CALL FOR A TRUE EUROPEAN AREA OF FREEDOM SECURITY AND JUSTICE

By the “Fundamental Rights European Experts Group” (FREE Group) (see below)
“Let’s be driven by our values and not by our fears”

1. Three years after Lisbon the objective of an EAFSJ is still far away…

Three years after the entry into force of the Lisbon Treaty and of the European Charter of fundamental rights one can wonder if the European Union and its Member States are really committed to the objective of building the European Freedom Security and Justice Area. It is worth recalling that this objective dates back to 1997 when the Amsterdam Treaty was signed, but it has since then been substantially upgraded by the Lisbon Treaty.

After years of hard negotiations between the MS the EAFSJ has been tightly linked to a newly binding Charter of fundamental rights and some of the previous political, legal and democratic flaws have been solved. For three years the qualified majority voting has been the normal Council decision-making rule, the EP is a full co-legislator and the Commission and the European Court of Justice can fully play their role.

2. A deceiving outcome on quantitative and qualitative terms..

However notwithstanding these undeniable constitutional advances, the EU recent activity is quite deceptive both in quantitative as in qualitative terms. The EU and its MS seem still in a transitional and survival phase than in the long awaited building phase of true EAFSJ.

On quantitative aspects suffice it to note that since the beginning of the legislative term less than fifty legislative proposals have been submitted and only twenty have until now been adopted (1). If this trend continues one can wonder if the European Parliament and the Council will be able to adopt in the last 18 months of this legislature all the texts currently on the table not to speak of the proposals that the Commission has announced notably from the second half of 2013.

But much more concerning are the qualitative aspects of the institutional activity in a domain which is deemed to be now the core of the European public space.

To start with some positive aspects it is more than likely that the new Common European Asylum System foreseen by the art. 78 TFEU (and by the art.18 of the Charter) will be adopted before the end of this year (2). Progress has also been achieved with the adoption of the first measures dealing with the suspect’s rights in criminal proceedings (3) as well as in the judicial cooperation in civil matters (4) and on the establishment of new Agencies (5).

These decisions have often been taken after lengthy and painful negotiations and have been accompanied by the conclusion of international agreements as happened with the EU-US TFTP and PNR agreements. However a positive assessment on the latter is not obvious and the risks has been denounced that the final outcome could still not comply with the European Charter as well as of the European Convention of Human rights standards (6). The EP rejection of the ACTA agreement (7) has confirmed that the EU institutions often do not share the same vision of the balance to be struck between freedom and security.
Continue reading “CALL FOR A TRUE EUROPEAN AREA OF FREEDOM SECURITY AND JUSTICE”

Illegal migration: the “Returns” Directive in the recent case-law of the ECJ

by: Rosa Raffaelli

The judgment of the ECJ in the Achughbabian case, which follows closely the recently issued El Dridi judgment, has further clarified the scope of application of the Returns Directive (Directive 2008/115/EC).

The Directive, adopted under the co-decision procedure by the European Parliament and the Council, aims at establishing common standards and procedures to be applied in Member States for returning illegally staying third-country nationals (Article 1).
The Directive therefore requires States to issue a return decision to any irregularly staying third-country national, save in exceptional circumstances (Article 6).

The return decision must – as a general rule – include a period for voluntary return of between 7 and 30 days: during this period, the immigrant may not be forcibly expelled but he/she is expected to leave the national territory “voluntarily.” If the immigrant does not comply with the order, or if (exceptionally) no period for voluntary return is granted, States must take all necessary measures to enforce the return decision, including, if strictly necessary, through coercive measures (Article 8).

While the return procedure is ongoing, the third country national may also be detained, if less coercive measures appear insufficient to ensure the positive outcome of the procedure. Articles 15 and 16 provide for a number of guarantees concerning such detention, including a limit on its maximum length (6 months, exceptionally to be extended to a maximum of 18) and the possibility for judicial review, as well as establishing the principles according to which detention may only last as long as there is a reasonable prospect of removal and is to take place in specialized detention facilities. The Directive also provides for the possibility of issuing re-entry bans, lasting for up to 5 years, which are effective on the whole territory of the EU.

The compromise leading to the adoption of the directive was extremely difficult to achieve – so much so that the European Parliament, in order to encourage States to find an acceptable compromise, “froze” the European Return Fund until a directive was approved on the issue. Moreover, the final outcome clearly left many member States unsatisfied, as emerges from the low level of implementation of the Directive even after the deadline for its transposition expired (in December 2010).

Interested parties were, however, left with the possibility of raising the issue of the compatibility of national measures applicable to them with the EU Directive, leading to a surprising number of requests for preliminary rulings being filed to the ECJ.
Continue reading “Illegal migration: the “Returns” Directive in the recent case-law of the ECJ”

European Union and Hungary: towards a new “Haider” case ?

(Original IT – translation still to be revised)

Hungary puts at risk the Union’s values?

”Such a change among the democratic frameworks that we did today was only done by revolutions before. […] Hungarians today have proved that there is a reason for democracy. […] Hungarians today overthrew a system of oligarchs who used to abuse their power.” The new government will be modest and humble. “ (1)

Two years later, these April 2010 Viktor Orban statements celebrating the Fidesz Party two thirds majority in Parliament following the Hungarian elections, sound now very different as it is the case for the economic forecasts following the 2010 Hungarian elections according to which such an electoral result would had made possible for the Hungarian Forint to recover from the crisis from which it had been barely saved in 2008 by the International Monetary Fund and the European Union.

Now, not only the relations between the EU and the IMF seem to have reached their lowest point (at least judging from the recent interruption of the negotiations with the Hungarian monetary authorities) but even bolder critics are emerging at European level as far as the compatibility of various initiatives of the Orban Government with fundamental rights and respect for democratic principles are concerned.

The situation is so worrying to push Guy Verohfstadt, President of the Liberal Group in the European Parliament to declare that Hungary seems not to fully respect anymore the “values” it subscribed when it joined the European Union, (“values” that the Lisbon Treaty has made even more explicit (2). Hence, according to Verohfstadt the European institutions should trigger the “alert” procedure foreseen by art. 7 par. 1 of the EU Treaty (3).

It is worth noting that such an “alert” procedure may be launched by the European Parliament itself and that it is designed to verify if “.. there is a clear risk of a serious breach“ by a Member State of the founding values of the European Union and, if such a risk exists the Council would be entitled to formally recommend the State who has lost its bearings to come back on the rights track.

Needless to say that such an “alert procedure” is very different from the “nuclear option” laid down in the second paragraph of the article 7 where the Council could even suspend a Member State voting rights if “a serious and persistent breach” of European Values has been ascertained.

Yet the mere fact of evoking the “alert” procedure has already led the European Parliament’s political groups, to position themselves as in previous cases by mirroring the political position present at national level (situation which will make difficult to reach the third majority needed in the European Parliament to vote the request the Council to address formal recommendation to Hungary).(4)

The European Parliament debate on this issue will take place during the January Plenary session in Strasbourg then the competent parliamentary committee could start its work as far as the European Commission has shown that there is ground to proceed and the Conference of Presidents of political groups consider that a formal report should be prepared following the proposal of the ALDE President Verohfstadt.

All that having being said on procedural aspects, it is worth recalling which have been the main concerns raised by the recent Hungarian initiatives.
Continue reading “European Union and Hungary: towards a new “Haider” case ?”

The European Arrest Warrant and the EU area of justice

The European Arrest Warrant has come under much discussion in the UK media following the arrest of Julien Assange, the founder of Wikileaks. Main arguments against the EAW surround the topic of the quantity of EAW’s being issued to the UK in comparison to the number received by other Members States and the apparent lack of judicial authority to decide on the proportionality of the crime.

The European Arrest Warrant was established after the “Tampere European Council of 15-16 October 1999 called on Member States to make the principle of mutual recognition the cornerstone of a true European law-enforcement area.” The EAW replaced the extradition system that was in place and required that “each national judicial authority” recognised requests for the “surrender of a person made by the judicial authority of another Member State” with minimum formalities.

However, Member States are still able to form bilateral or multilateral agreements with other Member States in order to simply or facilitate the process further.

There are also judicial safeguards to EAW. Each Member State may refuse to execute a European arrest warrant if:

• final judgment has already been passed by a Member State upon the requested person in respect of the same offence (ne bis in idem principle);

• the offence is covered by an amnesty in the executing Member State;

• the person concerned may not be held criminally responsible by the executing State owing to his/her age.

In relation to the current case of Julian Assange, refusal to extradite him could take place on the grounds that the motive for the EAW is purely a political one.

The UK has refused extradition in the past on these grounds. These examples are not exhaustive of the qualifying grounds to refuse extradition under an EAW, however, in each case the grounds for refusal have to be given.

The European Arrest Warrant allows for the enhanced ability to pursue justice in the European Union. The EU has progressively decreased its internal borders and facilitated the free movement of European citizens. However it is simultaneously easier for criminals to operate across the Member States . Therefore, in order to give the criminal and law agencies sufficient power, their actions must be coordinated across the EU.

In order to better tackle this challenge of international crime, the EU is progressing toward a single area of justice.

The Amsterdam Treaty officially states that the creation of a common area of freedom, security and justice is an aim of the EU. EU Member States have agreed to “approximate the definition of offences and the level of sanctions for certain type of offences” and ensure “mutual recognition of decisions taken by national judges” . These actions are enabling the EU to be perceived as a specific partner on judicial cooperation in the international scene.

“While developing its activities in those directions, the EU has carefully insisted on ensuring a high protection of individual’s rights which characterise highly demanding democracies. ”

The European Arrest Warrant, a step in the direction of an EU area of justice, has recently been discussed widely in the UK media and at least citizens are becoming aware of the topic. However there are severe, basic misunderstandings in the reports. What is needed now is journalism that is more informed. Criticism and accountability is needed, however, real accountability can only be achieved when the citizens are given the right information to truly understand the EAW. The information is already there; it needs to be coherently and accurately communicated.

WikiLeaks: an increased call for transparency

WikiLeaks’ latest release of classified documents raised deep concern among the United States (US) Government and put into question whether the freedom of expression, as established in the First Amendment of the US Constitution, should be object of revision by amending the Espionage Act of 1917.

Attorney General Eric H. Holder Jr. said that a criminal investigation of WikiLeaks is continuing even after Mr. Assange, a 39-year-old Australian, was released on bail after surrendering to British authorities on 7th December in connection with a case in Sweden in which two women have accused him of rape and other sexual crimes.

In the meantime the Air Force and the Library of Congress have blocked the WikiLeaks website.

The repeated calls for criminal prosecutions to the funder of WikiLeakes raise a whole series of questions related to the most fundamental questions about freedom of expression and about what the public can know about the actions of its own government and therefore its level of accountability.

The recent US hearing on WikiLeaks, “Hearing on the Espionage Act and the Legal and Constitutional Issues Raised by WikiLeaks“, which took place on the 16th December 2010 took into considerations, among others, these issues and will be therefore be the main source used for the following analysis.

The background

As of 3 January 2011, 1,997 individual cables had been released by WikiLeaks, which has planned to publish 251,287 cables, originating from 274 embassies, dating from 28th December 1966 to 28th February 2010.

According to WikiLeaks’ website the cables are divided in:

15, 652 secret

101,748 confidential

133,887 unclassified.

According to Judge Louie Gohmert the release of documents “threatens our national security, our relations with foreign governments, and continued openness from embassy officials and foreign sources”.

However, Mr. Gates while defining the leaks embarrassing, considers that they have had modest consequences for US policy, so far. Also Thomas Blanton pointed out that although most international affairs scholars consider the cables useful, so far nothing in the diplomatic cables compares to the impact on public policy in 2004 from the leak of the Abu Ghraib photographs, of the secret prisons, or the torture memos, or the Pentagon Papers’ contribution to the end of the Vietnam war.

So, although embarrassing, the cables do not represent a clear danger to the US security and, since unpopularity does not represent a crime as House Judiciary Committee Chairman John Conyers jr pointed out, it is not clear what law has been violated by WikiLeaks.

The existing difficulties in finding a shared opinion of what information is indeed sensitive and what is not, have led to the over-classification of material, as several panellists pointed out during the hearing. In particular, Thomas Blanton, Director of the National Security Archive George Washington University, stated that current and former officials estimate that between 50% to 90% of what is classified is either over-classified or should not be classified at all.

This opinion was further re-affirmed by former Governor of New Jersey Tom Kean, who commenting on the Committee on House Judiciary review on the US Government’s most sensitive records about Osama bin Laden and Al-Qaeda after 9/11, observed that 75% of what he read that was classified should not have been so. Finally, President Reagan`s National Security Council secretary Rodney McDaniel estimated in 1991 that only 10% of classification was for “legitimate protection of secrets”.

The over-classification of the U.S. government’s national security information means that thousands of soldiers, analysts and officers need access to huge quantities of classified information and this necessary access makes it impossible to effectively protect truly vital secrets, said Mr John Conyers. Harvard law professor Jack Goldsmith, who served President George W. Bush as head of the Office of Legal Counsel at the Justice Department, stated that: “a root cause of the perception of illegitimacy inside the government that led to leaking is, ironically, excessive government secrecy.” As Potter Stewart asserted “When everything is classified, then nothing is classified, and the system becomes one to be disregarded by the cynical or the careless, and to be manipulated by those intent on self-protection or self-promotion.”(…) The hallmark of a truly effective internal security system would be the maximum possible disclosure (…) secrecy can best be preserved only when credibility is truly maintained.”

Of course, nobody is in favour of leaks that put people at risk. But as Mr Bill Delahunt (who serve on the Foreign Affairs Committee and had the opportunity to chair the committee on oversight) pointed out, currently there is an overwhelming over-classification of material which calls for a review of the classification procedures.

Thus, if a great amount of information which is currently classified should not have been classified in the first place, what is the liability of WikiLeaks and more in general what are the obligations that an individual not employed by the Government has towards the latter to keep its own secrets?

To answer to these questions it might be useful to compare this situation to the client-attorney relation, explained Professor Geoffrey Stone, former dean of the University Chicago Law School: “The client is free to keep matters secret by disclosing them to no one. He is also free to disclose certain matters to his attorney who is under a legal obligation to respect the confidentiality of a client’s disclosures. In this sense, the attorney is sort of like the government employee. If the attorney violates the privilege by revealing the client’s confidences say to a reporter, then the attorney can be punished for doing so. But the newspaper cannot be constitutionally punished for disseminating the information.”

However, the proposed Shield Act would amend the Espionage Act of 1917 to make it a crime for any person knowingly and wilfully to disseminate, in any manner prejudicial to the safety or interest of the United States any classified information (…) concerning the human intelligence activities of the United States or (…) concerning the identity of a classified source or informant” working with the intelligence community of the United States.” The proposed Shield Act might be constitutional as applied to a government employee who “leaks” such classified material, but it is unconstitutional as applied to other individuals who might publish or otherwise disseminate such information.

On the basis of the principle of freedom of expression, which stems from the first amendment of the US constitution states:

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

Furthermore, the Supreme Court in the case Bartnicki v. Vopper, held that when an individual receives information from a source who has obtained it unlawfully, that individual may not be punished for publicly disseminating the information, absent the need of the highest order.

Therefore, the suppression of public speech must be the Government’s last rather than first resort in addressing a potential problem. The Government should demonstrate the existence of a clear and present danger before limiting such a right. If there are other means by which government can prevent or reduce the danger, it must exhaust those before it can even entertain the prospect of suppressing the freedom of speech.

On the contrary, Judge Ghomert was of the opinion that nowadays we are confronted with different tools of mass communication compared to the one that were foreseen when the First amendment was written and therefore the boundaries of free speech should be re-thought, so as to balance this freedom with the Government’s need to protect some information.

However, there are very good reasons for the Government to demonstrate a clear and present danger before reducing the freedom of speech and these reasons do not vary depending on different communication tools:

1) The simple fact that the dissemination of such information might in the words of the proposed Act “in any manner prejudice the interests of the United States,” does not mean that the harm outweighs the benefit of publication, as Chairman Conyers noted. 2) A case by case balancing of harm against benefit would be unwieldy, unpredictable, and impracticable. Clear rules are essential in the realm of free speech. That is why the Government has so much authority to restrict the speech of its own employees, rather than insisting that in every case the government demonstrate that the harm outweighs the benefit.

3) There are great pressures that lead both government officials, and even the public, to overstate the potential harm of publication in times of national anxiety. A strict clear and present danger standard serves as a barrier to protect us against that danger, Mr Conyers concluded.

It is evident that, in order to protect effectively real vital information, the classification system should be put under review. Indeed the leaks underline the weaknesses derived from a system not sufficiently transparent.

By focusing on prosecuting WikiLeaks, not only there is a risk of violating one of the fundamental constitutional freedom, but also there is a clear risk of limiting the right of citizens to hold accountable their own Governments democratically elected.

As Mr Delhaunt put it: “Secrecy is the trademark of totalitarism. To the contrary, transparency and openness is what democracy is about”.

LB

EU Internal Security strategy: towards a EU-USA common path?

The traditional meeting between the justice and home affairs ministerial representatives of the United States of America (USA) and of the European Union (EU) took place the 8th and 9th December 2010. Ms Janet Napolitano, from the Department of Homeland Security and Mr Eric Holder, General Attorney of the Department of Justice have discussed with the European Union presidency and the Commissioners Ms Cecilia Malmström and Ms Viviane Reding the transatlantic initiatives, both planned and underway- aimed at preventing and combating terrorism and organised crime.

The meeting confirmed the hegemonic and inspiring role that the American administration has towards the European Union when it comes to defining and implementing the European Internal Security Strategy (ISS).

This is true when it come to the synchronisation of the EU’ activities, since the Justice and Home Affairs Council which took place in Toledo in February 2010 adopted the strategy while the US administration approved the Fourth revision of its own internal security strategy.

It is also true in relation to the increasing concurrence of the objectives underpinning it. After all this is not so surprising for two allies which cooperate on a daily basis in all different domains, going from intelligence, money laundering, to the fight against drugs.

Therefore, the European ISS includes the fight against cyber crime, measures aimed at the protection of commercial flights and cargo safety, use of financial personal data and airplanes passengers. These objectives have been recalled by the Commission in its recent Communication entitled “The EU Internal Security Strategy in Action: Five steps towards a more secure Europe”.

The crucial element here is that while these objectives correspond to what the Congress requested, this is not the case for the European Union, where the position of the European Parliament – which should ensure the legislative transposition of some of these objectives- is much more cautious than the one of the Congress. This is even more striking  if one take into consideration the fact that the Congress is considered even more demanding than both the Bush and Obama Administration, for instance, concerning borders control with the creation of an entry-exit system and limits to visa liberalisation.

The opposition of the Strasbourg Assembly to the indiscriminate collection and systematic storage of personal data of millions of air passengers (PNR) for several years is renowned. Especially, because these data includes also those of individuals which are not wanted nor suspects and that, even after the controls, are not considered a danger for the flights safety.

That is why the Council of the European Union adopted the 3rd December 2010 a negotiation mandate to the Commission which should allow revising in a more restrictive manner the data protection provisions which are provisionally applied on the basis of the EU-USA agreement, since 2007.

It goes without saying that it would be rather naïve to expect the American Administration to welcome such a measure, especially because the new Republican majority in the Congress would interpret it as a lowering down of the guard. Nevertheless, it is also self-evident that the current agreement risks to be rejected by the European Parliament at any moment and this possibility would open a dangerous vacuum, also for the aviation companies.[1]

Rather, it is reasonable to expect a greater willingness from the European Parliament’s side to adopt measures concerning the fight against cyber-crime, one of the USA priority for a long time and recently recalled by the Obama Administration during the last EU-USA summit of 20th November 2010 in the Joint EU-US Statement. The summit promoted a EU-USA working group in the field of cyber security and cyber criminality, which within a year will present a report on a series of initiatives, such as those discussed in the recent EU-US-NATO summit of the 24th November. These measures includes among others,

–       the creation of Computer Emergency Response Team (CERTs) in each European country, along the lines of the corresponding American centres, with the support of the European Agency responsible for network security (ENISA)

–       – the implementation of an emergency network

–       The creation of a sort of control room at the European level, as indicated by the Commission in its proposal for an internal security strategy.

These measures should be complemented by legislative measures such as the Proposal for a Directive on attacks against information systems, currently under review by the European Parliament. This measure will probably get inspiration from the Convention on Cyber crime of the Council of Europe, ratified by the United States itself.

However, all these measures, as well as the last ministerial meeting, all share the same unresolved problem related to the different data protection standards existing in the two sides of the Atlantic, namely in relation to public security. On the one hand, in the United States the protection of privacy and personal data is not considered a fundamental right (at most a penumbral right, subordinated to the safeguard of the right of expression foreseen by the first amendment and to the right of residence foreseen by the fourth amendment). On the other hand, in the EU, these rights are recognised as fundamental by art. 8 of the European Convention on Human Rights as well articles 7 and 8 of the Charter of Fundamental Rights.

Indeed, the European Parliament has requested, especially after 9/11 a transatlantic binding agreement in this field. This could eventually take place on the basis of negotiation mandate which the Council conferred to the Commission on the 3rd December and that Vice-President Reding has already presented to the Parliament.

Theoretically, the US authorities should not oppose it given that the mandate recalls the recommendations made by a common working group which has elaborated a series of common principles. However, the American authorities fear that the new agreement will make more difficult the transfer of data that is already taking place under the EU-USA agreement in the field of judicial cooperation in criminal matters, the agreements with Europol and Eurojust and more importantly the various bilateral agreements negotiated in the last decades between the USA and the EU Member States, in the field of security and fight against crime.[2]

The next months look quite challenging and it will be interesting to follow not only the negotiations but also the tone of the dialogue that will be established between the Congress and the European Parliament, i.e. whether  they will be able to share to a greater extent the perception of a threat and therefore the need to a common answer.

If this will take place, it could be possible to open the way to a Transatlantic Schengen-like space which ahs already been announced in the  EU-US Joint Statement on “Enhancing transatlantic cooperation in the area of Justice, Freedom and Security”

EDC

[1] The same issue is true for those measures which are considered too invasive for the individual privacy, such as the installation of body scanners (1300 are foreseen to be installed in the USA and a few tens in the European Union). It remains to be seen what the European Union will do to implement the new international strategy in the field of aviation security adopted by the 37th ICAO Assembly which took place on 8th October 2010 (Comprehensive Aviation Security Strategy) (ICASS).

[2] See Prüm-like agreements on the basis of which the EU Member States committed themselves to transfer information, , to the United States. These transfer include sensitive information, such as DNA codes, in exchange of looser conditions to obtain visa for their citizens.

 

FRONTEX: first ever RABIT operation deployed on 2 November

The Rapid Border Intervention Teams (RABIT) is a mechanism established so as to allow, in case of exceptional migratory pressure, rapid deployment of border guards on a European level.

Established in 2007 as part of the Agency’s founding mandate, RABIT operations have never been used up to now.

Home Affairs Commissioner Cecilia Malmström went to Greece to see the deployment of the 175 EU border guards posted to the Greece-Turkey border and according to Malmström’s spokesman the operation will consist in providing support activities of various nature.

According to Frontex the objective of the RABIT operation deployed in the Greek-Turkish border is to:

“assist Greek border control authorities in securing the land border with Turkey from a heavy influx of irregular migration. This will entail the deployment of 175 specialist border control personnel from 24 European countries for 24 hour joint surveillance of the land border in the area between Orestiada and Alexandroupolis, as well as additional officers at the Border Crossing Point (BCP) at Kipi.

In addition, guest officers will also be stationed at Athens airport and the operation will be supported by Frontex’s Return Coordination Office in Athens with a view to enhancing Greece’s capacity to return irregular migrants found to be staying illegally on EU territory.

Additionally to surveillance and border control, Frontex will provide interviewers to assist in the screening of apprehended migrants to ascertain their nationality and identity, as well as debriefers to gather evidence on the involvement of people smuggling networks and trafficking rings as well as other relevant intelligence on cross border criminal activities.

Therefore Frontex not only will be involved in surveillance but also in intelligence activities, by having access to personal data of individuals, in ways that are not precisely identified.

Human rights concerns

Although during these activities officers deployed are supposed to respect human rights during these operations as required by, inter alia, Articles 18 and 19 of the Charter of Fundamental Rights of the European Union, several doubts have been raised in this regard, especially taking into consideration the fact that officers may carry service weapons.

Amnesty International has addressed important questions to the State Secretary in charge of Migration and Asylum Policy for the Presidency of the Council of the European Union which took place the 8 and 9 November 2010.

These questions refer to:

The kind of training that officers have attended

According to Frontex the officers involved in RABIT operations have a curriculum that includes among others knowledge related to

“the history of EU and Schengen  EU legislation (special focus on Frontex Regulation, RABITs Regulation, Schengen Border Code)  human rights (Charter of Fundamental Rights of the EU, Geneva Convention and New York Protocol, Common European Asylum System) practical policing (intercultural management, practical work on the border).”

It remains to be demonstrated whether the fact that officers have basic notions on the above, represent sufficient guarantee for a full respect of human rights, including the principle of non-refoulement,  while operations are carried out.

The support that Frontex has received from experts in the field of international protection

No information has been provided in relation the support, if any, that Frontex has received from experts in the field of international protection when planning the RABIT operation.

In fact the decision to deploy a RABIT force follows the following procedure, as explained by Frontex:

“The decision on deployment of the Rapid Border Intervention Teams belongs to the Executive Director of Frontex. The final decision is preceded by a number of procedural steps:

a) Request of a Member State.

b) Information about the request from the Executive Director to the Management Board.

c) Assessment of the situation based on Frontex risk analyses and information provided by a Member State. The Executive Director may also send experts to the operational theatre in order to assess the situation.

d) Decision of the Executive Director (no later than five days from the date of the receipt of the request).

e) Communication on the decision to the requesting Member State and the Management Board.

f) If the decision is positive:

1. Preparation of the Operational Plan

2. Selection and composition of the teams to be sent

3. Deployment”

The kind of support that Greece has received in order to set up adequate reception facilities for all individuals whose status must be verified

So far no information has been found with the kind of support that Greece has received in order to set up adequate reception facilities for all individuals whose status must be verified.

The kind of involvement foreseen for humanitarian agencies and

Humanitarian agencies have requested to be involved in several occasions, so as to be able to monitor how Frontex has been carrying out its activities. However, none of these requests have been taken into consideration so far.

The existence of independent monitoring foreseen for these operation

Frontex explains that officers are subject to civil and criminal liability:

“While performing the tasks and exercising the powers, the members of the teams shall comply with Community law and the national law of the host Member State. While performing the tasks and exercising the powers, the members of the teams shall remain subject to the disciplinary measures of their home Member State. Where members of the teams are operating in a host Member State that Member State shall be liable in accordance with its national law for any damage caused by them during their operations.

Where such damage is caused by gross negligence or willful misconduct, the host Member State may approach the home Member State in order to have any sums it has paid to the victims or persons entitled on their behalf reimbursed by the home Member State.

Without prejudice to the exercise of its rights vis‐à‐vis third parties, each Member State shall waive all its claims against the host Member State or any other Member State for any damage it has sustained, except in cases of gross negligence or willful misconduct. (…) ”

However, Frontex has provided no information related to whether it has foreseen any measure to carry out an effective, constant and independent monitoring of the RABIT operation.

These questions are of utmost importance given the difficulties that third country nationals have to face in accessing refugee protection in Greece and the JHA Council that takes place on Monday 8 and Tuesday 9 November represents the appropriate forum to discuss such issues, especially because one of the point of the agenda concern s the development of the Common European Asylum System (CEAS), whose principles seems to be put increasingly under question by also but not only the Greek case.

FRONTEX: first ever RABIT operation deployed on 2 November

The Rapid Border Intervention Teams (RABIT) is a mechanism established so as to allow, in case of exceptional migratory pressure, rapid deployment of border guards on a European level.

Established in 2007 as part of the Agency’s founding mandate, RABIT operations have never been used up to now.

Home Affairs Commissioner Cecilia Malmström went to Greece to see the deployment of the 175 EU border guards posted to the Greece-Turkey border and according to Malmström’s spokesman the operation will consist in providing support activities of various nature.

According to Frontex the objective of the RABIT operation deployed in the Greek-Turkish border is to:

“assist Greek border control authorities in securing the land border with Turkey from a heavy influx of irregular migration. This will entail the deployment of 175 specialist border control personnel from 24 European countries for 24 hour joint surveillance of the land border in the area between Orestiada and Alexandroupolis, as well as additional officers at the Border Crossing Point (BCP) at Kipi.

In addition, guest officers will also be stationed at Athens airport and the operation will be supported by Frontex’s Return Coordination Office in Athens with a view to enhancing Greece’s capacity to return irregular migrants found to be staying illegally on EU territory.

Additionally to surveillance and border control, Frontex will provide interviewers to assist in the screening of apprehended migrants to ascertain their nationality and identity, as well as debriefers to gather evidence on the involvement of people smuggling networks and trafficking rings as well as other relevant intelligence on cross border criminal activities.

Therefore Frontex not only will be involved in surveillance but also in intelligence activities, by having access to personal data of individuals, in ways that are not precisely identified.

Human rights concerns

Although during these activities officers deployed are supposed to respect human rights during these operations as required by, inter alia, Articles 18 and 19 of the Charter of Fundamental Rights of the European Union, several doubts have been raised in this regard, especially taking into consideration the fact that officers may carry service weapons.

Amnesty International has addressed important questions to the State Secretary in charge of Migration and Asylum Policy for the Presidency of the Council of the European Union which took place the 8 and 9 November 2010.

These questions refer to:

The kind of training that officers have attended

According to Frontex the officers involved in RABIT operations have a curriculum that includes among others knowledge related to

“the history of EU and Schengen  EU legislation (special focus on Frontex Regulation, RABITs Regulation, Schengen Border Code)  human rights (Charter of Fundamental Rights of the EU, Geneva Convention and New York Protocol, Common European Asylum System) practical policing (intercultural management, practical work on the border).”

It remains to be demonstrated whether the fact that officers have basic notions on the above, represent sufficient guarantee for a full respect of human rights, including the principle of non-refoulement,  while operations are carried out.

The support that Frontex has received from experts in the field of international protection

No information has been provided in relation the support, if any, that Frontex has received from experts in the field of international protection when planning the RABIT operation.

In fact the decision to deploy a RABIT force follows the following procedure, as explained by Frontex:

“The decision on deployment of the Rapid Border Intervention Teams belongs to the Executive Director of Frontex. The final decision is preceded by a number of procedural steps:

a) Request of a Member State.

b) Information about the request from the Executive Director to the Management Board.

c) Assessment of the situation based on Frontex risk analyses and information provided by a Member State. The Executive Director may also send experts to the operational theatre in order to assess the situation.

d) Decision of the Executive Director (no later than five days from the date of the receipt of the request).

e) Communication on the decision to the requesting Member State and the Management Board.

f) If the decision is positive:

1. Preparation of the Operational Plan

2. Selection and composition of the teams to be sent

3. Deployment”

The kind of support that Greece has received in order to set up adequate reception facilities for all individuals whose status must be verified

So far no information has been found with the kind of support that Greece has received in order to set up adequate reception facilities for all individuals whose status must be verified.

The kind of involvement foreseen for humanitarian agencies and

Humanitarian agencies have requested to be involved in several occasions, so as to be able to monitor how Frontex has been carrying out its activities. However, none of these requests have been taken into consideration so far.

The existence of independent monitoring foreseen for these operation

Frontex explains that officers are subject to civil and criminal liability:

“While performing the tasks and exercising the powers, the members of the teams shall comply with Community law and the national law of the host Member State. While performing the tasks and exercising the powers, the members of the teams shall remain subject to the disciplinary measures of their home Member State. Where members of the teams are operating in a host Member State that Member State shall be liable in accordance with its national law for any damage caused by them during their operations.

Where such damage is caused by gross negligence or willful misconduct, the host Member State may approach the home Member State in order to have any sums it has paid to the victims or persons entitled on their behalf reimbursed by the home Member State.

Without prejudice to the exercise of its rights vis‐à‐vis third parties, each Member State shall waive all its claims against the host Member State or any other Member State for any damage it has sustained, except in cases of gross negligence or willful misconduct. (…) ”

However, Frontex has provided no information related to whether it has foreseen any measure to carry out an effective, constant and independent monitoring of the RABIT operation.

These questions are of utmost importance given the difficulties that third country nationals have to face in accessing refugee protection in Greece and the JHA Council that takes place on Monday 8 and Tuesday 9 November represents the appropriate forum to discuss such issues, especially because one of the point of the agenda concern s the development of the Common European Asylum System (CEAS), whose principles seems to be put increasingly under question by also but not only the Greek case.

Seasonal Workers – EU institutions state of play

The European Parliament is due to begin discussions on “Seasonal employment: conditions of entry and residence of third-country nationals“.

This follows the European Commission’s proposal on 13 July 2010 for a directive on seasonal employment which has the aim of “establishing a common procedure for entry and residence in the EU and defines the rights of seasonal workers from third-countries” .

According to the Commission the proposed directive concerns non-EU citizens coming to an EU Member State for the purposes of seasonal employment on EU territory. The work will be carried out during one or more fixed-term work contracts concluded directly between the non-EU worker and the employer established in a Member State. The proposal introduces a special procedure for the entry and residence of third-country seasonal workers and “sets out fair and transparent rules for entry and residence while, at the same time, it provides for incentives and safeguards to prevent a temporary stay from becoming permanent“. 

The only other existing provision in this area is the 1994 Council Resolution ‘on limitations on admission of third country nationals to the territory of the Member States for employment’.

Within the Council, Ministers have held a first exchange of views which resulted in “several ministers recalling the right of Member States to determine the number of third-country nationals to be admitted to their territories.  In this context, they pointed out that the impact on national labour markets should be taken into account. Several ministers also highlighted the need for greater flexibility, for example with reference to the proposed duration of stay or the time limits in which applicants must be given a decision. In the case of seasonal employment, a number of member states mentioned that a choice should be given on whether accepted third-country nationals would receive residence permits, as proposed by the Commission, or long-term visas.

Another issue highlighted by several ministers was the question whether the rights accorded to third-country nationals should be equivalent to those enjoyed by nationals of the host member states, in particular with regard to social security benefits. Other delegations questioned whether the proposal on seasonal workers was in line with the principle of subsidiarity.” (Quote taken from: http://www.europarl.europa.eu/oeil/file.jsp?id=5865532)

Conference: Which Integration Policies for Migrants? Interactions between the EU and its Member States”

Please find in the link below information regarding the Conference entitled “Which Integration Policies for Migrants? Interactions between the EU and its Member States” to be held in Brussels the 28 and 29 October 2010
link: http://www.ulb.ac.be/assoc/odysseus/IntegrationE.html