Mutual Recognition of Positive Asylum Decisions in the European Union

by Valsamis Mitsilegas (*)

The following lines summarize the issues I have raised at the Conference on “Managing Asylum Flows: Strengthening the Tools, Strengthening the System” organized by the Italian Presidency of the Council on 18-19 November 2014.

1. In order to evaluate the legal challenges surrounding the development of the Common European Asylum System (CEAS), one must bear in mind the paradox at the heart of the evolution of the Area of Freedom Security and Justice (AFSJ): while for a great part of EU Member States internal borders have been abolished, the administration of law and justice continues to take place at the national level, in accordance with national procedures and law. A Common European Asylum System has not (yet) led to a single European asylum status or procedure.

2. Mutual recognition has been one of the key tools which have been developed in EU law to manage the interaction of national legal systems in this context. Its operation in the AFSJ involves a system whereby decisions by judicial authorities issued in one Member State are recognised and executed speedily and with a minimum of formality and limited grounds for refusal by authorities in other Member States.

3. Mutual recognition has developed in this context in the fields of civil and criminal law. In criminal law, the system established by the European Arrest Warrant Framework Decision is emblematic of the application of the principle of mutual recognition in criminal matters. While the majority of the mutual recognition of the EU acquis in criminal law involves the mutual recognition (and thus extraterritorial application) of decisions aimed at law enforcement and at increasing the powers of the state, there are two Framework Decisions which lead to the mutual recognition of rights: the FD on the European Supervision Order (ESO- concerning the recognition of decisions on bail); and the FD on the European Protection Order (EPO- concerning the extraterritorial application of decisions granting rights to victims of crime such as restraining orders).

4.Notwithstanding the much higher degree of harmonisation in the field of asylum law compared to criminal law, mutual recognition has not been used extensively in the field of asylum. Mutual recognition has been used in a negative manner only in the Dublin system, whereby a decision by national authorities not to examine an asylum claim and leading to the transfer of an asylum seeker to another Member State is almost automatically recognised by the other Member State. The priority is here not to transfer rights, but to shield national systems from the presence and the examination of claims by asylum seekers. Recent case-law by European courts (MSS and Tarakhel in Luxembourg and NS in Luxembourg) has placed limits to the Dublin automaticity and the Dublin system under strain.

5. In the light of the above, the time has come to consider the application of the principle of mutual recognition to positive asylum decisions in EU law. The application of mutual recognition in this context provides five distinct and clear benefits:

a)It will create legal certainty as regards the status and rights of refugees throughout the EU in an AFSJ without internal frontiers

b)It is consistent with the Treaty aim of establishing a CEAS and a uniform status (Article 78 TFEU)

c) The necessary harmonisation which is necessary for the effective operation of mutual recognition exists at EU level, with the adoption of the second generation CEAS instruments post-Lisbon. There is a need to focus on the implementation of and compliance with these instruments across the EU.

d) Mutual recognition of positive asylum decisions is a corollary to developments examining possibilities for the pooling of reception conditions and join processing of asylum claims. Pooling of reception and procedure must be combined with the pooling of protection. Joint efforts in procedures and reception before the granting of refugee status will create joint ownership and mutual trust which will facilitate the subsequent recognition of positive asylum decisions across the EU.

e) Mutual recognition of positive asylum decisions focuses the discussion on solidarity specifically on the needs and rights of the refugee.

6. Point 5 has examined the question of why mutual recognition. This point will address the question of how.
There are three factors which must be considered when examining the precise conditions and modalities for the application of the principle of mutual recognition to positive asylum decisions:

Time: from when will mutual recognition kick in? One option is for mutual recognition to kick in from day one, namely from the date of the judicial decision granting refugee status. Another option may be for mutual recognition to kick in after 2 years of continuous residence in the state which has granted protection in line with the time limits established by the European Agreement of Transfer of Responsibility. A third option may be a hybrid model where movement to the second Member State happens immediately but equal treatment with long-term resident third-country nationals is granted from day one, whereas equal treatment with nationals of the second state is granted after 2 years.

Rights: For mutual recognition to be meaningful, the recognition of status should be accompanied by the recognition of rights. The protection and rights which the refugee is granted in the first Member State should follow her in the second Member State. There are different moments in time when this can happen (see under i).

Quotas: a possible way forward is to combine mutual recognition with the allocation of responsibility between Member States on the basis of quotas. However, this option faces two challenges: it may disregard the particular situation and wishes of refugees (eg in the context of family reunification); and it is hard to enforce in a Union without internal frontiers.

(*) Professor of European Criminal Law, Director of the Criminal Justice Centre / Head of the Department of Law, Queen Mary University of London.

 

(DRAFT) COMMISSION STRATEGY ON EU IMMIGRATION POLICY

ORIGINAL PUBLISHED ON EU LAW ANALYSIS

The following is a leaked draft of the Commission communication on the EU migration agenda which is due to be published on Wednesday 13th May.It might be changed before publication and may also be missing some text.

_____________________________________________________________

  1. Introduction

Throughout history, people have migrated from one place to another. The reasons can vary greatly: political oppression, war, poverty, entrepreneurship, family reunification – every person’s migration tells its own story. Migration impacts society in many different ways and calls for a variety of responses. This Agenda brings together the different steps the European Union should take now, and in the coming years, to meet this challenge.

The immediate imperative must be the duty to protect those in need.  The plight of thousands of migrants putting their lives in peril to cross the Mediterranean has shocked us all. As a first and immediate response, the Commission put forward a ten point plan for immediate action. The European Parliament and the European Council have lent their support to these plans and Member States have also committed to concrete steps to avert further loss of life.

The response was immediate but insufficient. This cannot be a one-off response. Emergency measures have been necessary because the collective European policy on the matter has fallen short. While most Europeans have responded to the plight of the migrants, the reality is that across Europe, there are serious doubts about whether our migration policy is equal to the pressure of thousands of migrants, to the need to integrate migrants in our societies, or to the economic demands of a Europe in demographic decline.

To try to halt the human misery created by those who exploit migrants, we need to exploit the EU’s global role and wide range of tools to address the root causes. Some of these are deep-seated but must be addressed. Globalisation and the communication revolution have created opportunities and raised expectations. Others are the consequence of wars and crises from Ukraine to the Middle East and North Africa. The impact of global poverty and conflict do not end at national frontiers. Europe should continue to be a safe haven for those fleeing persecution but it is also  an attractive destination for economic migrants. Upholding our international commitments and values while protecting our borders and at the same time creating the right conditions for Europe’s economic prosperity and societal well-being is a difficult balancing act that requires coordinated action on the European level.

This calls for a set of core measures and a consistent and clear common policy. We need to restore confidence in our ability to bring together European and national efforts to address migration, to meet our international and ethical obligations and to work together in an effective way. A European solution is essential because these are challenges that no Member State can effectively address alone. But it is clear that we need a new approach. This requires using all policies and tools at our disposal – combining internal and external policies to best effect. This also requires us to show solidarity and shared responsibility. All actors, Member States and EU institutions, need to work together to make a common European migration policy a reality. Continue reading “(DRAFT) COMMISSION STRATEGY ON EU IMMIGRATION POLICY”

The EU’s new (internal) security agenda

ORIGINAL PUBLISHED ON STATEWATCH

by Chris Jones, May 2015

For anyone interested in an overview of the substantial law and order bureaucracy that the European Union and its Member States have constructed over the last four decades, and the direction in which it is heading, the European Commission’s recently-published ‘European Agenda for Security’ is worth a read. This article provides an overview of the key points.

The Agenda [1] opens by stating:
“The European Union aims to ensure that people live in an area of freedom, security and justice, without internal frontiers. Europeans need to feel confident that, wherever they move within Europe, their freedom and their security are well protected, in full compliance with the Union’s values, including the rule of law and fundamental rights.”
It follows on from the EU’s 2010 Internal Security Strategy and the ‘action plan’ that sought to implement it.
The Agenda was formally requested by the Justice and Home Affairs Council in December 2014, [2] through a set of conclusions that call for many of the same proposals put forward by the Commission.
It sets out a five-year “shared agenda between the Union and the Member States” that is supposed to lead to “an EU area of internal security where individuals are protected in full compliance with fundamental rights.”

On the basis of the Commission’s communication and ongoing political and legal developments, it is doubtful – to say the least – whether the proposed “full compliance with fundamental rights” will be achieved.
Instead, the Agenda looks likely to legitimise more repressive laws and policies at EU and national level.
What’s the Agenda? The Agenda will improve:

  • “information exchange”, including of personal data;
  • “increased operational cooperation” between policing, security, border guard and customs agencies, prosecutors, companies, etc.; and
  • “mutual trust [between different national authorities], drawing on the full range of EU policies and tools.”

The three main priorities are “terrorism, organised crime and cybercrime”, although the Commission is “remaining vigilant to other emerging threats [to security] that might also require a coordinated EU response.” The Commission’s broad concerns are that:
“In recent years new and complex threats [to security] have emerged highlighting the need for further synergies and closer cooperation at all levels [of state and industry]. Many of today’s security concerns originate from instability in the EU’s immediate neighbourhood and changing forms of radicalisation, violence and terrorism. Threats are becoming more varied and more international, as well as increasingly cross-border and cross-sectorial in nature.”
There are undoubtedly a number of serious ongoing crises within the EU’s “immediate neighbourhood”. Nevertheless, this rather vague statement also to some extent encourages fear of the unknown. In any case, it provides significant leeway for developing new laws, policies and activities.

The key principles The Agenda has five: Continue reading “The EU’s new (internal) security agenda”

The surveillance society (4): a further study for the European Parliament

Following the so called “Snowden revelations” at the end of the last legislature the European Parliament adopted a wide ranging resolution addressing the main problems arising from an emerging surveillance society.  The resolution adopted inter alia “A European Digital Habeas Corpus” deemed to  protect  fundamental rights in a digital age.

Work on this sensitive issue is continuing also in this legislature as the European Parliament has to play a pivotal role in the establishment of the European Digital Agenda, the reform of data protection and to approve an “umbrella” agreement with the United States which is deemed to cover also the access to personal data for security purposes.

To support this Parliamentary strategy several studies have been done the last of them being a study done by the EP “Scientific and Technology Options Assessment “(STOA) which was presented in the responsible Parliamentary Committee (LIBE) Meeting on 23 April 2015.

The aim of the study is to propose measures to reduce the risks identified with the current generation of networks and services and to identify long-term technology oriented policy options for a better, more secure and more privacy friendly internet, whilst at the same time allowing governmental law enforcement and security agencies to perform their duties, and obtain quickly and legally all the information needed to fight crime and to protect national security interests.

The first part of the study concludes with a list of security solutions to help citizens protect themselves from illicit mass surveillance activities. In its Conclusions it recognise that “Mass surveillance is a reality today and has been applied for years by national intelligence agencies of a number of countries, namely those allied in the Five Eyes coalition, but also including EU members and other countries. The agencies involved in mass surveillance practices justify these methods with the doctrine of pre-emptive prevention of crime and terrorism and adopt the principle of omniscience as its core purpose. This objective of intercepting all communication taking place over Internet or telephone networks is in many cases pursued by applying questionable, if not outright illegal intrusions in IT and Telecommunication systems.This strategy accumulates an amount of information that can only be processed and analysed by systems of artificial intelligence, able to discern patterns which indicate illegal, criminal, or terrorist activities. While warranted and lawful interception of data on targeted suspects is a required and undisputed tool for law enforcement to access evidence, the generalised approach of information gathering through mass surveillance is violating the right to privacy and freedom of speech. The delegation of decisions on suspicious data patterns or behaviour of citizens to intelligent computer systems is furthermore preventing accountability and creating the menace of an Orwellian surveillance society. Many citizens are not aware of the threats they may be subject to when using the Internet or telecommunication devices. As of today, the only way for citizens to counteract surveillance and prevent breach of privacy consists in guaranteeing uncorrupted end-to-end encryption of content and transport channel in all their communications. Due to the amount/complexity/heterogeneity of tools this is however a task too complex to achieve for most of technically unexperienced user. This situation calls for both, awareness creation and the provision of integrated, user friendly and easy to use solutions that guarantee privacy and security of their communications. But policy makers must understand that the problem of mass surveillance can not be solved on a technical terrain, but needs to be addressed on a political level. An adequate balance between civil liberties and legitimate national security interests has to be found, based on a public discussion that empowers citizens to decide upon their civil rights affected and the societal values at stake”.

The second part of the study concludes with the proposal of several policy options with different levels of public intervention and technological disruption.

A STOA options brief below provides  an overview of all the policy options and  Two short Video-Clips  have been published on YouTube to raise the awareness of the public.

Further information

 

Will the EU Migration Agenda (at last) propose to update the EU legislation on smuggling ?

By Isabella MERCONE (FREE Group trainee)

It appears that after the recent tragedies in the Mediterranean, the European Union could finally take action against deaths in the sea, and focus its efforts on the fight against trafficking of human beings. Indeed, in its special meeting on the 23th April, the European Council promised to ‘undertake systematic efforts to identify, capture and destroy vessels before they are used by traffickers’, while the High Representative was invited ‘to immediately begin preparations for a possible CSDP operation to this effect’.[1] 

This statement has been perceived by some scholars as ‘a disproportionate measure’ as it mixes up different legal situation by covering smugglers, traffickers and even pirates in the same legal basket where the legal definition of these crimes is not the same so that this EU strategy looks too hasty and quite  ‘an outrage to human rights and even to the rule of law.’[2] It has still to be seen if such a repressive approach will be endorsed at UN level (as it recently happened with the EU pressure for criminalizing the so-called “Foreign Fighters” phenomenon). The EU High Representative Federica Mogherini will brief the UN Security Council on the issue on Monday (11 May), and for the time being  both the Russian and Chinese representatives and the UN Secretary General Ban-Ki-Moon have already expressed their contrary opinion, by saying that “Apprehending human traffickers and arresting these vessels is one thing, but destroying them would be going too far.”[3]

Smuggling an trafficking look similar but are legally different..

One can then guess if by proposing a bold action such as the destruction of smugglers boats, the European Union is not taking the wrong direction by using military means without a clear legal basis, outside its territory, when the issue should be more framed by criminal law measures be they linked to smugglers or to traffickers. Under this perspective it is worth recalling that, according to international law [4],
– ‘human smuggling’ is recognized as ‘the procurement, in order to obtain, directly or indirectly, a financial or other material benefit, of the illegal entry of a person into a State Party of which the person is not a national or a permanent resident’, while
– ‘human trafficking’ is ‘the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation.’[5]

This is to say that the difference between the two phenomena could be often very subtle, because both of them usually concern the transport of persons from one country to another. However, the different purpose is clear: while the smuggler simply aims at receiving the benefit for the assistance provided for the illegal entry in another country, human trafficking requires evidence of the intent to exploit the trafficked person.
This is why human trafficking and human smuggling differ, although in the real life they can often overlap [6]: because, even if many desperate people are looking for the services provided by smugglers,  not all of them are (fortunately) victims of trafficking, and they deserve different kind of support. Regrettably,these days the public debate and the press present these two different legal situations as if they were the same.
On his side, the European Union, even if it has established a broad legal framework concerning trafficking in human beings[7], has regrettably “forgot” to update its legislation on human smuggling, to effectively tackle this growing phenomenon.

An outdated EU legal framework for smuggling

It is worth recalling that the EU legal framework on smuggling (so-called “facilitators package”) dates back to 2002 and is composed by two [8]measures:

– Council Directive 2002/90/EC, that provides a common definition of the offence and requires Member States to adopt effective sanctions upon any person who intentionally assists a third-country national ‘to enter or transit across’ a Member State ‘in breach of the laws of the State concerned on the entry or transit’ of foreigners, and any person ‘who, for financial gain, intentionally assists’ a third-country national to ‘reside within’ a Member State in breach of its national laws on residence. Identical sanctions must also be applied to instigators or accomplices and those who attempt to commit the activities in question.There is a ‘humanitarian’ exemption, applying ‘where the aim of the behaviour is to provide humanitarian assistance to the person concerned’. But this exception is optional, and only applies to the first category of offence.[9]

– Framework Decision 2002/946/JHA, requires Member States to punish ail the conduct defined in the Directive by ‘effective, proportionate and dissuasive criminal penalties, which may entail extradition’, accompanied if appropriate by confiscation of transport, prohibition of practice of an occupation, or deportation. In cases of unauthorized entry or transit, there must be a maximum sentence of at least eight years if the activity was committed by a criminal organization or if committed while endangering a would-be migrant’s life.

These two measures were adopted as a partial implementation of the UN “Palermo” Convention and clearly only focus on the criminalization of smugglers. As such, they lack in addressing any other aspect of the problem, like prevention or protection of smuggled persons even if in particular there is still no EU requirement to criminalize (or to decriminalize) migrants who have breached immigration law as such.[10]
Instead of providing support and assistance to smuggled persons, who are often in difficult conditions before their departure, suffer great harm during the journey, and eventually find themselves “lost” in a foreign country, trying to build a new life, after having paid a great amount of money for a journey where they risk their life, the European Union decided to insist on the ‘need to combat illegal immigration’, reaffirming the importance of protecting State (EU) sovereignty, rather than providing legal forms of migration to people looking for a better life.

An issue for the EU Commission Migration agenda…

The humanitarian crisis in the Mediterranean is now apparently wakening up the EU and raising the awareness on the growing scale of the migration phenomenon. Moreover, after the Lisbon Treaty it could be possible for the same political majority [11] to adopt a comprehensive migration policy and frame in the same legal framework humanitarian and security aspects  by creating a binding burden sharing between the EU MS.
Now it could be the right time for the EU to change its approach by taking the individual at the core of the EU policies, as required by the Charter of fundamental rights and by dealing with smuggling in a more comprehensive and consistent framework. To do do, in its “holistic” Migration agenda, the Commission should also take into account the European Parliament recommendations :

On the humanitarian side : to provide alternative and safer channels of legal migration by associating in the definition of the new EU strategy and legal acts.Notably, the ministers for social affairs as the Ministers of Interiors, who are currently in charge of these issues, still have a partial distorted view of the human mobility dynamics. In the same perspective, the EU and its MS should engage in information and awareness-raising campaigns to make would-be-migrants aware about the risks they might face in their irregular journeys towards Europe, and inform them about the existence of alternative, safer but affordable forms of migration. It would also be helpful to improve the support to ‘victims’ of smuggling (not only as it is currently the case when the victims cooperate in the criminal investigation, prosecution and trial of a smugglers), both at the moment of arrival and for an appropriate period after.

On the security side : to improve the cooperation among MS in the investigation and conduction of joint operations (supported by EU agencies such as Frontex, Europol and Eurojust) by strengthening in a consistent operational framework the exchange of information dealing with people which can be considered a “threat” for the EU such as smugglers[12], Traffickers and foreign fighters[13].

…or for the UN Security Council ?

EU institutions before launching military operations should take into account what in recent forum between Prosecutors of EU member states has emerged eg that most of the current prosecutions relate to the criminal activity committed by those who provide the transport of migrants in boats, whereas only a few of them address the leaders of the organised crime groups behind this phenomenon. The limited exchange of information through Europol and the lack of coordination between EU Member States should be considered the main obstacles in identifying these organised crime groups. Moreover, effective legislation is considered essential to address this phenomenon and to clearly distinguish between smuggling and trafficking activities, by extending law enforcement’s powers to enter adjacent territorial waters when in hot pursuit of vessels suspected of trafficking.

Last but not least, in the medium and long term perspective, given the trans-border nature of smuggling and human trafficking, consideration should be given to the need to ensure prosecution at EU level of THB and smuggling of migrants crimes, as well as the opportunity to extend the competence of the European Public Prosecutor’s Office (EPPO) also to this kind of crimes. However, it is less than likely that this straight but more legally ambitious solution would be chosen, instead of the slippery shortcut of military intervention.

Further Reading :

Steve PEERS “EU Justice and Home Affairs Law” (Third Edition) published on Oxford European Union Law Library (Chapter 7 Irregular Migration)
Shelley L., “Human Smuggling and Trafficking into Europe: a comparative prospective”, Washington DC, Migration Policy Institute, 2014.
Gallagher A.T., “Trafficking, Smuggling and human rights: tricks and treaties”, Forced Migration Review, 12 (2003), 25-28. NOTES
[1] European Council, ‘Special meeting of the European Council, 23 April 2015 – statement’, 23/04/2015, available at: http://www.consilium.europa.eu/en/press/press-releases/2015/04/23-special-euco-statement/
[2]See, for instance, Gabriella Carella, ‘Tratta degli esseri umani, uso della forza internazionale e prevenzione dei naufragi ( … dello stato di diritto)’, available at: http://www.sidi-isil.org/sidiblog/?p=1417
[3] EUObserver, ‘Russia to oppose EU sinking of migrant smuggler boats’, https://euobserver.com/foreign/128597
[4] Article 3(a) of the UNDOC Smuggling Protocol (‘Protocol against the Smuggling of Migrants by Land, Sea and Air, supplementing the United Nations Convention against Transnational Organized Crime’, GA Res. 55/25, Annex III, UN GAR, 55th Sess., Supp. No. 49, at 53, UN Doc. A/45/49 (Vol.1) (2001), done Nov.15, 2000, entered into force Dec. 25, 2003)., available at: https://www.unodc.org/documents/treaties/UNTOC/Publications/TOC%20Convention/TOCebook-e.pdf
[5] Article 3(a) of the UNDOC Trafficking Protocol (Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime, GA Res. 55/25, Annex II, UN GAR, 55th Sess., Supp. No. 49, at 53, UN Doc. A/45/49 (Vol.1) (2001), done Nov.15, 2000, entered into force Dec. 25, 2003), available at: https://www.unodc.org/documents/treaties/UNTOC/Publications/TOC%20Convention/TOCebook-e.pdf
[6] It is not unusual that a victim of smuggling later on also falls into the hand of a trafficker, in order to pay off his debt for the journey (traffickers ad smugglers often know each other and cooperate).
[7] See primarily the Directive 2011/36/EU of the European Parliament and of the Council of 5 April 2011 on preventing and combating trafficking in human beings and protecting its victims, and replacing Council Framework Decision 2002/629/JHA and the EU Strategy toward the eradication of trafficking in human beings 2012-2016.
[8] In the pre-Lisbon the legal basis for criminal sanctions was in the intergovernamental regime framing the judicial cooperation in criminal matters (so called “ third pillar”).
[9] See Steve PEERS “EU Justice and Home Affairs Law” (Third Edition) published on Oxford European Union Law Library (Chapter 7 Irregular Migration)
[10] It should not be forgotten, however, that Article 31 of the Geneva Convention on refugee status exempts refugees who have entered or stayed irregularly from penalties under certain circumstances.
[11] Before the Lisbon Treaty legislation on Legal migration required the unanimity in Council.
[12] Actually, a provision concerning Communication of information between the Member States is already established by article 7 of Directive 2002/90/EC, but so far it is not clear if the MS have adequately implemented this provision.
[13] It is worth recalling that Europol has recently established a “Focal Point (FP) Travellers” which is mainly focused on so called “foreign fighters” and which is opened to all the EU  Member States as well as to third countries such as Australia, Norway, Switzerland and the US Custom and Border Protection Service (CBP). Eurojust has also asked to be associated.

IS BREXIT INEVITABLE? THE UK’S EU MEMBERSHIP AFTER THE GENERAL ELECTION

ORIGINAL PUBLISHED ON EU LAW ANALYSIS

Friday, 8 May 2015

by Steve PEERS

The unexpected election of a Conservative majority government in the UK raises some fundamental questions about the UK’s continued membership of the European Union. As a first response to the election results, I’ll discuss here in turn the issues relating to the referendum and the renegotiation.

The Brexit referendum

What are the key issues of principle concerning the upcoming referendum?

First of all, let’s start with the obvious point: the new government will implement the Conservative party’s policy of attempting to renegotiate the UK’s membership of the European Union, followed by an in-out (‘Brexit’) referendum on the results of the referendum by the end of 2017. A government bill to this effect will likely be swiftly introduced; it will probably be similar to the Private Member’s Bill tabled on this issue in the last parliament, which was supported by the Conservative party.

Secondly, as I blogged last year, the opposition of many pro-Europeans to a referendum was both a mistake in principle, and a tactical error too. There’s clearly no point in expending any political energy on resisting a referendum any further.  The issue for the pro-EU side is now how to win the referendum.

Thirdly, the idea of trying to expand the voting franchise to cover all EU citizens living in the UK is a moot point in light of the outcome of the election. That’s simply because the Conservatives have the votes to push through (as they proposed in the prior Bill) a referendum based on the usual UK general election franchise (UK, Irish and Commonwealth citizens living in the UK, and UK citizens who have lived abroad for less than 15 years). Indeed, as I blogged earlier this year, while I sympathise with EU citizens living in the UK who would like to vote in a Brexit referendum, it would again be both wrong in principle and a tactical error to expand the franchise for that referendum.

Thirdly, there’s no particular reason to assume, as some inside and outside the EU do, that the anti-EU side will win the referendum. Rather the contrary: according to polling, support for staying in has risen in recent years, and clearly exceeds the support for leaving. That’s before any renegotiation takes place. Of course, we might not want to rely on polling so much in light of the election result – although the lead for the pro-EU side in this poll is much larger than the error in opinion polls during the general election. There’s also no good reason to consider the election result as a de facto vote for Brexit: the Conservative party was arguing for a renegotiation and referendum, not Brexit as such, and did not even get near 40% of the vote in any case. In a referendum, there is no ‘first past the post’ to distort the outcome of the public choice between multiple parties – only a straight ‘yes or no’ decision.

Renegotiation

There are three important political dynamics that will shape the debate over renegotiation of EU membership – and therefore affect the ensuring referendum – in the two and a half years to come.

First of all, a key issue will be the relationship between David Cameron and the rest of his party, most notably the large Eurosceptic chunk of it. Cameron’s decision to promise a renegotiation and a referendum, and then to make immigration from the EU such a key feature of the renegotiation, was prompted by demands from his backbenchers and concerns about losing Tory votes to UKIP. The latter concern will surely now go on the back burner issue as a result of the general election; but could the former issue become more important? With a small majority, is Cameron now even more at the beck and call of his back-benchers?

The key issue here is whether Cameron will continue to respond to Eurosceptic demands to harden his negotiation position (or not to give any ground on the position he has already set out), or whether he will (on this issue at least) feel less pressure than before. After all, he has answered his internal party critics by winning a majority in the House of Commons – and he has less pressure on him as a result of his intention to retire by the end of this parliament. A crucial question here is whether he could count on other parties’ support, if necessary, in the event of a rebellion by his own Eurosceptic backbenchers.

There’s an important point of principle here. Not only does the Conservative party have a democratic mandate to hold a renegotiation and a referendum: it also has a mandate to hold that renegotiation on the terms that Cameron has already set out. Some Eurosceptics believe that the UK could demand any renegotiation terms it liked from the rest of the EU, and automatically get them. But the lack of enthusiasm from other Member States for Cameron’s demands so far suggests that the Conservative party’s demands are already at (if not beyond) the limits of what other Member States could be willing to accept. Those Eurosceptics who feel that his current renegotiation demands are not enough should join the pro-Brexit camp openly and honestly, instead of trying to trick Cameron into making unrealistic demands in the hope that other Member States’ rejection of them would compel Cameron to give up on renegotiation and campaign for Brexit himself.

Secondly, a key issue is what other Member States now do following the general election result. There seemed to be little interest in discussing the renegotiation requests before, but that was understandable for two obvious reasons. First of all, because of the pending general election: why start to renegotiate with someone who might soon lose office? Secondly, because (and this was widely misunderstood) the British government never requested a renegotiation; it was Conservative party policy only. In the absence of agreement on Cameron’s strategy from the Liberal Democrats, the UK government as such never requested a renegotiation.

Both those obstacles to talks have now been removed. The question is whether other Member States are now inclined to respond to the requests for renegotiation or not. The response of key Member States like Germany, and traditional friends of the UK like the Netherlands and Ireland, will be crucial. While some Member States may think ‘this is too politically difficult for us’ or ‘if you don’t like the EU, just go away’, this would be a mistake. As a net contributor to the EU budget and a net importer of goods from the EU, it would be foolish for other Member States to refuse to negotiate at all – although as I said already, that does not mean that the UK can expect the rest of the EU to accept any and all renegotiation demands it might wish to make.

The renegotiation process will raise some important legal questions about the form and substance that renegotiation will take. I have blogged about some of these points earlier, and will be coming back to them over the months ahead.

Thirdly, the role of other political parties in the UK will be crucial. As I already mentioned, Cameron might need their support in the event of a rebellion by Eurosceptic backbenchers. Tempting as it might be to cause trouble for Cameron, it’s not in the interests of pro-EU parties to jeopardise the UK’s EU membership, which they support. Because the Conservative party has a majority, other parties will have no direct influence on the renegotiation as such. But they have an indirect importance, because of their key role in ensuring a Yes vote in the Brexit referendum. This can hardly be secured by Tory votes alone, given that the party attracts under 40% of the vote, including many anti-EU voters.

This has implications for the content of the renegotiation. Many Tories would love to see a renewed opt-out from the social chapter; but many voters on the left might reject staying in the EU on that basis (even if it could be negotiated with other Member States). Anything beyond a modest curtailment of the EU’s working time Directive (for instance, overturning the wacky CJEU case law counting doctors’ sleep as ‘working time’) could risk an anti-EU vote.

Furthermore, this means that pro-EU opposition parties will have to share a platform with (some) Tories – even though we can be certain that after two years of Tory government there will be utter loathing of that idea. But a ‘no’ to the EU will not force the Tory government out, or even cause Cameron to resign (it’s widely assumed that he would resign as Tory leader shortly after the Brexit vote anyway). And the most fervent supporters of the free movement of EU citizens will have to accept that some curtailment of free movement rights is an inevitable consequence of the renegotiation. Without it, there will soon be no free movement between the UK and EU at all.

As for the anti-EU parties (mainly UKIP and a big chunk of the Tories, with a smattering of politicians from other parties), the key issue will be whether they can sell a coherent and plausible alternative to the UK’s EU membership. This is another issue which I will come back to, since it raises many legal issues. But suffice it to say that the simplest alternative to EU membership (the European Economic Area) is unattractive to Eurosceptics because it still provides for free movement of people. Any other alternative will entail a negotiation of a new agreement with the other Member States. But the anti-EU side will not only have to agree a common view on what this would entail, but also convince the public that other Member States will necessarily accept it. Compare to the Scottish independence referendum last year, where the SNP government was able put forward a single detailed plan on what independence would look like (I doubt that the various Eurosceptics could easily agree on the equivalent) but could not then (as I blogged at the time) convince enough Scottish voters that the remaining UK would agree to it. This may prove to be the Achilles heel of the anti-EU side.

Finally, a more general point. The result of the general election is undoubtedly a great shock and disappointment to non-Tories like myself. But the prospect of a Brexit referendum offers us a chance to fight (alongside pro-EU Tories) for important things we believe in, well before the next general election: employment rights, environmental and consumer protection, human rights, animal welfare, openness to the outside world and economic prosperity through trade in goods and services and free movement of people.  Let’s try to light this candle, not simply curse the darkness.

*This post is linked to research for my forthcoming book from Hart Publishing – Brexit: The Legal Framework for Withdrawal from the EU or Renegotiation of EU Membership

Victor Orban, la peine de mort et l’engagement européen de la Hongrie : noces d’étain ou mariage blanc ?

Original published HERE

By Simon LABAYLE

8 MAI 2015 CERIC

Mariage d’amour, mariage d’argent… L’Union européenne a vu se marier toutes sortes de partenaires. Des noces enthousiastes, lorsque la Grèce, le Portugal ou l’Espagne rejoignaient les démocraties déjà membres des Communautés au nom de démocraties au nom de la promotion de l’Etat de droit. Des mariages de raison, lorsque la Suède ou le Danemark la rejoignaient sans ferveur, en cédant à des impératifs essentiellement économiques. Les différentes vagues d’élargissement qui ont façonné le visage de l’Union contemporaine n’ont donc pas provoqué une liesse comparable. Chacune d’entre elle révélait pourtant la volonté de s’unir à ses voisins européens.

L’histoire politique et juridique de l’Union européenne appelle cependant aujourd’hui à réfléchir au sens comme à la force de cet engagement. Un nouvel épisode tiré de la relation tourmentée qu’entretiennent la Hongrie et l’Union sert ici de toile de fond à une réflexion plus globale. On sait en effet les crises qui troublent régulièrement leurs rapports depuis l’investiture de Viktor Orban en tant que Premier ministre suite aux élections législatives d’avril 2010. La dernière en date relance un débat que l’on pensait clos sur la peine de mort.

1. L’Union européenne et la peine de mort

Il convient, avant toute autre chose, de rappeler que la peine de mort est expressément proscrite par le droit de l’Union européenne. L’article 2 de la Charte des droits fondamentaux ne laisse planer aucune ambigüité : « 1. Toute personne a droit à la vie. 2. Nul ne peut être condamné à la peine de mort, ni exécuté ». L’article 19 de la Charte précise d’ailleurs même que « Nul ne peut être éloigné, expulsé ou extradé vers un État où il existe un risque sérieux qu’il soit soumis à la peine de mort, à la torture ou à d’autres peines ou traitements inhumains ou dégradants ». Ce rappel d’une jurisprudence connue de la CourEDH constitue donc un indicateur non négligeable du statut particulier dont jouit cette interdiction au sein de l’Union.

Parallèlement, et au-delà du droit primaire, l’Union européenne a également adopté des orientations contre la peine de mort en 1998, révisées en 2008 et 2013, selon lesquelles «  l’UE considère que l’abolition de la peine de mort contribue au renforcement de la dignité humaine et au développement progressif des droits de l’homme … », tandis que ses principales personnalités politiques multiplient les déclarations en ce sens avec une régularité métronomique. Les présidents Van Rompuy et Barroso l’ont par exemple rappelé à l’occasion du discours le plus symbolique qu’ils prononcèrent au cours de leurs mandats respectifs : celui de leur acceptation du prix Nobel de la paix prononcé le 11 décembre 2012. Plus récemment, en toute logique, l’actuel Président du Conseil européen Donald Tusk a également dénoncé la condamnation à mort médiatisée du ressortissant français Serge Atlaoui par l’Indonésie.

L’Union européenne ne se borne donc pas à proscrire la peine de mort sur son sol. Elle a engagé un véritable combat à son encontre et elle s’impose même comme le premier donateur mondial dans la lutte contre la peine capitale. Cette interdiction dessine donc l’un des marqueurs symboliques de l’identité de l’Union. Il est bon de rappeler aussi que la peine de mort est parallèlement proscrite dans les 47 Etats membres du Conseil de l’Europe, que les articles 2 et 3 de la Convention européenne des droits de l’homme ont été interprétés par la Cour européenne des droits de l’homme comme interdisant celle-ci en toutes circonstances (arrêt Al Saadoon et Mufdhi c. Royaume Uni du 2 mars 2010, § 120), tandis que deux protocoles de la Convention prévoient son abolition (Protocoles 6 et 13). Individuellement, les Etats membres de l’Union sont donc liés par cette obligation, la Hongrie y compris. Il n’est donc nul besoin de démontrer que cette lutte constitue un pivot essentiel de la singularité européenne sur la scène internationale. Ce que Viktor Orban ne pouvait évidemment ignorer.

2. Une nouvelle « affaire » hongroise ?

Continue reading “Victor Orban, la peine de mort et l’engagement européen de la Hongrie : noces d’étain ou mariage blanc ?”

The surveillance society (3) by David COLE

Original published on TIME 

NSA Ruling Is a Victory for Privacy

By David COLE (*)

Renew the NSA’s authority — but only if it is significantly reined in

In a major victory for privacy and democracy, the U.S. Court of Appeals for the Second Circuit ruled today that the National Security Agency has been illegally collecting information about Americans’ phone calls—all Americans’ phone calls—for at least nine years. In the name of fighting terror, the agency has been collecting records on all of us—who we call, when we call, and how long we talk, although not the contents of the calls—without regard to whether we are connected to terrorism. The court unanimously ruled that the NSA’s massive “phone metadata” program, first revealed by Edward Snowden in June 2013, is not authorized by the statute the NSA has long relied on to conduct the program. Congress is currently considering whether to renew, reform, or let the provision expire. Today’s ruling should inform Congress’s debate, and supports renewing the NSA’s authority only if it is significantly reined in.

The court’s decision turned on the meaning of Section 215 of the USA Patriot Act, passed shortly after 9/11. It authorizes the government to obtain records from businesses if they are “relevant” to an “authorized investigation … of international terrorism.” This language would plainly enable the NSA to obtain the phone calling records, for example, of a suspected terrorist, or of persons closely connected to him. But in a secret interpretation allowed by a secret intelligence court in 2006, the NSA asserted that this provision empowered it to obtain the phone records of every American, regardless of whether they were in any way connected to terrorism. It’s that interpretation that the U.S. Court of Appeals wisely rejected today.

The NSA argued that every American’s records were “relevant” and therefore subject to collection because at some point in the future they might come in handy to a terrorism investigation. But as the court of appeals reasoned, that theory is limitless. It would authorize the NSA to collect all business records about everyone—including financial records, medical records, and email and internet search records—without any showing of an actual tie to terrorism.

The court of appeals is not the first to find the NSA’s interpretation a stretch. When Representative Jim Sensenbrenner, a Wisconsin Republican who drafted the Patriot Act provision in question, learned of the NSA’s interpretation, he said that he never intended it to authorize such “dragnet collection” of information on innocent Americans. The Privacy and Civil Liberties Oversight Board, a government oversight body created by Congress and appointed by the president, concluded in January 2014 that Section 215 did not authorize the NSA’s program.

But the unanimous decision of the federal court of appeals has the force of law. More important, its opinion makes eminent sense, underscoring that when Congress gives the executive authority to obtain information only where it is relevant to a specific investigation, the NSA should not secretly expand that to collect records on us all.

The court’s timely decision comes as Congress is considering what to do about Section 215. A bipartisan group of members, including Senators Pat Leahy and Mike Lee, and Representatives Sensenbrenner and John Conyers, has introduced the USA Freedom Act, which would end the NSA’s bulk collection authority, and allow it to seek phone records only when reasonably connected to specific identifiers or “selectors” tied to terrorism. Senator Mitch McConnell, by contrast, has proposed a bill that would reauthorize Section 215 with no reforms whatsoever.

Congress should be guided by the federal appeals court’s careful reasoning. As the court found, the authority asserted and exercised by the NSA was entirely unprecedented. It goes far beyond any preexisting authority to obtain records in any other investigative context. Digital technology makes this possible; the government can now track us in ways that until very recently were simply impossible. But just because it can do so doesn’t make it right to do so. If we are to preserve our privacy in the digital age, we must confront that reality and insist that the government’s new spying technologies be appropriately constrained.

Congress should pass the USA Freedom Act. But doing so will by no means be sufficient. Snowden revealed a wide range of NSA spy programs that intrude on the privacy rights of innocent Americans and non-Americans alike. The USA Freedom Act deals only with one such program. But the court of appeals, and the USA Freedom Act, point the way forward in a more general way. If we are to rein in the NSA, we must insist first that there be public debate before the government institutes sweeping new surveillance programs, and we must demand, second, that surveillance be targeted at individuals as to whom there is suspicion of wrongdoing, and not applied indiscriminately to us all.

 (*) George J. Mitchell Professor in Law and Public Policy at Georgetown University Law Center.

The Surveillance society (2) by Jens-Henrik JEPPESEN

Controversial French Surveillance Regulation Should Re-Ignite EU Debate on Surveillance Reform

Original Published HERE

by 

As has been widely reported in the press, France is moving ahead with new legislation to enable expanded electronic surveillance. As expected, the surveillance bill, the Projet de Loi Relatif au Renseignement, was passed by Members of the French National Assembly by an overwhelming majority on May 5, sparking a fresh round of heated debate.  The legislation will now move to France’s other parliamentary house, the Senate.

The bill is so excessive that we believe it could, and should, lead to a renewed debate on surveillance reform across Europe..

A wide range of French civil society groups, lawyers, and technology industry groups have voiced strong opposition to the bill from its inception. Some have even dubbed the law a French Patriot Act, and the expanded powers found in the legislation would in fact pose a serious threat to human rights in France.  Indeed, the bill is so excessive that we believe it could, and should, lead to a renewed debate on surveillance reform across Europe.   We have long believed that action at the EU level is critical to protecting human rights in the surveillance context, and the French bill shows that this need is more urgent than ever.

According to an analysis by one of the main opponents of the bill, the French digital rights group La Quadrature du Net, the draft bill was introduced by Prime Minister Valls with the ostensible goal of providing a clear legal framework for intelligence gathering that respects fundamental rights. In reality, however, the law expands the scope of permissible electronic surveillance and legalizes a range of highly problematic monitoring techniques that can be extended for potentially indefinite periods and are subject only to relatively weak oversight.  This creates a range of serious civil liberties concerns.

One issue is the widespread use of privacy-invasive surveillance technology. The law would authorize government officials to compel telecommunications service providers to install so-called “black boxes” to monitor the metadata of users’ personal communications for suspicious patterns or behavior, based on automated analysis and algorithms. No judicial review, or judicial warrant, would be required for such surveillance.  Additionally, although the data would initially be analyzed on an anonymous basis (and would not include the content of messages), the authorities would have the power to lift this anonymity for at least some individual users if they believe the patterns show a terrorist threat.  Some experts have already begun to highlight the risk of false positives as well as the technical flaws in the idea of “anonymous” data that can be “de-anonymized”. These practices show that the French interior minister’s claim that the bill is “not aimed at installing generalized surveillance” in France is flat wrong.

Another problem is the broad objectives for which the surveillance techniques foreseen in the bill can be used. The bill uses wording such as “essential foreign policy interests,” “international commitments,” “essential economic or scientific interests,” and “collective violence that could cause serious harm to the public peace.” This is in addition to protecting national security and fighting terrorism and organized crime. With such a vaguely defined and broad scope of application, the surveillance measures authorized by the bill could be brought to bear in a very wide set of contexts and cover large sections of society.

Now would be an excellent time to open a proper European debate on what sort of surveillance may be justified, and what proper oversight of surveillance programs looks like…

Furthermore, the bill creates a set of separate rules on “communications sent or received abroad.” LQDN’s analysis shows that interception, collection, retention, and use of such communications by the intelligence services would not be covered by any of the usual privacy protections found in French law. The rules on this data would be set out in a classified decree to be adopted sometime in the future.

Now would be an excellent time to open a proper European debate on what sort of surveillance may be justified, and what proper oversight of surveillance programs looks like. We are conscious of the limits on the authority of the EU institutions in matters of national security. However, the EU Member States have clear and inescapable obligations under EU law as well as the European Convention on Human Rights to conduct their surveillance activities in strict accordance with privacy and other fundamental rights.   Neither France nor any other Member State can ignore those obligations, including by passing laws as excessive as the one the French Parliament is currently considering.  These pressing issues need to be debated, and any country that overreaches must be held to account.

Thus far, the European Member States have been reluctant to engage in such a debate on their own initiative. Therefore, it would be appropriate for both the European Parliament and the European Commission to take the lead in getting that debate going.

The Surveillance Society (1) by Emilio Mordini

Original published HERE

By Emilio MORDINI

Today (May 7) a US federal appeals court has ruled the phone metadata program of the National Security Agency’s (NSA) is illegal. Metadata is ancillary details generated by a piece of information.  Telephone metadata includes details  such as the length of a call, the phone number from which the call was made, the phone number called,  the telephone devices used, the location of the call, and so. Telephone metadata do not include voice recording and call contents. In 2014 Stanford computer scientist and lawyer, Jonathan Mayer, demonstrated that from phone metadata it is possible to draw very sensitive inferences, such as details about an individual’s familial, political, professional, religious, and sexual life.  Mayer demonstrated that metadata are highly meaningful even in a small population and over a short time period.

The NSA’s telephone metadata program, which started seven months before the September 11, 2001, collected metadata of hundreds of billions of telephone calls made along several years through the largest telephone carriers in the United States. In 2006, the existence of the NSA program was brought to the light by USA TODAY. However, it was only on June 5, 2013 that The Guardian published a top-secret document, which provided the conclusive evidence that the NSA collected phone metadata from hundreds of millions of phone subscribers.  Such a document was included in NSA classified files leaked by Edward Snowden.

On June 11, 2013, the American Civil Liberties Union (ACLU) filed a lawsuit against the NSA, challenging the legality and constitutionality of the phone metadata program. On Dec 16, 2013 the District Court for Southern District of New York ruled the phone metadata program was legal and does not violate the Fourth Amendment (on August 29, 2013, the Foreign Intelligence Surveillance Court had already stated that phone metadata: “is not protected by the Fourth Amendment, since the content of the calls is not accessed”). The ACLU appealed against this decision. Now the court of appeals has definitely ruled that phone metadata program is illegal, because it “exceeds the scope of what Congress has authorized and therefore violates § 215” of the Patriot Act.  Ruling the illegality of the program, the court avoided taking a stance about its constitutionality.  However, what is interesting is the court’s main argument, say, the Patriot Act § 215 provides the legal framework for investigation, but not for a generic threat assessment. Investigation – argues the court – is an activity that entails “both a reason to conduct the inquiry and an articulable connection between the particular inquiry being made and the information being sought. The telephone metadata program, by contrast, seeks to compile data in advance of the need to conduct any inquiry (or even to examine the data), and is based on no evidence of any current connection between the data being sought and any existing inquiry”. Why is this argument intriguing? Because it implies a counter-intuitive explanation of surveillance policies.

Why so many governments and rulers are passionate of surveillance technologies? Because they want to know everything about us, the standard account goes. No, the court tells us; they spy because they do not have any inquiry to do, any explanation to test, any investigation to carry out. Briefly, because they do not know,  are not able to know, and do not want to know. They do not understand the world and its conflicts, they do not have interpretation grids, they cannot figure out  the future. They are just “walking shadows, poor players that strut and fret their hour upon the stage”. They spy just for spying, because of their political emptiness, because of their intellectual laziness. Surveillance is for them the obscene surrogate for knowledge. Understanding is precluded by their shortsighted view; modern, sophisticated, technologies become a surrogate for intelligence.

Today, privacy advocates are celebrating, yet this sentence makes justice also of some of their paranoid fantasies. The surveillance society is not ruled by the big brother, rather by an idiot Peeping Tom.