Bringing the Panopticon Home: the UK joins the Schengen Information System

 

Steve Peers

Over two hundred years ago, British philosopher Jeremy Bentham devised the concept of the ‘Panopticon’: a prison designed so that a jailer could in principle watch any prisoner at any time. His theory was that the mere possibility of constant surveillance would induce good behaviour in prison inmates. In recent years, his idea for a panopticon has become a form of shorthand for describing developments of mass surveillance and social control.

The EU’s forays in this area began with the creation of the Schengen Information System (SIS) in the 1990s. The SIS is a well-known EU-wide database containing enormous amounts of information used by policing, immigration and criminal law authorities.  

Until now, the UK has not had any access to the SIS. But this week, the EU Council finally approved the UK’s participation in the System, thereby linking the EU’s most iconic database with the intellectual home of the panopticon theory. What are the specific consequences and broader context of this decision?

Background

The main purpose of the Schengen system is to abolish internal border checks between EU Member States, as well as some associated non-EU States.  At the moment, the full Schengen rules apply to all EU Member States except the UK, Ireland, Cyprus, Romania, Bulgaria and Croatia. Those rules also apply to four associates: Norway, Iceland, Switzerland and Liechtenstein.

All of the Member States are obliged ultimately to become part of the Schengen system, except for the UK and Ireland. Those two Member States negotiated an exemption in the form of a special Protocol at the time when the Schengen rules (which originated in the Schengen Convention, ie a treaty drawn up outside the EU legal order) were integrated into the EU legal system, as part of the Treaty of Amsterdam (in force 1999).

The UK and Ireland are not entirely excluded from the Schengen system. In fact, they negotiated the option to apply to join only some of the Schengen rules if they wished. Their application has to be approved by the Council, acting unanimously. The UK and Ireland essentially chose to opt in to the Schengen rules concerning policing and criminal law, including the SIS, but not the rules concerning the abolition of internal border controls and the harmonisation of rules on external borders and short-term visas.

The UK’s application to this end was approved in 2000 (see Decision here), and Ireland’s was approved in 2002 (see Decision here). But in order to apply each Decision in practice, a separate subsequent Council decision was necessary, because the Schengen system cannot be extended before extensive checks to see whether the new participant is capable of applying the rules in practice.  On that basis, most of the Schengen rules which apply to the UK have applied from the start of 2005 (see Decision, after later amendments, here). The exception is the rules on the SIS, which the UK was not then ready to apply. After spending considerable sums trying to link to the SIS, the UK gave up trying to do so, on the basis that the EU was anyway planning to replace the SIS with a second-generation system (SIS II). There’s a lot of further background detail in the House of Lords report on the UK’s intention to join the SIS (see here), on which I was a special advisor. (Note that Ireland does not apply any of the Schengen rules in practice yet).

It took ages for the EU to get SIS II up and running, and it finally accomplished this task by April 2013 (see Decision here). The UK had planned to join SIS II shortly after it became operational, but this was complicated by the process of opting out of EU criminal law and policing measures adopted before the entry into force of the Treaty of Lisbon, and simultaneously opting back in to some of them again, on December 1^st 2014 (see discussion of that process here). This included an opt back in to the SIS rules.

Once that particular piece of political theatre concluded its final act, the EU and the UK returned to the business of sorting out the UK’s opt in to SIS II in practice. This week’s decisioncompleted that process, giving the UK access to SIS II data starting from March 1^st. The UK can actually use that data, and enter its own data into the SIS, from April 13^th.

Consequences

What exactly does participation in the SIS entail? The details of the system are set out in the 2007 Decisionwhich regulates the use of SIS II for policing and criminal law purposes. There are also separate Regulations governing the use of SIS II for immigration purposes and giving access to SIS II data for authorities which register vehicles. The former Regulation provides for the storage of ‘alerts’ on non-EU citizens who should in principle be denied a visa or banned from entry into the EU, while the latter Regulation aims to ensure that vehicles stolen from one Member State are not registered in another one. The UK participates in the latter Regulation, but not the former, since it could only have access to Schengen immigration alerts if it fully participated in the Schengen rules on the abolition of internal border controls. On current plans, this will happen when hell freezes over.

The SIS II Decision provides for sharing ‘alerts’ on five main categories of persons or things: persons wanted for arrest for surrender or extradition purposes (mainly linked to the European Arrest Warrant); missing persons; persons sought to assist with a judicial procedure; persons and objects who should be subject to discreet checks or specific checks (ie police surveillance); and objects for seizure or use as evidence in criminal proceedings. There are also rules on the exchange of supplementary information between law enforcement authorities after a ‘hit’. For instance, if the UK authorities find that a European Arrest Warrant has been issued for a specific person, they could ask for further details from the authority which issued it.

On the other hand, the SIS does not, as is sometimes thought, provide for a basis for sharing criminal records or various other categories of criminal law data, although the EU has set up some other databases or information exchange systems dealing with such other types of data. (On criminal records in particular, see my earlier blog post here). The main point of setting up the second-generation system was to extend the SIS to new Member States (although in the end a new system wasn’t actually necessary for that purpose), and to provide for new functionalities such as storing fingerprints, which will likely be put into effect in the near future.

In practice, the UK’s participation in SIS II is likely to result in the Crown Prosecution Service receiving more European Arrest Warrants (EAWs) to process, and in more efficient processing of EAWs which the UK has issued to other Member States. It will also be easier, for instance, to check on whether a car or passport stolen in the UK has ended up on the continent, or vice versa.

Broader context

As noted already, while the UK is only now joining the SIS, the System has been around for many years, and has proved to be the precursor of many EU measures in this field. Indeed, as EU surveillance measures go, the SIS turned out to be a ‘gateway drug’: the friendly puff that led inexorably to the crack den of the data retention Directive.

Of course, interferences with the right to privacy can be justified on the basis of the public interest in enforcement of criminal law and ensuring public safety – if the interference is proportionate and in accordance with the law. Compared to (for instance) the data retention Directive and the planned passenger name records system, the SIS is highly targeted, focussing only on those individuals involved in the criminal law process, or police surveillance, or banned from entry from the EU’s territory. The legitimacy of the system therefore depends upon the accuracy and legality of the personal data placed in to it, and the connected data protection rules. On this point, the EU and national data protection supervisors have reported that many data subjects do not even know about the data held on them in SIS II, and they have produced a guide to help them with accessing their data in the system.

There’s an inevitable tension between the EU’s goal to set the world’s highest data protection standards, on the one hand, while also developing multiple huge databases, information exchange systems and surveillance laws, on the other.  It’s as if the brains of the utilitarian Jeremy Bentham and the libertarian John Stuart Mill were both battling for control of the same body – forcing it to draw up plans for the Panopticon at the same time as it was storming the Bastille. If this tension manifested itself in fiction, it would probably take the form of a comedy about a vegetarian butcher, or a virgin porn star. But the need to ensure that measures to protect our security do not remove all our liberty is not a laughing matter.

 

*This blog post is linked to ongoing research on the upcoming 4^th edition of EU Justice and Home Affairs Law (forthcoming, OUP).

 

Image credit: nytimes.com

Barnard & Peers: chapter 25

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Two Codes to rule them all: the Borders and Visa Codes

Steve Peers

In today’s judgment in Air Baltic, the Court of Justice of the European Union (CJEU) has taken the next logical step following its judgment late last year in Koushkaki, where it ruled that the EU’s visa code set out an exhaustive list of grounds for refusing a visa application.  Today the Court has confirmed that the same is true of the Schengen Borders Code. Moreover, the Court has clarified a number of general and specific points about the nature and interpretation of the two codes.

Facts and judgment

This case concerned an Indian citizen who flew from Moscow to Riga. He had a valid multiple-entry Schengen visa, which was attached to a cancelled Indian passport. He also had a second Indian passport, which was valid but which did not contain a visa. The Latvian border guards then refused him entry into Latvia, on the grounds that the valid visa had to be attached to the valid passport, not to the cancelled passport.

For good measure, the Latvian authorities also fined the airline, Air Baltic, for transporting him without the necessary travel documents. The airline appealed the fine, and lost at first instance. But an appeal court then sent questions to the Court of Justice to clarify the legal position.

The CJEU ruled first of all that the cancellation of a passport by a third country did not mean that the visa attached to the passport was invalid. This was because only a Member State authority could annul or revoke a visa, and because the visa code did not allow for the annulment of a visa in such cases anyway. The Court extended its ruling in Koushkaki to confirm that the grounds for annulling a visa were exhaustive; the same must be true of the grounds for revoking a visa.

Secondly, the Court ruled that the Schengen Borders Code did not require entry to be refused in cases like these. The different language versions of that code suggested different interpretations, but as always, the Court seeks a uniform interpretation of EU law regardless. In this case, the standard form to be given to persons who were refused entry at the border to explain why they were refused does not provide for refusal on the grounds that a valid visa was not attached to a valid passport.

Also, the Court pointed out that the idea of separate visas and passports was not unknown to EU law, since the visa code provides that in cases where a Member State refuses to recognise a passport as valid, a visa must be issued as a separate document. Checking two separate documents was not a huge burden for border guards, and refusing entry simply on the grounds that the valid passports and visas were in two separate documents would infringe the principle of proportionality.

Finally, the Court ruled that the national authorities of Member States do not have any residual powers to refuse entry to third-country nationals on grounds besides those listed in the Schengen Borders Code. The Court reached this conclusion, by analogy with Koushkaki, because: the standard form giving the grounds for refusing entry contains an exhaustive list of grounds for refusal; the nature of the Schengen system ‘implies a common definition of the entry conditions’; and this interpretation would support ‘the objective of facilitating legitimate travel’ referred to in the preamble to the visa code.

Comments

The Court’s ruling that the Schengen Borders Code provides for complete harmonisation of the rules on refusal of entry is not really surprising, particularly after the judgment in Koushkaki reaching the equivalent conclusion regarding the visa code. However, it should be noted that in today’s judgment, the Court does not repeat its qualification in Koushkakithat national authorities had wide discretion to interpret the common rules in question. Furthermore, the Schengen Borders Code is relevant not only to those third-country nationals who need visas for entry, but also those who do not, such as visitors from the USA, Canada and most of the Western Balkans.

In effect, the Court’s ruling confirms that the Schengen zone is in effect the equivalent of the EU’s customs union, as regards the movement of people. Of course, the customs union and the Schengen zone do not apply to the same countries, due to opt-outs from Schengen (UK and Ireland), the deferred admission to the Schengen system (Romania, Bulgaria, Cyprus and Croatia), and the rules on association with each system (Turkey is part of the EU’s customs union, while Norway, Iceland, Liechtenstein and Switzerland apply the Schengen rules). But the basic concept is the same, with the obvious implications as regards exclusive external competence of the EU (although a Protocol to the Treaties conserves some external competence over borders for Member States), and uniform interpretation of the rules in the respective codes.

As to the more detailed aspects of this case, the Court is surely right to rule against the pedantry of insisting that where a person holds a valid visa and a valid passport, the visa must always be attached to the passport. The underlying objective to ensure that the person concerned meets the conditions of entry is satisfied regardless of whether the visa is attached to the passport or not. Also, the Court’s ruling that the Borders Code has to be interpreted in accordance with the principle of proportionality, and in light of the objective of facilitating legitimate travel, could have broader implications in other cases.

Finally, the necessary corollary of the judgments in Koushkaki and Air Baltic is that a third-country national who meets the conditions to obtain a visa and/or cross the external borders has the right to that visa and/or to cross those borders. So these issues are not governed by national administrative discretion, but by uniform EU rules. The strengthening of the rule of law in this field is very welcome.

Barnard & Peers: chapter 26

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New EU rules on maritime surveillance: will they stop the deaths and push-backs in the Mediterranean?

Steve Peers

Introduction

A new EU Regulation, published today in the EU’s Official Journal, sets out new rules on maritime surveillance and rescue operations coordinated by Frontex, the EU’s borders agency. What effect will these rules have on reducing the tragic death toll of migrants in the Mediterranean? And what will happen to the asylum claims of those rescued or intercepted in the high seas?

These new rules are a response to the continued argument that the EU must bear at least some of the blame for the deaths of migrants in the Mediterranean. Furthermore, Member States’ authorities and Frontex have often been blamed for violent behaviour or ‘push-backs’: the forced return of migrants’ vessels to unsafe countries, which were condemned by the European Court of Human Rights in its 2012 judgment in Hirsi v Italy.

The Regulation replaces prior rules adopted by the Council alone in 2010, in the form of a Decision implementing the Schengen Borders Code,which was annulled by the Court of Justice of the European Union (CJEU) after the European Parliament (EP) challenged it on procedural grounds. According to the Court, an EU act concerning human rights and coercive measures had to be adopted by means of the EU’s legislative process.

That meant that the European Commission had to propose a legislative measure, which it did in April 2013. At first, a hard-line group of Member States opposed most of the provisions in this proposal concerning search and rescue and disembarkation (ie the rules on the destination of migrants who were intercepted and rescued), even after the particularly tragic loss of 300 migrants’ lives in autumn 2013. However, these Member States relented, and the European Parliament also pressed to retain and improve upon the Commission’s proposal.

The new Regulation was subsequently agreed, and will come into force on 17 July. But does it mean that the EU will be doing enough to address the loss of life and push-backs in the Mediterranean?

This post addresses these issues in turn, and concludes with an assessment of the issue of the accountability of Frontex. It is an updated and amended version of a previous Statewatch analysis on the new rules.

Search and rescue

The previous Decision contained binding rules on interception, and non-binding rules on search and rescue and disembarkation. However, the CJEU said that even the latter category of rules was binding. As noted above, a group of Member States wanted to water down (as it were) most of these rules in the new Regulation, but was ultimately unsuccessful.

There are new rules on search and rescue, which retain (at the EP’s behest) the Commission’s detailed proposal on this issue, including particularly the definition of whether vessels can be considered in a state of alert, uncertainty or distress. Provided that sinking vessels are detected in time and that these rules are properly applied, the Regulation should therefore ensure that migrants are rescued from drowning wherever possible.

Protection and disembarkation rules

On the other hand, the situation is more complex as regards the rules on protection of those migrants who are potentially at risk of persecution, torture or other forms of ill-treatment in their country of origin (or another country).

The core of the new Regulation is Article 4 – the protection against non-refoulement (removal to an unsafe country) and protection of fundamental rights. Article 4(1) states that no-one can be ‘disembarked in, forced to enter, conducted to or otherwise handed over to’ an unsafe country as further defined in the Regulation. Compared to the 2010 Decision, the Commission proposal, and the Council position, the EP successfully insisted on adding the words ‘forced to enter’ and ‘conducted to’, which clearly covers push-backs.

What is an unsafe country? Article 4(1) goes on to define two situations: (a) a serious risk of subjection of the migrant to the death penalty, torture, persecution or other inhuman or degrading treatment; and (b) the migrant’s life or freedom would be threatened on the grounds set out in the Geneva Convention on Refugees (race, religion, nationality, political opinion or membership of a social group), as well as sexual orientation. Also, a ‘chain refoulement’ is banned: a migrant cannot be handed over to a country which is safe in itself, but which would hand the migrant over to an unsafe country.

Compared to the criteria in EU asylum law (the ‘Qualification Directive’), the first category includes two of the grounds concerning the grant of ‘subsidiary protection’ (ie protection for those who do not qualify as refugees under the Geneva Convention): the death penalty and torture or other inhuman or degrading treatment. It does not include the third category, concerning ill-treatment in the event of armed conflict; however, it does include ‘persecution’, without further definition. The second category is identical to Article 33(1) of the Geneva Convention, except that it does not include the exception in Article 33(2) of that Convention for persons posing security threats et al., and it adds the grounds of ‘sexual orientation’ to those referred to in the Convention. However, the CJEU has confirmed that homosexuals can form a ‘particular social group’ under the EU’s Qualification Directive.

The 2010 Decision referred simply to ‘non-refoulement’ without any further explanation in the main text, while the 2013 proposal (and the Council’s position) referred only to the first category of grounds, without the general reference to ‘persecution’. So the EP clearly succeeded in strengthening this provision.

Next, how must an unsafe country be determined? Article 4(2) states that when considering disembarking migrants in a third country, the host Member State (the Member State from which an operation takes place or from which it is launched: Article 2(3)) must ‘take into account the general situation in that third country’, and cannot disembark or otherwise force to enter, conduct to or hand over if the host Member State or other participating Member States ‘are aware or ought to be aware’ that such a State presents such a risk. The EP insisted on adding the references to forcing to enter, conducting to or handing over.

The EP also obtained an amendment further clarifying the sources of information to take into account – a ‘broad range’, including other Member States, EU bodies, agencies and offices and international bodies. The Member States ‘may’ take into account existing agreements and projects carried out using EU funds.

What are the migrants’ procedural rights? Article 4(3) of the Regulation specifies that (in accordance with the Hirsijudgment) before disembarking or otherwise conducting, etc the migrants to a third State, taking into account the general situation in that State, the Member States’ units shall ‘use all means’ to identify the migrants, assess their circumstances, inform them of their destination and give them an opportunity to object on grounds of the non-refoulement rule. These obligations are subject to an override in the interests of the safety of all the persons involved (see Article 3).

The operational plan must ‘where necessary’ provide for medical staff, interpreters, legal advisers and other relevant experts on shore. Also, the annual reports which Frontex must provide on the application of the Regulation must include ‘further details’ on cases of disembarkation in third States, as regards the application of the relevant criteria. These provisions were insisted upon by the EP, in particular the reference to ‘legal advisers’, but there is ‘wiggle room’ conferred by the words ‘where necessary’ and ‘use all means’.

There are also limits on the exchange of personal data with third countries, an obligation to respect human dignity, and rules on training of staff.

The protection rules cannot be separated from the rules on disembarkation of migrants. According to Article 10, there are three scenarios. First, if migrants are intercepted in the territorial sea or contiguous zone (the waters adjacent to the territorial sea, according to international law: see the definition in Article 2(13)) of a Member State, then they must be disembarked in the coastal Member State, ie the Member State in whose territorial waters or contiguous zone the operation takes place (definition in Article 2(14)). But this is subject to a crucial exception: it is possible under the Regulation that a vessel that has made it this close to a Member State could still be ordered to alter course towards another destination.

Secondly, if migrants are intercepted in the high seas, they may be disembarked in the country from which they are assumed to have departed, subject to the non-refoulement rules in the Regulation. If that is not possible, then disembarkation ‘shall’ take place in the host Member State.

Thirdly, in the event of a search and rescue, the migrants shall be disembarked in a place of safety. If that is not possible, then they shall be disembarked in the host Member State.

These provisions raise many important questions. First of all, it should have been clearly specified that the general non-refoulement rule takes priority over any possibility of disembarkation in a third State.

Secondly, as correctly noted in the preamble to the Regulation, the EU’s asylum legislation applies to anyone in the territorial waters of the EU. This means that, in accordance with that legislation, once an asylum application is made in the territorial waters, the asylum applicant cannot be removed to a third State before there is a decision on the asylum application in accordance with that legislation, save for some limited exceptions not relevant here. The obvious corollary of this is that asylum-seekers who make their application in the territorial waters must be disembarked on the territory of the Member State concerned, since it is unlikely that it will be practical to keep them on board a ship for the entire duration of a full asylum procedure. However, the main text of the Regulation does not reflect the wording of this legislation, since it provides for the possibility of persons intercepted or rescued in the territorial waters to be removed to third countries.

Thirdly, when migrants are disembarked on the territory of a Member State, an awkward question could arise: is that Member State safe? While the specific non-refoulement rules in Article 4(2) and (3) refer to the safety of third countries, the general rule in Article 4(1) refers to countries in general. The European Court of Human Rights and the EU’s Court of Justice have already both concluded that Greece in effect fails the standard set out in Article 4, and litigation in some Member States is also challenging the safety of Italy. So there could be a clash between the non-refoulement rule and the obligation to disembark in a Member State which is the host State, coastal State or place of safety, or in the territorial waters of which the applications were made.

Fourthly, as for those intercepted or rescued in the high seas or the contiguous zone (the Regulation does not contemplate the scenario of migrants being intercepted in the territorial waters of third States), the bulk of the EU’s asylum legislation does not apply. However, the EU’s qualification Directive does – since there is nothing in the text of that Directive to limit its territorial scope. But the wording of the Regulation is confusing in this regard, since it does not refer to the detailed text of that Directive but rather to general standards on non-refoulement, which are different from that Directive in some respects, as noted above (the omission of persons fleeing conflict, for instance).

Having said that, EU rules on asylum procedures and reception conditions do not apply to asylum-seekers who are intercepted or rescued in the high seas or the contiguous zone, and in that case the rules in the Regulation would apply. In effect, the rules summarised above provide for a highly simplified process – which might be dubbed the ‘maritime asylum procedure’ – for such cases. As noted above, though, the words ‘where necessary’ and ‘use all means’ arguably give Member States considerable flexibility not to apply these rules fully, and these rules are (understandably) subject to the requirement to give priority to the safety of all persons. This should mean that in the event of a risk to the safety of persons, if the application of the non-refoulement rule has not yet been assessed, the migrants must be taken to a (safe) Member State to avoid prejudicing the outcome of that assessment. Once the migrants enter a Member State’s territorial waters, EU asylum law will apply fully (arguably it applies even if the application was made beforethe vessel entered those waters; if not, then there is nothing to stop the asylum-seeker making a renewed application for asylum once the vessel is in those waters).

Since most EU asylum law does not apply to the high seas, the EU’s Dublin rules on asylum responsibility do not apply either, and it is an open question whether they would apply where a person made an application on the high seas and was then brought to the territorial waters of a Member State while the application was being considered. In order to limit somewhat the huge impact of these Dublin rules on the coastal Mediterranean States, EU Member States could agree between themselves on new rules for responsibility for asylum-seekers who make their application on the high seas. If necessary, this could take the form of an amendment to the Dublin rules, added to the proposed new amendment on the application of those rules to unaccompanied minors.

Finally, at the EP’s behest, the preamble to the Regulation clarifies (recital 7) that a shipmaster and crew should not face criminal sanctions for rescuing migrants and bringing them to a place of safety. This provision is welcome, but it would be better if the EU legislation on criminal sanctions for facilitating irregular migration were amended to confirm that there is no criminal liability in such cases.

Accountability of Frontex (and national authorities)

Article 13 of the Regulation, which was inserted at the EP’s insistence, states that Frontex must make annual reports on the application of the Regulation, including on Frontex’s own procedures and information on the application of the Regulation in practice, including ‘detailed information on compliance with fundamental rights and the impact on those rights, and any incidents which may have taken place’. Presumably this means that these reports will have to include full information on where migrants were disembarked and the assessments that were made of the safety of any third countries (and Member States) in each particular case. It would have been better to clarify the extent of these obligations expressly, although any provision on accountability is better than none. The EP also insisted on a recital in the preamble, which repeats text already in the Frontex Regulation regarding Frontex cooperation with third countries. 

When the Frontex Regulation was last amended in 2011, the EP insisted on many new provisions ensuring that Frontex would be complaint with human rights standards, and the application of these new rules has since been examined by the European Ombudsman. Frontex is still refusing to establish an individual complaints procedure for migrants who believe that it has violated the rules binding upon it, on the grounds that it only coordinates Member States’ authorities’ actions, so cannot be held directly responsible for those actions.

While it would be preferable to ensure that individuals could raise complaints that Frontex had not complied with its obligations as regards human rights, it is also true to say that Frontex only coordinates Member States’ authorities’ actions. In any event, those authorities take actions that are not coordinated by Frontex. Given that (as the new Regulation itself implicitly accepts) any control of the EU’s external border, including by means of patrols outside a Member State’s territorial waters, is linked to the application of the EU’s own rules on external border controls, the EU Charter of Rights is applicable to Member States’ control of those borders. And there have been allegations that Member States’ authorities have on some occasions been responsible for push-backs and ill-treatment of migrants at the external borders.

In this context, it is possible that Frontex has been serving for too long as a ‘lightning rod’ for critics of the EU’s external borders control policy, whereas attention should have focussed more on Member States’ authorities, whether they are being coordinated by Frontex or not. The ‘right to life’ in the European Convention of Human Rights entails, according to the European Court of Human Rights, an obligation to hold an independent investigation into losses of life that have arguably resulted from actions of the authorities. So arguably the EU is under an obligation pursuant to the EU Charter of Fundamental Rights to ensure that its Member States conduct such investigations into losses of life which are linked to the implementation of EU policies, in this case the EU external borders rules. Those authorities should also be held accountable for any alleged push-backs or other ill-treatment of migrants at the external borders.

To that end, the EU should agree upon a general framework for independent investigations into such alleged abuses, with the results of these investigations reported and assessed by the Commission as part of its twice-yearly report on the Schengen system. Furthermore, it is long past time for the Commission to stiffen its backbone and to bring infringement proceedings against Member States where there is sufficient evidence that their authorities are responsible for push-backs or other ill-treatment.

Conclusions

The existence of this Regulation is welcome, as its rules on search and rescue are valuable and its provisions on protection, disembarkation and accountability of Frontex are better than nothing at all. But the complex interplay of the provisions of this Regulation with EU asylum law has led to something of a ‘dog’s dinner’ of rules governing the asylum applications of people rescued or intercepted in the Mediterranean, and the rules on the accountability of Frontex are something of a ‘red herring’ in light of the allegations of serious misconduct in some cases by national authorities. Finally, the Commission’s continued unwillingness to bring infringement proceedings in this area (and in the face of its own documented breaches of other EU immigration and asylum law) is undermining the letter and spirit of the Charter by allowing Member States’ authorities to think that they can violate the Charter with impunity. 

Further reading: Council of Europe Parliamentary Assembly report, June 2014

UNHCR comments on the Commission proposal

Barnard & Peers: chapter 9, chapter 26

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The new guidelines for the Area of Freedom, Security and Justice: some critical comments

Emilio De Capitani

In the coming days the European Council will debate and adopt the long awaited Guidelines which will shape the future of the EU's Area of Freedom, Security and Justice for forthcoming years. These guidelines follow the end of the current Stockholm Programme (2009-2014) and come near the end of the last transitional period for the measures adopted before the entry into force of the Lisbon Treaty on police and judicial cooperation in criminal matters (what remains of the former intergovernmental  'third pillar' cooperation).

Regrettably the draft European Council Conclusions which have been circulated (see the Annex below) and the programme of the incoming “trio” Presidencies (Italian, Latvian and Luxembourg) which will implement them in the next 18 months confirm the worst provisions detailed in our previous post on this issue.

If anyone was searching for proof that European Strategies lack political vision and are a collection of bureaucratic and diplomatic choices, he or she will find in these documents the confirmation of this thesis.  

The emphasis of the European Council on the external dimension of the justice and home affairs polices by privileging soft law instruments such as the Global Approach on Migration or instruments such as mobility partnerships confirm two emerging trends since the entry into force of the Lisbon Treaty : 

- to transfer to the European Council the main EU political choices in the last area where the treaties still do not grant and effective parliamentary and judicial control. 

- to continue to avoid legally binding measures on which solidarity mechanisms can be established (Schengen, Frontex, and Eurosur being the exceptions which confirm the rule). 

Rhetorical declarations aside, the draft European Council guidelines confirm the choice for general (and generic) strategies such as the Internal security strategy or the anti-drugs strategy which are adopted without any debate between the European Council members nor with the European Parliament.

These Strategies should then be implemented by the so called “Policy Cycle” where EU agencies and the Member States representatives - instead of verifying their consistency with national internal security strategies deciding which areas the EU's intervention could add value in - pick and choose (on voluntary basis) some priorities which are approved without debate (as point A) by their ministers without (again) any European or national parliamentary debate.

Where choices and priorities are instead very clearly stated is on the role of the EU Agencies (Europol, Eurojust, EASO..) and bodies (the Anti Terrorism Coordinator) or where it is decided to go on with the establishment of an ambitious technocratic project such as the "smart borders" system (the feasibility of which is still to be proved even in the United States) or by creating an entry-exit system for third country nationals to control better the problems of the "over stayers" (those who remain after their initial permitted period of stay runs out) which apparently is one of the most dangerous threats to the EU. Needless to say that this idea is not new as it was raised by the US Congress years ago and  was considered “silly” in the US also by the former Homeland Security Secretary Chertoff under the BUSH administration.

Even worse, both the European Council draft Conclusions and the trio Presidency programme insist as one of their big priorities is the establishment of a "bona fide traveller" system which will discriminate between one traveller and another on the basis of de facto arbitrary criteria. They also reinstate their commitment to the creation of a European passenger name record (PNR) system.

These projects have in common the rather paranoic idea that any traveller is a potential danger. This is appalling in an European Union where there is still no permanent connection between the criminal records of the Member States, so that information on real criminals can be shared and where a terrorist (like the author of the attack to Jewish Museum in Brussels) can freely circulate even after been checked twice as a dangerous person on the Schengen information System.  

Selling out, for a false sense of security, the real fundamental rights of EU citizens, cannot be the real answer to the threats the EU will face in the coming years.

These inconsistencies can be solved by overcoming the 'silo' approach inside and between the MS and by better framing with a legislative measure the policy cooperation between the Member States (which still do not trust each other). True efficiency should then be measured if the threats are really supranational.

Even a project like  PNR could have its (crazy) logic if somewhere in Europe there were a central intelligence system which could filter these data against a massive intelligence analysis and profile, as happens in the USA. But as it has been designed, PNR will be only a policy laundering exercise where the European Union legislation is adopted to justify the collection of massive personal data at national level. Should we remember  that only on April 8th the Data retention directive, which followed the same logic, was annulled by the CJEU as a clear violation of the proportionality principle and of Articles 7 and 8 of the EU Charter?

The point is that selling out the personal data of EU citizens appears to the European Council less costly than building a real binding framework for police cooperation on the basis of Article 87 of the TFEU. The proof is given by the new Europol whose proposed legal basis (after amendments during negotiations) makes no more reference to Article 87 TFEU and which does not compel the Member States to share their security related informations.

These being the worrying projects on the European Council and Council side one can only hope that the newly elected European Parliament, in its July session, will challenge them and take the lead for a new alternative and legally sound policy which can shape in the next legislature an European area of Freedom, Security and Justice where the citizens' needs and not the administrations will be the real compass.

Barnard & Peers: chapter 25, chapter 26

Annex - draft Guidelines 

             

1.             One of the key objectives of the Union is to build an area of freedom, security and justice without internal borders, with full respect for fundamental rights. To this end, coherent policy measures need to be taken with respect to asylum, immigration, borders, police and judicial cooperation.

2.             All the dimensions of a Europe that protects its citizens and offers effective rights to people inside and outside the Union are interlinked. The success or failure in one field depends on the performance in the other fields as well as on synergies with related policy areas.  The answer to many of the challenges in the area of freedom, security and justice lies in relations with third countries, which calls for improving the link between the EU’s internal and external policies. This has to be reflected in the internal organisation of the EU institutions and bodies. Coordination with and within the Member States should be stepped up.

3.             Building on the past programmes, the overall priority is now to consistently transpose, effectively implement and consolidate the legal instruments and policy measures in place. Intensifying operational cooperation, enhancing the role of the different EU agencies and ensuring the strategic use of EU funds will be key. In further developing the area of freedom, security and justice over the next years, it will be crucial to ensure the protection of fundamental rights, including data protection, whilst addressing security concerns, also in relations with third countries, and to adopt a strong EU General Data Protection framework by 2015.

4.             Faced with challenges such as instability in many parts of the world as well as global demographic trends, an ageing population and skills shortages in Europe, the Union needs an efficient and well-managed migration and asylum policy. A comprehensive approach is required, optimizing the benefits of legal migration and offering protection to those in need while tackling irregular migration resolutely.

5.             To remain an attractive destination for talents and skills, Europe must compete in the global race for talent. Strategies to maximise the opportunities of legal migration should be developed, including the streamlining of existing rules and a dialogue with the business community. The Union should also support Member States' efforts for active integration policies which foster social cohesion and economic dynamism.

6.             The Union's commitment to international protection requires a strong European asylum policy based on the Treaty's principles of solidarity and responsibility. The full transposition and effective implementation of the Common European Asylum System (CEAS) is an absolute priority. This should result in high common standards and stronger cooperation, creating a level playing field where asylum seekers are given the same procedural guarantees and protection throughout the Union. It should go hand in hand with a reinforced role of the European Asylum Support Office (EASO), particularly in promoting the uniform application of the acquis. Converging practices will enhance mutual trust and allow to move to future next steps, including mutual recognition of asylum decisions.

7.             Addressing the root causes of irregular migration flows is an essential part of the EU migration policy. It is imperative to avoid the loss of lives of migrants undertaking hazardous journeys as well as to prevent and reduce irregular migration. A sustainable solution can only be found by intensifying cooperation with countries of origin and transit. Migration policies must become a much stronger integral part of the Union's external and development policies, applying the more for more principle and building on the Global Approach to Migration and Mobility. The focus should be on the following elements:

- strengthening and expanding Regional Protection Programmes, in particular in the Horn of Africa, in close collaboration with UNHCR. In view of the protracted crisis in Syria, increase contributions to global resettlement efforts;

- addressing smuggling and trafficking in human beings more forcefully, with a focus on priority countries and routes. Particular attention should go at present to the situation in Eritrea and the Sinai;

- establishing an effective common return policy and enforcement of readmission agreements;

- fully implementing the actions identified by the Task Force Mediterranean.

8.             The establishment of the Schengen zone, allowing people to travel without internal border controls, and the increasing numbers of people travelling to the EU require efficient management of the EU's external borders to ensure strong protection. This is in the first place the role of the Member States, which must fully take their responsibilities. At the same time the Union must mobilize all the tools at its disposal to support them in this task. To this end:

- the integrated management of the external borders should be modernised to ensure smart border management with an entry-exit system and registered travellers programme and helped by the new Agency for Large Scale IT systems (EU-LISA);

- Frontex, spearheading European solidarity in the area of border control, should reinforce its activities in terms of operational assistance and increase its reactivity towards rapid evolutions in migration flows, making full use of the new European Border Surveillance System EUROSUR;

- the possibility of setting up a European System of Border Guards to enhance the control and surveillance capabilities at our external borders should be explored.

At the same time, the common visa policy needs to be modernised by facilitating legitimate travelling while maintaining a high level of security and implementing the new Schengen governance system.

9.             It is essential to guarantee a genuine area of security to European citizens by preventing and combatting organised crime, human trafficking and corruption. At the same time, an effective EU Counter terrorism policy is needed, whereby all relevant actors work closely together, integrating the internal and external aspects of the fight against terrorism. In this context, the European Council reaffirms the role of the EU Counter Terrorism Coordinator. In its fight against organised crime and terrorism, the Union should back the national authorities by mobilising all instruments of judicial and police cooperation, with a reinforced coordination role for Europol and Eurojust, including through:

- the review of the internal security strategy;

- the improvement of cross-border information exchanges, including on criminal records;

- the development of a comprehensive approach to cybersecurity and cybercrime;

- the prevention of radicalisation and extremism and addressing the phenomenon of foreign fighters, including through a legal instrument allowing for EU wide alerts.

10.         The smooth functioning of a true European area of justice with respect of the different legal systems and traditions of the Member States is vital for the EU. In this regard, mutual trust in each other's justice systems should be further enhanced. A sound European justice policy will contribute to economic growth by helping businesses and consumers to benefit from a reliable business environment within the internal market. Further action is required to:

- promote the consistency and clarity of EU legislation for citizens and businesses;

-simplify access to justice; promote effective remedies and use of technological innovations including the use of e-justice; 

- examine the reinforcement of the rights of persons, notably vulnerable persons, in civil procedures to facilitate enforcement of judgements in family law and in civil and commercial matters;

- enhance mutual recognition of decisions and judgments in civil and criminal matters;

- reinforce exchanges of information between the authorities of the Member States;

- fight fraudulent behaviour and damages to the EU budget by advancing negotiations on the European Public Prosecutor's Office;

- facilitate cross-border activities and operational cooperation;

- enhance training for practitioners;

- mobilise the expertise of relevant EU agencies such as Eurojust and the Fundamental Rights Agency (FRA).

11.         As one of the fundamental freedoms of the European Union, the right of EU citizens to move freely and reside and work in other Member States needs to be protected, including against possible abuse or fraudulent claims.

12.         The European Council calls on the EU institutions and the Member States to ensure the appropriate legislative and operational follow-up to these guidelines and will hold a mid-term review in 2017. 

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Double Jeopardy and EU Law: Court clarifications and Commission reports

Steve Peers

It’s just like buses. You wait almost four years for a CJEU judgment on the Schengen double jeopardy rules, and then two judgments come along almost at once. What’s more, the Commission has also just released two reports on the application of related EU legislation. The judgments have provided a number of useful clarifications of the rules, which the reports paint the familiar disappointing story of tardy implementation of Member States’ legal obligations.

Background

Double jeopardy (or ne bis in idem) in criminal cases, ie trying the same person for the same crime more than once, is banned by many national constitutions and by the Seventh Protocol to the European Convention on Human Rights (although a few Member States have not ratified this Protocol).  However, these rules generally only apply the rule to trials within the same State.

EU law goes further than this, by establishing a cross-border rule. Article 54 of the Schengen Convention, which applies in all Member States except Ireland, as well as the Schengen associates (Norway, Iceland, Switzerland and Liechtenstein), states that ‘A person whose trial has been finally disposed of in one Contracting Party may not be prosecuted in another Contracting Party for the same acts provided that, if a penalty has been imposed, it has been enforced, is actually in the process of being enforced or can no longer be enforced under the laws of the sentencing Contracting Party.’

Article 55 of the Convention allows for a limited number of exceptions to this rule, and Article 56 provides that if there is a second prosecution, any period of deprivation of liberty arising from the same acts in the first Member State must be deducted from any sentence imposed in the second Member State. Article 57 sets up a process of consultation between Member States to implement the rules, while Article 58 allows Member States to apply more generous rules between themselves.

Despite the current limits on the CJEU’s jurisdiction over EU criminal law measures adopted before the Treaty of Lisbon, there have been a considerable number of judgments on these rules over the years, since about two-thirds of Member States have opted into the Court’s jurisdiction. We might expect more cases being sent to the CJEU on these issues after December 1 this year, when those limits will be removed. Cases could even be sent from the UK courts, since the UK intends to opt back in to (among other things) these provisions of the Schengen Convention when it opts out of a lot of pre-Lisbon EU criminal law measures on that date.

EU law does not generally regulate the application of the double jeopardy principle within the same Member State, although it might be relevant where the proceedings concern a substantive criminal law issue linked to EU law (see, for instance, the Fransson judgment).

While national, international and EU law on substantive criminal law often provides for extraterritorial jurisdiction, an investigation into the same person for the same acts in multiple Member States is in prlnciple a waste of time and money, since the person concerned cannot usually be tried twice in both Member States. So back in 2009, the EU adopted a Framework Decision on conflicts of jurisdiction, setting up a process of information and consultation between national authorities if there was an indication that there multiple proceedings concerning the same acts committed by the same person.

On the other hand, if the same person has committed differentcrimes, national criminal law systems usually impose some form of added penalty, in the form (for instance) of harsher bail conditions or a longer sentence in the event of a conviction. It follows from the cross-border nature of EU Justice and Home Affairs cooperation that this principle should apply even if a prior conviction was handed down by another Member State. So another Framework Decision, adopted in 2008, sets out the details of how this rule applies.

The judgments

The first recent judgment, in Spasic, raised two points. First of all, is the rule limiting the double jeopardy rule to cases where the penalty (if there is one) has been enforced, can no longer be enforced or is being enforced (the ‘execution condition’), valid in light of the EU Charter of Rights? Secondly, how does that condition apply where a criminal conviction has resulted in both a custodial penalty and a fine, where the fine has been paid but the custodial penalty has not been served?

These questions were relevant in this case because Mr. Spasic had paid a fine of 800 euros imposed as a sentence by an Italian court for passing counterfeit currency, but had not served the one-year sentence which was imposed for the same acts. So could he still be prosecuted in Germany for them, given that the double jeopardy right in Article 50 of the Charter does not mention any execution condition?

In the Court’s view, the execution condition was valid in light of Article 52(1) of the Charter, which sets out the rules for limiting Charter rights. Limitations must be provided for by law, respect the essence of the rights and freedoms and be necessary and proportionate in pursuit of an objective of general interest.

Here, the limitation was clearly provided for by (EU) law. It respected the essence of the right, since it only limited the double jeopardy rule where the person concerned had escaped punishment. It aimed at securing objectives of general interest, since the Treaty rules on JHA objectives implicitly aimed to avoid situations of impunity. 

As for proportionality, while there were other relevant EU measures, the Framework Decision on conflicts of jurisdiction did not ensure that the person would be punished, and the Framework Decision on transfer of prisoners was subject to the conditions of consent of the person concerned and of the sentencing State. However, the CJEU accepted that it would not be proportionate to bring a second set of proceedings in Germany, if Italy wanted to enforce its sentence (Mr. Spasic had not served that sentence simply because he was imprisoned in Austria for different offences at the time).

On the second point, the Court ruled that custodial and non-custodial penalties were severable for the purpose of applying the execution condition. So paying an 800-euro fine did not equate to partial satisfaction of a one-year jail term, and so did not exempt the person concerned from being prosecuted in a second Member State.

The second case, M, concerned allegations of child abuse against an Italian man living in Belgium. The Belgian authorities investigated these, but a pre-trial chamber gave a ‘non-lieu’ ruling, meaning that the case could not proceed to trial due to insufficient evidence. This ruling was eventually upheld on appeal. In the meantime, the Italian courts had begun their own investigation, and wanted to know if the Belgian ruling was a ‘final judgment’ which prevented them from proceeding to trial.

In the Court’s view, it was. A final judgment could include a pre-trial measure (like the plea bargain accepted by prosecutors in the earlier Gozutok and Brugge case), as long as it finally determined the case on the merits according to national law (applying the test in Turansky). That was the case here, once the appeal was decided. Referring to the Zolukhtunin judgment of the European Court of Human Rights, the CJEU ruled that a possibility of an extraordinary remedy did not preclude a trial from being final. Nor did the possibility, referred to in the ECHR Protocol and Belgian law, of bringing a fresh prosecution, as a derogation from the double jeopardy rule, in the event of new or newly discovered evidence. The Court confirmed that in that case, only the first Member State, not the second, could bring a fresh prosecution.

The reports

For the Framework Decision on conflicts of jurisdiction, the Commission report notes first of all that only about half of the Member States have implemented it (the deadline was June 2012). This makes sense for the UK, since it does not seek to opt back in to this measure. It should be noted that infringement proceedings against Member States will also be possible when the 1 December deadline soon expires.

Overall, while the Commission refers to this measure as a ‘first step’, it states that it cannot draw ‘general conclusions’ about the quality of implementation, because few Member States have practical experience in its implementation. But it does note that some Member States have not applied the key rules on the information to be transferred between authorities. Most Member States permit parallel investigations to take place, even after the consultation process, although they are a waste of time and money. Only Croatia has an express rule (corresponding to the M judgment) that a final judgment in one Member State must terminate a pending prosecution in another.

As for the report on the Framework Decision on the consequences of convictions, six Member States have still not applied it (the deadline was back in 2010). This time, the UK, which seeks to opt back in to this measure, has applied it.

The Commission is rightly concerned that Member States limit the mutual recognition obligation to cases of a final conviction, for otherwise they would be infringing the presumption of innocence. Overall, the Commission expresses dissatisfaction mainly with a group of nine Member States which have claimed to implement the Framework Decision without giving further detail. Obviously it would be wise for those Member States to provide that further detail over the next six months, before infringement actions can be launched. The Commission does not assess the practical application of the European Criminal Records Information system (ECRIS), established by separate EU legislation, which is the main way of ensuring that the relevant information is transferred between Member States in the first place.

Comments

The Court’s ruling that the ‘execution condition’ in the Schengen rules was valid is convincing in light of the great public interest in preventing impunity for those convicted of criminal offences. For the same reasons the Court was right to reject the argument that payment of an 800-euro fine was equivalent to serving a year in jail. That would have amounted to de facto impunity.

Crucially, the Court rightly applied the principle of proportionality to rule that on the facts of the case, a second prosecution could nonetheless not take place if it was still possible in practice to serve the initial sentence instead. This rule ensures that the person concerned does not end up serving two separate sentences for the same crime (recalling that any time served in one Member State would have to be deducted from the time served in another one), and could prevent the cost and waste of time of a second prosecution if it proves to be unnecessary after all.

It should be noted that the Court did not rule here on whether the national derogations permitted by Article 55 of the Schengen Convention are valid. Unlike the execution condition, these rules do not aim to avoid impunity, but rather allow a second prosecution to be brought where: the act took place on a Member State’s territory; the act concerned national security or ‘equally essential’ interests; or the person concerned was an official of the State concerned. In all these cases, justice would best be served by giving the Member State concerned the first opportunity to bring a prosecution, and the Framework Decision on conflicts of jurisdiction should facilitate that. But it may be questioned whether those interests are strong enough to justify the power to bring a second prosecution (although again it must be recognised that any time served in the first Member State must be deducted from any sentence in the second).  

As for the M case, it answers a number of important issues. It is now clear that the double jeopardy rule is triggered only on disposition of a final appeal in the first Member State, and (implicitly) that the rule not only prevents the startof proceedings in a second Member State, but also terminates proceedings that are already underway. Again, the relevance of the Framework Decision on conflicts of jurisdiction becomes clear: whichever of the Member States concerned lost the ‘race’ to a final judgment (stereotypically, this was Italy) would end up having wasted its time and money.

The clarification of what happens in the event of new evidence is also important. It should be noted that, as the Advocate-General pointed out, if new evidence surfaces in Italy (or any other Member State), EU rules can facilitate its transfer to Belgium for the authorities to consider it. Also, the Court makes a general statement that only a ruling on the ‘merits’ counts as a final judgment. This sits oddly with its judgment in Gasparini, where it ruled that a proceeding which was time-barred in one Member State counted as a final judgment, so that case must be seen now as an anomaly.

More broadly, the two new judgments go a long way to reconcile the Schengen double jeopardy rules with human rights law. Oddly, the Court had never before mentioned Article 50 of the Charter in the context of the Schengen rules, until the Spasic case forced it to. Afterward, in the M case, the Court now refers to interpreting the Schengen rules in light of the Charter. As for the ECHR, the CJEU positively dismissed its relevance back in the Van Esbroeck judgment, but since the Strasbourg Court aligned itself with the CJEU's interpretation of the principle in Zolukhtunin, the CJEU is now happy to rely upon the other Court's rulings as a source of interpretation.   

What about the EU legislation? The Court itself, in theSpasic case, said in effect that the Framework Decision on conflicts of jurisdiction was too weak to affect its interpretation of the double jeopardy rules, since it did not ensure that the person concerned would be punished (although actually, that isn’t its main purpose). The M case shows, as noted above, how an early decision on conflicts of jurisdiction is necessary to avoid wasting time and money, and to reduce complications for suspects, particularly given that (in the view of the Belgian courts) there was insufficient evidence to prosecute in that case.

Overall, there seems to be plenty of reason to fear that, as I predicted some time ago, the Framework Decision on conflicts of jurisdiction has done nothing much to avoid multiple prosecutions, in particular because it lacks an obligation in principle to centralise prosecutions, never mind a list of criteria to apply to determine where the prosecution should take place. It has obviously had no effect in the half of Member States which have not bothered to transpose it at all. Since the Commission regards this measure as a ‘first step’, it should have considered measures to amend it to this end at the earliest opportunity.

As for the Framework Decision on the consequences of prior convictions, the Commission assesses its implementation on paper, but not its implementation on the ground. The real question is how it works in conjunction with the ECRIS system, and in particular whether there are any problems as regards the classification of convictions rendered in other Member States.

These reports are released as justice ministries begin their last lazy summer before the prospect of infringement proceedings to make them to live up to their legal obligations (as we have seen previously on this blog, these failures extend also to legislation on prisoners and probation, and to hate crime lawtoo). Time will soon tell whether the Commission will step up to the plate and assume its role as the guardian of EU law in this field.

Barnard & Peers: chapter 9, chapter 25

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