU law in these contested areas, in particular the extent to which EU legislation is timely and duly observed by national authorities.

Protocol 36 does not foresee a formal role for the European Parliament in the decisions involved in the transition. Yet, the Parliament does have responsibility for the partly highly sensitive content of the Third Pillar measures directly affecting the citizens’ rights and freedoms and as co-legislator in post-Lisbon Treaty laws in these same domains. The lack of an effective and independent evaluation mechanism of EU criminal justice instruments based on the principle of mutual recognition poses a major challenge to legal and democratic accountability.

Protocol 36 has primarily aimed at limiting the degree of supranational (EU) legal, judicial and democratic scrutiny concerning EU Member States’ obligations in the EU Area of Justice. The legal patchwork of UK participation in pre- and post-Treaty of Lisbon criminal justice acquis indeed sends a critical signal of incoherency in the current delineation of the European Criminal Justice Area. The Study argues that the varied landscape resulting from the selective participation of the UK in EU criminal law measures poses significant challenges for legal certainty, the protection of fundamental rights in Europe’s area of criminal justice and the overall coherence of EU law.

Article 82(2) TFEU grants express EU competence to legislate on rights of the defence in criminal procedures where necessary to facilitate the operation of the principle of mutual recognition in criminal matters. The legality of post-Lisbon legislation on defence rights is thus inextricably linked with the effective operation of mutual recognition in criminal matters, including of the Framework Decision on the European Arrest Warrant. This is supported by pertinent case law of the Court of Justice of the European Union (CJEU), which ruled against previous UK requests to participate in the Visa Information System, or the Frontex and biometrics regulations on the basis of a teleological and contextual approach focusing on the coherence of EU law.

The Study argues that defence rights should not be negotiable at the expense of citizens’ and residents’ rights and freedoms. There is a direct causal link under EU primary law between the adoption of EU defence rights measures and the effective operation of mutual recognition enforcement instruments. Differing levels of EU Member State commitment to and participation in the fundamental rights of individuals in criminal proceedings run counter to a teleological approach which respects fully the objectives and the integrated nature of the AFSJ.

Recommendations

Increasing Coherency and Practical Operability: Suspects Rights as Sine qua non

The transition envisaged in Protocol 36 may well lead to incoherency and practical inoperability of the European Criminal Justice Area. The European Parliament as co-legislator in EU criminal justice law has an active role to play at times of ensuring that a common understanding of ‘ensuring coherency’ and ‘practical operability’ of the EU AFSJ is firmly anchored on strong defence rights and fair trial protection (rights of suspected or accused persons) and a sound rule of law-compliant (on-theground) implementation across the domestic justice arenas of EU Member States.

Promoting Consolidation and Codification — Better Linking of Mutual Recognition and Rights of Suspects in Criminal Proceedings

The European Parliament should give priority at times of implementing previous inter-institutional calls for consolidation and even codification of existing EU rules and instruments dealing with judicial cooperation in criminal matters. The new LIBE Committee should follow up the calls outlined in the European Parliament Report with recommendations to the Commission on the review of the European Arrest Warrant (2013/2109(INL). This should go along with the full accomplishment of the EU Roadmap of suspects’ rights in criminal proceedings as well as the procedural rights package.

Implementation and Evaluation — A Stronger Democratic Accountability

The European Parliament should give particular priority to better ensuring Member States’ timely and effective implementation of pre- and post-Lisbon Treaty European criminal law. An effective and independent evaluation mechanism should be developed following the template provided by the new 2013 Schengen Evaluation Mechanism, in which the European Parliament has played a role in the decision-making and implementation. This template should be followed at times of implementing any future system for criminal justice cooperation.

The Study starts by situating the discussion and briefly explaining the material scope and particulars featuring the transitional period in Protocol 36 in Section 2. Section 3 then moves into locating the debate in the specific context of the UK, and outlining its casuistic or privileged position in respect of the expansion of `supranationalism’ over EU police and criminal justice cooperation. Section 4 identifies a number of cross-cutting dilemmas and challenges affecting the transitional period, in particular those related to the impact of activating the Commission and Luxembourg Court’s legal and judicial scrutiny powers, questions of incoherencies due to UK’s variable participation and the obstacles to practical operability. Section 5 lays down three potential scenarios for the way forward in what concerns issues of fragmentation and coherence, reforming old EU Third Pillar law and the EAW while ensuring their added value, and questions related to implementation, consolidation and codification of EU criminal law. Section 6 offers some conclusions and puts forward a set of policy suggestions to the European Parliament and its LIBE Committee.

Towards a Declaration of Internet Rights

by Professor Stefano RODOTA’ (FREE Group member) (*)

For many years there has been a wide discussion about the possibility of adopting an Internet Bill of Rights, and debates have produced a considerable number of proposals. The Berkman Centre at Harvard University counted 87 of such proposals, to which we can add the Internet Magna Charta that Tim Berners-Lee is working on, and lastly the Declaration of the Rights of Internet Rights that has been drafted by a Committee established by the President of the Italian Chamber of Deputies. The novelty of the latter is that for the first time the proposal of an Internet Bill of Rights has not been produced by scholars, associations, dynamic coalitions, enterprises, or groups of stakeholders, but by an institutional entity.

It is necessary to recall that the debate on this topic dates back to the World Summit on the Information Society organised in 2005 by the UN in Tunis, where the need for an International Convention on Internet rights was explicitly underlined. This subject was deepened in the following UN Internet Governance Forums. But the international debate was progressively turned into precise rules within the European Union, even before the issue of the Internet Bill of Rights appeared in the international arena. These are not, however, parallel situationsdestined not to meet at any point. The European Union progressively brought to light the constitutional basis of the protection of personal data, finding its full recognition in Article 8 (**) of its Charter of Fundamental Rights. Here a strong similarity with the Internet Bill of Rights is identified, and it concerns precisely the constitutional scope of rules.

We are going through a phase of deep change in the way in which we are facing the problems highlighted by the Internet dynamics, in the passage from Web 1.0 to Web 2.0 and now to Web 3.0. It is not just a matter of following technological changes by adjusting legal provisions to suit them. A new definition is being developed of the rationale driving actions in this area, through a radical U-turn as regards the dynamics of the latest phase. A possible historical turning point is ahead of us, whose/that’s opportunities must be seized.

It seemed that an approach had become consolidated, which left little room to rights. From Scott McNealy’s abrupt statement of 1999 – “You have zero privacy. Get over it” – up to the recent hasty conclusion by Mark Zuckerberg about the end of privacy as a “social rule”, a line characterised by the intertwining of two elements emerged: technological irresistibility and the primacy of the economic logic. On the one side, in fact, it was highlighted how technological innovations and the new social practices made it increasingly difficult, not to say impossible, the safeguard of one’s private life and of the public liberties; on the other side, the statement on the “death of privacy” had become the argument to state that personal information had to be considered as property of those who collected it.

These certainties were radically challenged by Edward Snowden’s disclosure on the magnitude of the National Security Agency’s Prism programme and by the judgements of the European Court of Justice on data retention and Google. The idea according to which the protection of fundamental rights shall give way to the interests of security agencies and enterprises was rejected.

A new hierarchy has been established, with the fundamental rights as the first and starting point. The US President had to admit the inadmissibility of the procedures provided for by the Prism program and the Court of Justice, with its decision of 8th April, that declared that the Directive on data retention was illegal. And in the Google case the same Court explicitly stated that “the fundamental rights under Articles 7 and 8 of the Charter (…) override, as a norm (…) the economic interest of the operator of the search engine”, in a perspective broadening the European Union’s jurisdiction beyond its borders.

We are faced with a true “resurrection of privacy” and, more generally, with the primacy of the need and legitimacy of rules effectively protecting the rights of Internet users. Making reference to article 8 of the Charter, the Court of Justice was acting as a true constitutional court, opening a new and wide perspective.

The Italian initiative

This is the framework within which the Italian initiative on the Declaration of Internet Rights was adopted. Its goal is not limited to having a text to be used for national debate only.

The establishment of the Committee that drafted the document, in fact, was preceded by an international conference gathering some of the authors of the Brazilian Marco Civil, the representatives of European Institutions, and several experts from different Countries.

The text drafted by the Committee was presented on 13th October during a meeting at the Chamber of Deputies with the Presidents of the Parliamentary Committees of Member Countries in charge of fundamental rights.

The present draft is now submitted to a four-month public consultation on the Internet, at the end of which the Committee will draft the final text. Such consultation, however, is also being carried out at a European and international level, as shown by the contacts with other European Parliaments and by the video conference that will be held at the beginning of December between the Italian and the French Committees. Consultations are also taking place with experts and associations from non-European Countries.

An ambitious target was set: drafting a text allowing a common international debate, accompanied by a constant monitoring by the Chamber of Deputies. The goal is not limited to working in the complex and remote perspective of an international convention. Short-term and feasible results can be achieved, concerning the strengthening of the European system, its developments and the relationships with other countries, and most of all the consolidation of a culture highlighting common dynamics in the different legal systems. In this way, the debate around a future Internet Bill of Rights may lead to the awareness that in the different legal systems several elements already exist that, once connected to one another, establish an informal Internet Bill of Rights. An evidence of such trend is found in the decisions of the Courts of the different Countries and in the choice of legislative models, as shown by the clear influence of the European model on the Brazilian Marco Civil.

The Italian Declaration is characterised by a fundamental choice. Differently from almost all the other ones, it does not contain a specific and detailed wording of the different principles and rights already stated by international documents and national Constitutions. Of course, these are generally recalled as an unavoidable reference. But the attempt of the Declaration, as a matter of fact, was to identify the specific principles and rights of the digital world, by underlining not only their peculiarities but also the way in which they generally contribute to redefining the entire sphere of rights.

The key words – besides the most well-known ones concerning the protection of personal data and the right to the informational self-determination – include access, neutrality, integrity and inviolability of IT systems and domains, mass surveillance, development of digital identity, rights and guarantees of people in Internet platforms, anonymity and right to be forgotten, interoperability, right to knowledge and education, and control over Internet governance. The importance of the needs linked to security and to the market is obviously taken into consideration, but the balancing of these interests with fundamental rights and freedoms cannot take place on equal terms, in the sense of ensuring first and foremost the full respect for rights and freedom according to the clear provisions of the Charter of Fundamental Rights and to European case law.

In particular, security needs shall not determine the establishment of a society of surveillance, control and social sorting. Economic needs are taken into consideration in the framework of the neutrality principle that, by guaranteeing the generative nature of the Internet, keeps the possibilities for innovation unchanged, and prevents strong subjects from creating conditions of exclusion of possible competitors. Furthermore, whenever Internet platforms provide public services that are essential for the life and the activities of people, it is necessary to guarantee the conditions for a suitable interoperability in compliance with the principle of competition and equal treatment of people.

Provided that not all the issues can be analysed in this document, it is suitable recalling the need to consider the access to the Internet as a fundamental right of individuals (Tim Berners-Lee compared it to the access to water), as an essential guarantee not only against any form of censorship, but also against indirect limitations, such as taxation as it is presently happening in Hungary. The set of rights recognised do not guarantee a general freedom on the Internet, but specifically aims at preventing the dependency of people from the outside, the expropriation of the right to freely develop one’s personality and identity as it may happen with the wide and increasing use of algorithms and probabilistic techniques. The autonomy in the management of personal data, therefore, shall also consider new rights as those not to be tracked and to keep silent the chip. This perspective requires a particular in-depth analysis, since a deeply interconnected society is being developed, with a passage to Internet of Things in forms that have suggested some people to speak of an Internet of Everything, which determines a digitalisation of day-to-day lives that is able to transform any person and their bodies.

People cannot be reduced to objects of external powers, they must recover the sovereignty on their digital person. Identity is a key issue. The free development of one’s personality must be safeguarded.

Starting from this set of references, it is necessary to thoroughly examine the issue of the transformation of copyright, whose analysis was postponed to the end of the consultation, since knowledge on the Internet appears as a shared asset that can be considered as a common global resource.

A broader perspective is therefore opened by the Italian draft Declaration, in consideration of the large amount of topics to be tackled and the debate between different points of view; and such Declaration is significantly in line with the European Union policy that particularly emphasises the Charter of Fundamental Rights. The unquestionable aspect is the need to fine-tune a constitutional policy for the Internet, whose users – presently amounting to three billion people – cannot rely on a freedom guaranteed by the absence of rules, as it is still presently stated.

The reality is very different, showing an interconnected network heavily regulated by private subjects that cannot be controlled and that have no democratic legitimation, as it happens – beyond any disputes – with the “Over the Top” operating on the Internet. Internet rights are denied by totalitarian regimes and, unfortunately, by democratic regimes as well. The perspective of a Declaration of Internet rights aims at developing – through procedures different from the ones of the past – the constitutional rules that are fundamental in order to allow the Internet to keep its main feature as a place of freedom and democracy, as the widest space of the history of mankind.

NOTE

(*) Intervention at the Friedrich-Ebert-Stiftung –FREE Group experts meeting on :
Internet: only a “single digital market” or also a space to promote fundamental rights – Towards a European “Marco Civil”? (November 12, 2014). The main idea of this experts’ conference has been to have a first look to the impact of the EU Digital Agenda on fundamental rights as framed by the Treaties, the EU Charter and the recent CJEU jurisprudence (Data retention, Google Case..). As stated by the Charter the individual should be at the center of all EU policies and this objective underpins the recent proposal for an Internet Bill Of Rights of the Italian Chamber of Deputies as well as other national examples (Brasilian “Marco Civil” and recent US initiatives at government, congress and civil society level).
Bearing in mind that EU is competent on most of the aspects dealing with Internet the question arises how to preserve and promote individual rights notably in the pending negotiations on legislative proposals notably on Data Protection, Net Neutrality and Network Security (NIS). Moreover what should be the future initiatives to be developed by the a new Commission’s legislative programme impacting on Internet ? How the future EU single digital market could preserve the principles of non-discrimination, and of informational self determination by strengthening the access to internet as a public common good ?
Together with Stefano Rodotà took also part to the Seminar
Claude Moraes Chairman of the European Parliament Civil liberties Committee (which adopted in 2009 a first Internet Bill of Rights resolution)
Jan Philipp Albrecht EP Rapporteur for the Data Protection Regulaiton and for the transatlantic “umbrella” Agreement
Paul Nemitz Director at the European Commission
Giovanni Buttarelli, Assistant European Data Protection Supervisor
Marc ROTENBERG Professor at the Georgetown University and Director of EPIC and Marie GEORGES expert at the Council of Europe
as well as Joe Mc Namee, Executive Director, European Digital Rights (EDRi).

(**) Article 8 Protection of personal data
1. Everyone has the right to the protection of personal data concerning him or her.
2. Such data must be processed fairly for specified purposes and on the basis of the consent of the person concerned or some other legitimate basis laid down by law. Everyone has the right of access to data which has been collected concerning him or her, and the right to have it rectified.
3. Compliance with these rules shall be subject to control by an independent authority