by Emilio De Capitani
On 1st December 2014, after five years
of “legal gestation”, the previous “third pillar” of EU law will finally
transform itself from an intergovernmental larva into a supranational
butterfly. But will this really ensure a coherent policy, correctly applied by
Member States and in full compliance with human rights?
More precisely, in compliance with Article
10 of Protocol 36 to the Treaties, added by the Lisbon Treaty, all the EU
measures dealing with police and judicial cooperation in criminal matters
adopted before the entry into force of the Lisbon Treaty will be treated like all
the other EU legislative measures as far as the jurisdiction of the CJEU is
concerned. Their transposition should be verified on the ground and, in case of
problems, the Commission will be entitled to bring the Member States to the
CJEU, which will also have the power to interpret these measures following references
for a preliminary ruling from all national courts (only some national courts can
send questions at present).
Moreover, with the end of the last
transitional period for the Area of Freedom Security and Justice (AFSJ) it will
be possible on the basis of real and transparent data to decide if dozens of
measures (such as the European arrest warrant or the PRUM decision) which have
been negotiated in a different political and legal context should be revised to
comply with the new EU constitutional framework.
Quite surprisingly the aforementioned
deadline – which will inevitably have a profound impact on the Member States’
policies and on the rights of the EU citizens – is approaching without any sort
of public debate by the civil society, the national parliaments or the
academia.
Even at EU level during the last
Justice and Home affairs Council where the point was on the agenda no
delegations took the floor nor the recent European Council referred to it in
the Guidelines framing the
future of the freedom security and justice area.
UK opt-in, opt-out and re-opt-in…
Why this silence? It is more than
likely that such a “diplomatic” reserve and understatement are due to the fact
that the UK is currently negotiating with the Council and the Commission which
will be its final position on the former EU third pillar measures. (see here) It is was indeed
to comply with the UK’s “red lines” that in October 2007 in the final phase of
the Lisbon Treaty negotiations, a five year period freezing the Commission and
CJEU enforcement powers was inserted in Protocol 36 (transitional measures).
At that time the UK government’s aim
was (and probably still is) to protect its common law systems, and its police
and judicial processes from the risk of the CJEU’s “judicial activism”.
According to a House of Lords report, the UK
Government asked it because the “vast majority” of pre-Lisbon police and
judicial cooperation (PCJ) measures were not drafted with CJEU jurisdiction in
mind and had often been agreed at the “lowest common denominator” in order to
secure unanimity. As a result, much of the drafting was “not of a high standard
and may be open to expansive interpretation by the ECJ” (see point 91 of House
Of Lords Report “EU police and criminal justice measures: The UK’s 2014 opt-out
decision” HL Paper 159).
Very skilfully the UK also obtained in
the same Protocol the right to opt out from all the former third pillar
measures before May 2014 as well as the possibility of a second thought, after
December 1st 2014 of agreeing with the Council (for Schengen related measures)
and with the Commission a new opt-in on some (or all) the former third pillar
measures. However, according to Protocol 26 the UK re-opt-in could be granted
only “without seriously affecting the practical operability” of the third
pillar measures and by “respecting their coherence”.
Last year the UK Government submitted
to the Council its Opt-Out decision and is now informally negotiating the
possible re-opt-in for around 35/37 third pillar measures (see here)
It is too early to know which will be
the result of the EU-UK negotiations. However if the Council and the Commission
will accept the UK re-opt-in request (which for some measures can be delayed
after the end of 2015) the situation will not be extremely different from the
one existing before the block opt-out – except that the UK will now be subject
to the Commission and CJEU enforcement powers.
The difficult quest of the former third
pillar acquis ….
The UK’s (and Denmark’s) peculiar
situation aside, the definition of the pre-Lisbon acquis for police and
judicial cooperation in criminal matters will be extremely important also for
the other EU member States and, quite probably for the European Parliament (EP)
and for the national parliaments. The EP is, since the end of 2009, a
co-legislator also for police and judicial cooperation in criminal matters but
will not be associated with the implementation of Protocol 36. As for national
parliaments, they will now share with the EP wide scrutiny powers (Articles 70,
71 85 and 88 TFEU) on these policies, and will at last have the opportunity to
check what happened in the EU outside their national borders and even more
inside their national territory. Maybe the December 1st deadline could then be
an occasion at least for some of them to verify if these EU measures have been
correctly transposed and, if they have to be amended (as it still possible for
measures such as Europol and Eurojust which are currently renegotiated at EU
level).
A revised list of the
former third pillar measures has been recently established by the Commission in
cooperation of MS representatives. The 123 measures currently covered by
Protocol 36 are very diverse: some of them are of quasi legislative nature
(such as the Framework Decisions) some others (such as the international
agreements or Conventions, and the Council Decision) even if not legislative,
are binding, and some others are of uncertain nature as it is the case for the
“Joint Actions” adopted under the Maastricht Treaty regime.
As far as the content is concerned
these measures deal with:
- mutual recognition of national decisions (such as the European Arrest Warrant (EAW) the European Supervision Order, the mutual recognition of freezing orders; fines; confiscation orders, probation orders; and of prison sentences…);
- harmonization of the definitions of certain criminal offenses and minimum penalties;
- criminal procedures;
- cross-border cooperation, in particular between police and law enforcement agencies, including the exchange of information and the investigation of crime;
- EU agencies (Europol, Eurojust and the European Police College (CEPOL));
- agreements with third countries on information sharing, mutual legal assistance and extradition
The Commission’s list is not final
because between now and December 1st some of the measures could still be
replaced by texts currently under negotiation. Moreover the Commission has also
announced that some of them – which can be considered obsolete – will be
repealed.
…the problem of their transposition and
operability …
To assess the “operability” of these
measures the European Commission has to verify if they have been correctly
transposed by the Member States. The Commission is already collecting the
relevant information even if it is not yet entitled to open infringement
procedures in case of non compliance by the Member States.
It is worth recalling that in some
cases (such as for the European Arrest Warrant) the Commission has
already submitted several implementing reports. For other cases, the Commission
has only recently adressed to the Member States some pre-alert communications
which should be taken in account to avoid judicial proceedings after December
1st 2014.
The first pre-alert Commission report deals with the
Framework Decisions 2008/909/JHA, 2008/947/JHA and 2009/829/JHA on the mutual
recognition of judicial decisions on custodial sentences or measures
involving deprivation of liberty, on probation decisions and
alternative sanctions and on supervision measures as an
alternative to provisional detention. These Framework Decisions (FD) have to be
seen as a package of coherent and complementary legislation that addresses the
issue of detention of EU citizens in other Member States and has the
potential to lead to a reduction in pre-trial detention or to facilitate social
rehabilitation of prisoners in a cross border context.
The first FD (transfer
of Prisoners) allows a Member State to execute a prison sentence
issued by another Member State against a person who remains in the first Member
State. On the other hand, it establishes a system for transferring convicted
prisoners back to their Member State of nationality or habitual residence (or
to another Member State with which they have close ties) to serve their prison
sentence. Article 25 of the Transfer of Prisoners FD in conjunction with
Article 4(6) and 5(3) of the European arrest warrant, allows a Member State to
refuse to surrender its nationals or residents or persons staying in the latter
if the other Member State undertakes to enforce the prison sentence in
accordance with the same FD.
The second FD (Probation and
Alternative Sanctions) applies to many alternatives to custody and to
measures facilitating early release (e.g. an obligation not to enter certain
localities, to carry out community service or instructions relating to
residence or training or professional activities). The probation decision or
other alternative sanction can be executed in another Member State, as long as
the person concerned consents.
The third FD (European Supervision )
concerns provisional release in the pretrial stage. It will enable a
non-custodial supervision (e.g. an obligation to remain at a specified place or
an obligation to report at specified times to a specific authority) to be
transferred from the Member State where the non resident is suspected of having
committed an offense to the Member State where he normally resides. This will
allow a suspected person to be subjected to a supervision measure in his home
Member State until the trial takes place in another Member State, instead of
being placed into pre-trial detention.
It is worth recalling that at
the time of the Commission Communication, well after the relevant deadlines,
respectively 10, 14 and 16 Member States have not yet transposed the Framework
Decisions.
Another pre-alert Commission report deals with the implementation of the
Framework Decision 2008/675/JHA of 24 July 2008 on taking into account
of convictions in the Member States of the European Union in the course of new
criminal proceedings. This Framework Decision aims to ensure that similar
legal effects are given to domestic convictions and convictions from other
Member States. Its article 3 is based on the principle of simple assimilation
of convictions and imposes as a matter of principle that the legal effects of
foreign convictions must be equivalent to the legal effect of domestic
convictions. More than 3 years after the implementation date, 6 Member
States have yet to notify the measures transposing the obligations of this
Framework Decision: BE, ES, IT, LT, MT and PT.
A third pre-alert Commission report deals with the Framework Decision
2009/948/JHA of 30 November 2009 on prevention and settlement of conflicts
of jurisdiction in criminal proceedings. This FD addresses the situations
where potentially several Member States are competent to conduct criminal
investigations in respect of the crime and proceedings against the alleged
perpetrators. This poses challenges not only in terms of coordination and
effectiveness of criminal prosecutions, but also with regard to respect for the
fundamental principle of criminal law, also enshrined in the Charter of
Fundamental Rights of the European Union (“the Charter”), that a person may not
be prosecuted and convicted twice for the same offense (Ne bis in idem). More
than 1 year after the implementation date, 13 Member States yet to notify the
measures transposing the obligations of this Framework Decision: BG, DK, EE,
EL, ES, FR, IE, IT, LT, LU, MT, SE and the UK. Seven Member States
informed the Commission of the process of preparing relevant transposition
measures at national level (BG, EL, ES, FR, LT, MT and SE). However, none of
these Member States adopted the measures or notified the Commission at least
before April 2014.
In all these pre-alert Communications
the Commission has abundantly made clear that the non-implementation of
the Framework Decisions by some Member States is problematic since those Member
States who have properly implemented the Framework Decisions cannot benefit
from their co-operation provisions in their relations with those Member States
who did not implement them in time. As a consequence, when cooperating
with a Member State who did not implement in time, even those Member States who
did so will have to rely on the random and often lengthy practice of
traditional mutual legal assistance in criminal matters without a reliable
guarantee of a timely detection of bis in idem cases, which should already take
place at early stages of criminal proceedings. Such a practice increases
significantly a risk of double jeopardy.
…and the problem of their “coherence”
and compliance with the EU Charter.
But the priority for the EU legislator
in the coming months should be to verify if the former third pillar measures
which were negotiated without taking in account the now binding Fundamental
rights Charter are consistent with the new EU institutional and legal
framework.
Even if some scholars and politicians
try to sell the idea that there is a substantial continuity between the pre
Lisbon and Post Lisbon era this is certainly not the case for the AFSJ, where
the entry into force of the Charter has marked a clear change of perspective. A
proof of this has been recently offered by the recent CJEU jurisprudence in the
asylum domain where the presumption of compliance with fundamental rights by
another Member State has been considered rebuttable in circumstances where
fundamental rights are under threat (CJEU Judgment in NS) or to recall the data retention judgment, where the EU data retention Directive was annulled for violation of the principle of
proportionality and of the Charter. If this is the position of the CJEU how
many of the 123 measures in the Commission list will require a substantial
revision to be considered “coherent” with the new post – Lisbon legal and
constitutional framework?
Please don’t throw out real rights for
fake security…
Pre-Lisbon measures should also be
subject to the parliamentary scrutiny at European and national level as it is
required since five years by Article 70 of the TFEU. They should also be
effective as they can affect EU citizens’ security and fundamental rights.
However it is difficult to ascertain if the interference with EU citizens’
rights has been proportionnate and effective. As the post-Snowden saga has now
abundantly showed, “intelligence led policing” and “operational cooperation”
cover practices which can be extremely intrusive without offering clear results
to the European and/or to the national parliaments. Moreover what is even more
worrying is that parliamentarians do not examine whether their country is playing
any role in the so called EU “Internal security strategy” or in the “policy
cycle” which are less transparent than the “joint actions” negotiated under the
Maastricht regime… Are these “soft law” initiatives still justified forty years
after the first TREVI cooperation was launched in these domains? Or, after Lisbon, can the EU citizens expect
from the EU and its Member States a legislative framework which can at the same
time deliver effective security and protect fundamental rights?
This was announced by the new treaties
and by the Charter five years ago and what EU citizens are deemed to obtain; it
is then the duty of the incoming Commission and of the newly elected European
Parliament to do what the European Council didn’t dare to propose.
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