Strengthening Europol’s Mandate: An Appraisal of the Commission’s Proposal to Amend Regulation (EU) 2016/784 (Europol Regulation)

 

Niovi Vavoula and Valsamis Mitsilegas, Queen Mary University

 

Introduction

 

The European Union Agency for Law Enforcement Cooperation (Europol), the legal basis of which is Regulation (EU) 2016/794 (Europol Regulation), has a key role in supporting EU Member States on cross-border police cooperation. Europol is described as the EU’s ‘criminal information hub’, as it facilitates information exchange between Member States, Europol, other EU bodies, international organisations and third countries, and produces criminal intelligence on the basis of information acquired from various sources, including Member States and its partners. Amongst its many tasks, Europol also supports and coordinates cooperation on cross-border police work and produces regular assessments that offer comprehensive, forward-looking analyses of crime and terrorism in the EU.

 

On 9 December 2020, the Commission presented a proposal for a Regulation amending the Europol Regulation, accompanied by a two-part Impact Assessment, aiming at enhancing the Agency’s mandate in numerous respects. From the outset, it must be emphasised that the timing of the proposal is dubious, as the Europol Regulation has not been subject to an evaluation yet and according to Article 68, such evaluation was due in May 2022. Instead, scarce information is included in the Impact Assessment accompanying the proposal and some EU documentation, which, however, cannot replace the lack of a proper evaluation. As a result, the effectiveness and impact of the agency cannot be fully and properly assessed.

The proposal encompasses widespread reforms to Europol’s tasks, which may be divided in nine themes, as follows:

 

(1) Enabling Europol to cooperate effectively with private parties;

(2) Enabling Europol to process large and complex datasets;

(3) Strengthening Europol’s role on research and innovation;

(4) Enabling Europol to enter data into the Schengen Information System (SIS);

(5) Strengthening Europol’s cooperation with third countries;

(6) Strengthening Europol’s cooperation with the European Public Prosecutor’s Office (EPPO);

(7) Enabling Europol to request the initiation of an investigation of a crime affecting a common interest covered by an EU policy;

(8) Strengthening the data protection framework applicable to Europol; and

(9) Other provisions, including enhancing political accountability and parliamentary scrutiny.

 

This blog post aims to provide a snapshot of the proposal and highlight key privacy and data protection concerns by looking in turn into the thematic blocks. It is based on a study commissioned by the LIBE Committee of the European Parliament published on 27th May 2021, which argues that the proposed Regulation, as it stands, will radically transform the nature and powers of Europol and its relationship with key stakeholders without introducing adequate safeguards.

 

Enabling Europol to cooperate effectively with private parties

 

A first set of revisions concerns the enhancement of cooperation between Europol and private parties in countering criminal offences committed in abuse of the cross-border services of private parties. Currently, Europol is allowed to exchange personal data with private parties, but Article 26 of the Europol Regulation provides a series of restrictions: the traditional way for the agency to receive personal data from private parties is indirectly via competent intermediaries and Europol is prohibited from transferring personal data directly to private parties, unless one of the three exceptions applies. The proposal aims to establish the agency as a central point of contact in cases of multi-jurisdictional or non-attributable datasets,. Europol will be enabled to: (a) receive personal data directly from private parties on a more regular basis; (b) inform such private parties of missing information; and (c) ask Member States to request private parties to share further information. Additionally, Europol will be able to provide its infrastructure for the exchange of data between national authorities and private parties and support Member States in preventing large scale dissemination of terrorist content or violent extremism, on which Regulation (EU) 2021/784 was recently published.

 

These changes constitute a considerable paradigm shift for the agency, which is line with the emergence of the trend in past years, exemplified by the e-evidence legislative package, to establish direct channels of communication between law enforcement and private parties and foster a public/private partnership. Questions about the ability of private parties to undertake the role of law enforcement authorities in scrutinising fully and effectively the fundamental rights implications of transfer of personal data held by them for the purposes of law enforcement emerge, as Europol will be enabled to forward requests on behalf of Member States and proactively request information. Private parties do not enjoy equality with public authorities in terms of cooperation and the same will also apply in the case of Europol.

 

Therefore, they may find themselves in a subordinate position, being ‘cornered’ by both Europol and Member States to hand over the personal data requested. Important safeguards, in particular obtaining prior judicial authorisation and scrutiny of compliance with fundamental rights, risk being bypassed. Applying this approach to the case of Europol requires detailed rules on the duties of Europol, Member States and the private sector, e.g. when the private parties may refuse to cooperate, as well as provisions on independent authorisation of transfers and remedies for individuals, which are missing from the proposal. Even the concept of ‘private parties’ is open-ended and there are no limitations as to their nature. Whereas certain safeguards are included, e.g. the requirement for ‘absolute’ or ‘strict’ necessity, there are additional safeguards that are mentioned in the Impact Assessment, but not explicitly stated in the proposal. It is further argued that the European Data Protection Supervisor (EDPS) could be involved before the agency makes such transfers. In addition, whereas the proposal proscribes systematic, massive or structural transfers in cases where the private party is outside the EU, this is not extended to those private parties within the EU. Finally, it must be ensured that Europol’s role in supporting Member States to prevent the dissemination of online content related to terrorism and violent extremism conforms with the Europol’s role as foreseen in Regulation (EU) 2021/784 on preventing the dissemination of terrorist content online.

 

(2) Enabling Europol to process large and complex datasets

 

This reform aims to address the so-called ‘big data challenge’ following the admonishment of the agency by the EDPS on 17 September 2020. The proposal aims to enable Europol to conduct ‘pre-analyses’ of large and complex datasets received and identify whether these concern individuals whose personal data may be processed by Europol in line with Annex II of the Europol Regulation. Another proposed provision aims to enable the pre-analysis in support of a criminal investigation following transmission of an investigative case file to Europol.

 

Overall, it is welcome that the prior processing is limited to a maximum period of one year, which can be extended following authorisation by the EDPS. One suggestion is to define the terms ‘large datasets’ and ‘digital forensics’ and explicitly delimit processing when there is an objective necessity, which is not mentioned, so as to ensure that the derogation of Article 18(5a) does not become the rule. Clear criteria to determine that it is justified to extend the maximum period of pre-analysis must be laid down and it could be useful to consider that prior to each pre-analysis the EDPS must be at least informed and that the Europol Data Protection Officer must provide authorisation. The relationship between the new rules and the existing derogation under Article 18(6) of the Europol Regulation must also be clarified, as well as the relationship between the two new provisions foreseen. As these rules constitute an exception, their application must be strict and the existence of a link to an on-going investigation is crucial. In addition, the Regulation should lay down certain conditions and/or thresholds, such as scale, complexity, type or importance of investigations. Finally, the involvement of the EDPS not only in cases where an investigative case file is submitted by a third country, but in general in supervising the processing of large and complex datasets should be maintained and enhanced.

 

(3) Strengthening Europol’s role on research and innovation

 

The proposal foresees a greater role for Europol as regards processing of personal data for research and innovation matters for the development of tools, including the use of AI for law enforcement. One must be mindful though that when developing new technologies extensive processing of large quantities of personal data may be required, for example to create and test algorithms or for encryption. Therefore, the potential impact of such processing for research and innovation purposes to the principle of non-discrimination and the rights to respect for private life and protection of personal data must be guaranteed. The processing of personal data for research and innovation should take place only if needed in order to reach the objectives of the project. Furthermore, the processing of synthetic, anonymised or pseudo-anonymised personal data, as opposed to real operational data must be preferred, where possible, and the processing of special categories of personal data must be explicitly excluded or accompanied by additional safeguards. Moreover, principles of data protection law—in particular the principles of data minimisation, data quality and privacy by design and by default—must be taken into account.

 

(4) Enabling Europol to enter data into the Schengen Information System (SIS)

 

One of the thorniest aspects of the Europol reform concerns the possibility of enabling the agency to enter alerts into SIS. Currently, Europol has ‘read-only’ access to all types of alerts stored in SIS, both immigration and law enforcement related. The proposal creates a new alert category that Europol can use to enter alerts into SIS following consultation with the Member States and after authorisation by its Executive Director. A detailed process for the issuance of so-called ‘information alerts’ is foreseen in a separate proposal amending Regulation (EU) 2018/1862.

 

However, whether this power, which to an extent equates Europol with Member States, fits within Europol’s mandate, as laid down in Article 88 TFEU, is doubtful.  It is also questionable whether Europol will be able to conduct a proper quality check before issuing alerts into SIS. Importantly, the operational value of such alerts is also questionable, as the alerts will provide significant discretion to national authorities to follow up and wide divergences may arise in practice. The impact on individuals whose personal data will be inserted in SIS is significant and potential liability issues may also arise if the quality of data contained in the alert is not high. In light of the concerns voiced by a number of Member States within the Council, the Portuguese Presidency proposed an alternative to delimit these alerts to those concerning terrorism. However, it is feared that merely opening up Europol to SIS will become the gateway through which in the future Europol may acquire further powers to enter other types of alerts into the system (e.g. on missing persons).

 

(5) Strengthening Europol’s cooperation with third countries

 

Another important reform of the proposal concerns cooperation with third countries. Under the current legal framework, as laid down in Article 25(1) of the Europol Regulation, the agency may receive personal data from third countries based on: a) adequacy decisions under Directive (EU) 2016/680; b) international agreements under the current Regulation concluded in accordance with Article 218 TFEU; and c) cooperation agreements concluded between Europol and third countries under the previous Europol Council Decision (for the agreements, see here). Finally, the Executive Director can authorise the transfer of personal data to third countries and international organisations on a case-by-case basis for certain exceptional––but arguably broadly worded––reasons. With no adequacy decisions adopted and the negotiations for eight international agreements stalled, the calls for a less cumbersome regime for the exchange of personal data with third countries have proliferated. To that end, the proposal foresees a (seemingly minor) change enabling the Executive Director to authorise not only transfers, but also categories of transfers of personal data to third countries or international organisations in specific situations and on a case-by-case basis. However, it is not clear what exactly is meant by ‘categories of transfers’ and this reform may broaden the remit of such transfers from criminal investigations on specific suspects to surveillance activities in general, thus changing Europol’s powers.

 

That said, within the Council Member States have expressed their wish to further expand Europol’s capabilities to exchange personal data with third countries by transplanting the wording of Directive (EU) 2016/680 (Law Enforcement Directive) and Regulation (EU) 2018/1727 (Eurojust Regulation) to the Europol legal framework, and creating a new legal ground for exchanges of personal data on the basis of appropriate safeguards outside the three already prescribed grounds. This reform poses significant legal challenges as it bypasses existing institutional safeguards and undermines the importance of an adequacy decision, the procedure for assessing the data protection framework of a third country as adequate in violation of the constitutional limits placed by the Court of Justice of the EU (CJEU) in Schrems, as well as the institutional framework for adopting international agreements. The possibility of using bilateral agreements as the legal basis for such exchanges may result in divergences and different standards applied.

 

(6) Strengthening Europol’s cooperation with the European Public Prosecutor’s Office (EPPO)

 

This reform concerns the reinforcement of Europol’s cooperation with the EPPO in the aftermath of the adoption of Regulation (EU) 2017/1939 (EPPO Regulation) on the establishment of the EPPO. However, the proposal is not fully aligned with the rules of the EPPO Regulation and minor modifications to the text are necessary.

 

(7) Enabling Europol to request the initiation of an investigation of a crime affecting a common interest covered by an EU policy

 

The proposal aims to enable Europol to request competent authorities of a Member State to initiate, conduct or coordinate an investigation of a crime which affects a common interest covered by an EU policy regardless of the cross-border nature of the crime, for example in high profile sensitive cases such as the murder of Daphne Caruana Galizia in Malta. However, the necessity of this reform has not been substantiated and effectively removes control from judicial authorities over the opening of their investigations in cases affecting one Member State only.

 

(8) Strengthening the data protection framework applicable to Europol

 

A positive development of the proposal is the enhancement of Europol’s data protection framework by extending the reach of Article 3 and Chapter IX of Regulation (EU) 2018/1725 concerning the data protection framework applicable to the processing of personal data by EU institutions, bodies and agencies, to the work of Europol and explicitly adding biometric data within special categories of personal data, which was not the case. Whereas this is a welcomed reform, further alignment is necessary, not least because the EDPS’s general powers are still not aligned with the prescriptions of Article 58 of Regulation (EU) 2018/1725.

 

(9) Other provisions, including enhancing political accountability and parliamentary scrutiny

 

In addition to other minor reforms further expanding and clarifying Europol’s tasks, the proposal aims to enhance political accountability and parliamentary scrutiny by enabling the Joint Parliamentary Scrutiny Group (JPSG) to receive information regarding the matters falling under themes (1)-(4), as discussed above. Whereas this is a welcome development the proposal is a missed opportunity to further enhance political accountability and parliamentary scrutiny. Despite the establishment of the JPSG and the proposed amendments, parliamentary scrutiny and oversight remain weak. Shortcomings concern the structure and work of the JPSG, including the weak powers of the Group in the participation to and appointment of Europol’s Management Board. With the addition of new tasks to Europol, the need to ensure a better framework for parliamentary oversight and political scrutiny must be emphasised and therefore there is significant scope for improving the proposal in that respect.

 

Concluding remarks

 

The analysis above aimed to highlight that the proposal entails widespread reforms to Europol’s mandate, which transform the nature of the agency and its relationship with the Member States. The large majority of these reforms that enhance the data processing capacities of the agency have been met positively by the Council, which refined some provisions when it agreed its position on the proposal in June 2021. This massive expansion of Europol’s powers is explained; Europol’s ability to bring about results is tightly related to Member States’ input and participation and research shows the reluctance of national authorities that were, and are, sometimes not very keen to share their data with the agency. As a result, the proposal wishes to bypass such reluctance, by enabling the agency to directly ‘deal the cards’ and centralise information processing. At the same time, certain operational reforms, particularly the SIS-related ones, have been met with greater scepticism, albeit without an outright dismissal. At the time of writing, the Council is still scrutinising the proposal but a significant amount of work has already been conducted. It remains to be seen whether the Parliament will success in adding further safeguards to circumscribe these additional powers and enhance its own role.

 

Barnard & Peers: chapter 25

Photo credit: OSeveno, via Wikimedia Commons

 

H v Council: Another Court breakthrough in the Common Foreign and Security Policy

Graham Butler, PhD Fellow, Centre for Comparative and European Constitutional Studies, Faculty of Law, University of Copenhagen, Denmark

Introduction

This summer alone, the Court of Justice (‘the Court’) has issued two important decisions that will further shape the legal dimension of the Common Foreign and Security Policy (CFSP). Despite this largely intergovernmental sphere of law (the former Second Pillar) being merged into the unified ‘EU’ at the Treaty of Lisbon, the pillar’s shadow still lives on. Lasting evidence of CFSP as a separate but integrated sphere of law allow for it to be titled ‘CFSP law’, with judgments of the Court arising from interinstitutional and direct action litigation, permitting its legal development. The two judgments, Tanzania (Case C-263/14) and H v. Council (Case C-455/14 P) address different questions, and with a third, Rosneft (Case C-72/15), being delivered later in the year. This sequence of judgments demonstrates the fluidity of CFSP dynamics. In this blog post, analysis will focus on the H v. Council judgment, and specifically, given its peculiarity, the jurisdiction of the Court of Justice in CFSP.

Background

From a simple reading of the Treaties, it would be assumed that three individual articles pose problems for the Court of Justice’s jurisdiction is matters pertaining to CFSP.

Article 24(1) TEU states, ‘…The Court of Justice of the European Union shall not have jurisdiction with respect to these provisions, with the exception of its jurisdiction to monitor compliance with Article 40 of this Treaty and to review the legality of certain decisions as provided for by the second paragraph of Article 275 of the Treaty on the Functioning of the European Union.’

Article 40 TEU states, ‘The implementation of the common foreign and security policy shall not affect the application of the procedures and the extent of the powers of the institutions laid down by the Treaties for the exercise of the Union competences referred to in Articles 3 to 6 of the Treaty on the Functioning of the European Union. Similarly, the implementation of the policies listed in those Articles shall not affect the application of the procedures and the extent of the powers of the institutions laid down by the Treaties for the exercise of the Union competences under this Chapter.’

Article 275 TFEU states, ‘The Court of Justice of the European Union shall not have jurisdiction with respect to the provisions relating to the common foreign and security policy nor with respect to acts adopted on the basis of those provisions. However, the Court shall have jurisdiction to monitor compliance with Article 40 of the Treaty on European Union and to rule on proceedings, brought in accordance with the conditions laid down in the fourth paragraph of Article 263 of this Treaty, reviewing the legality of decisions providing for restrictive measures against natural or legal persons adopted by the Council on the basis of Chapter 2 of Title V of the Treaty on European Union.’

Generally therefore, it can be assumed that the there is no basis for the Court to possess jurisdiction in matters relating to CFSP, set out between Articles 21-46 TEU (‘Title V’). All relatively straightforward it would seem? Not necessarily so. In fact, the complexity of the rules, and the derogations set out are subject to varying interpretations which inevitably end up before the Court such as this case in point.

Pleadings

H v. Council (Case C-455/14 P) was an appeal of an Order by the General Court, concerning jurisdiction to rule on a staff dispute raised by an official serving the European Union Police Mission (EUPM) in Bosnia and Herzegovina (BiH). Initially, upon receipt of the case, the General Court made an Order on 10 July 2014 (Case T-271/10, H v. Council, ECLI:EU:T:2014:702) stating that the General Court had no jurisdiction on the matter given it was CFSP, thereby interpreting the Treaties provisions on lack of jurisdiction, Articles 24(1) TEU and Article 275 TFEU in a broad manner. H appealed the Order of the General Court to the Court, as H was of the view that the staffing issue within CFSP was an administrative act, and cannot be construed as to entail non-jurisdiction of the Court, notwithstanding the fact that the EUPM was formed on a CFSP legal basis. The case presented itself as another opportunity for the Court to refine what the extent of the jurisdiction of the Court is within the delicate field of CFSP.

In the General Court, both the Council and the Commission said the matter was CFSP, and therefore, pursuant to the second paragraph of Article 24(1) and the first paragraph of Article 275 TFEU, that the General Court did not possess any jurisdiction over it. On this point, the General Court agreed. H disagreed, and in this appeal, set out two pleadings. The Court of Justice only dealt with the second plea – the jurisdiction of the EU judiciary in matters pertaining to CFSP. Given its findings on the second ground of appeal on jurisdiction, it said there was no need to examine the first.

Judgment in H v. Council

Following the Opinion of Advocate-General Wahl delivered in April 2016, the Court of Justice delivered its judgment in July 2016. Whilst the Advocate-General said the General Court was right by saying the Court had no jurisdiction, the Court took a contrasting outlook to them both. Meeting in Grand Chamber, the Court acknowledged that, principally, it can be assumed that the jurisdiction of the Court does not extend to the CFSP provisions of the Treaties, known as Title V, or Articles 21-46 TEU. Whilst this was the case, the Court also said the general exclusion of the Court cannot extend to all aspects of CFSP. Based on this assertion, it can be assumed that acts adopted on a CFSP legal basis may come within the Court’s jurisdiction. In this case, this was despite the EUPM being grounded on a CFSP legal basis through Article 28 TEU and Article 43(2) TEU. The issue was therefore, should administrative decisions falling within the ‘day-to-day’ sphere of operations on the ground in the EUPM constitute non-jurisdiction of the Court?

Decision 2000/906/CFSP amongst other things, set outs the staffing arrangements for the EUPM. What is clear from the Decision is that staff on the ground in EUPM are all subject to the rules and the direction of the Civilian Operation Commander. This is sensical, given that the idea of senior officials not being in central control of all staff would be an operational and logistical nightmare. On closer inspection of the Decision however, the legal positions of positions are in fact distinct, in that some are seconded from national public bodies, and others are seconded from various EU institutions, agencies, and bodies. Despite this difference, the Decision allows for the coordination of day-to-day operations to cover ‘all’ staff. This is the tool that the Court uses to prise open jurisdiction for the matter at hand. Given that acts of staff management occurs in all EU public bodies, the Court noted that the CFSP Decision on staff arrangements within EUPM is similar to those exercised in EU institutions (paragraph 54). As a result, the Court believes that the derogations imposed on the Court’s jurisdiction in both Article 24(1) TEU and Article 275 TFEU cannot prevent the Court from exercising review over staff management in EUPM, notwithstanding the fact that EUPM is provided for by a CFSP legal basis.

This interpretation by the Court of Justice is not without further justification. Reliance is placed upon a Decision governing the statute, seat and operational rules of the European Defence Agency (EDA). The Council’s Decision on the EDA, 2015/1835/CFSP, confers jurisdiction upon the Court to adjudicate on matters relating to seconded national experts. Furthermore on judicial review, the Court said, ‘…the very existence of effective judicial review [is] designed to ensure compliance with provisions of EU Law…’ (paragraph 41). This not the first time that the Court has used ‘rule of law’ considerations in justifying allowances for judicial review. In addition, the Court stated that the issue in this case was redeployment, and not secondment itself, which it says the General Court mistook. Conclusively, the ‘no jurisdiction of the Court’ articles in the Treaties for CFSP does not mean everything in a CFSP mission is beyond the Court’s reach. The Court therefore concluded that the General Court erred in taking a broad view the Court’s principally excluded position.

Analysis

The Court’s judgment in H v. Council appears to be sound. To interpret all matters relating to CFSP missions, including the administrative, procedural, and operational issues as being ‘CFSP acts’ to escape judicial oversight of the EU judicial body would have been over-interpretation of the restrictions on the Court which have been set down by the Treaties. What construes a ‘CFSP act’ has gotten smaller as a result, as the Court took a narrow construal of what a CFSP act is, and the derogations imposed on the restrictive judicial review arrangements. The Treaties distinguish between acts of foreign policy, and implementing acts. Article 40 TEU states, ‘The implementation of…[CFSP] shall not affect the application of the procedures and the extent of the powers of the institutions laid down by the Treaties for the exercise of the Union competences…’. Even though implementing acts of foreign policy, it would be erroneous to construe all decisions of various importance within CFSP as ‘CFSP acts’, thereby excluding judicial review.

Notwithstanding the environment in which missions like EUPM operate, the Council’s argument that an operational issue in the context of security and defence should fall outside the EU judicature is not particularly strong. The Council has basically shot itself in the foot as a result of the EDA Decision last year. Perhaps without realising the full ramifications of Council Decision 2015/1835/CFSP in 2015, it is now having a spill-over effect. The Council itself trampled over its own arguments by granting the Court jurisdiction within one CFSP Decision on the EDA in 2015, but then trying to claim that it does not have the same adjudication powers within another early CFSP Decision on the EUPM. This argument wasn’t sustainable, which the Council would have realised when the Court likely queried the matter during oral hearing.

Conclusion

H v. Council is another case in a series of breakthroughs for the Court of Justice in CFSP. Just because a measure is concluded on a CFSP legal basis does not de-facto exclude the Court. The Court can use secondary Union law, a CFSP Decision, to prise open the jurisdictional bounds imposed on the former Second Pillar. The Mauritius (Case C-658/11) and Tanzania (Case C-263/14) cases have demonstrated that the Court has been strong on institutional procedure, and it is notable that the Court has opened up its jurisdiction in CFSP once again, without making use of Article 40 TEU – its ‘border policing’ provisions between CFSP and non-CFSP. The outcome of this case meant firstly, the General Court’s order finding of no jurisdiction has been set aside. The Statute of the Court (Article 61) permits it to send back cases to the General Court, for which it will be bound now on points of law that have been issued by the Court. Hence, the Court has bounced the issue back to the General Court to decide the case on matters of substance, now that its jurisdiction has been affirmed.

The forthcoming Rosneft judgment (Case C-72/15, Rosneft Oil Company OJSC v. Her Majesty’s Treasury and Others), a preliminary reference dealing with, amongst other things, the Court’s jurisdiction in CFSP, will be decided by the Court later this year, and will be keenly watched. (See discussion of the opinion in that case here). As time goes on, the two differing legal regimes of CFSP and non-CFSP on EU external action will continue, unless ‘splitting’ begins to become more commonplace, where EU measures are decided upon a dual legal basis. Until such a time when these issues of EU constitutional law are ironed out, the Court will continue to be asked detailed intricate questions about its jurisdiction in CFSP.

Barnard & Peers: chapter 10, chapter 24

Photo credit: www.dw.com

EU Referendum Brief 5: How would Brexit impact the UK’s involvement in EU policing and criminal law?

Professor Steve Peers

What impact does EU membership have on policing and criminal law in the UK – and what would be the impact of Brexit? I’ll give the shorter summary version of the answer to those questions first, followed by a longer more detailed version.

Summary

The UK had a veto over EU laws in this area adopted before the Treaty of Lisbon came into force (1 December 2009). Since then, it has had two opt-outs instead: a) it can opt in (or out) of any new EU law in this field adopted after that Treaty; and b) it could go back and opt out of any old EU laws which were adopted before that Treaty. The UK used the latter power to opt out of the majority of pre-Lisbon laws.

There are five main areas of EU criminal law and policing. One area is the definition of crime, where the UK has opted into a small number of EU laws on issues such as child abuse. A second area is criminal procedure, where the UK has opted into some EU laws on suspects’ rights and crime victims’ rights. These are basically domestic areas of law, and there’s no reason to think the UK would change its rules after Brexit.

However, the other three areas concern international cooperation, where it is impossible for any individual country to act alone. Those areas are: a) recognition of criminal decisions (on arrest warrants or gathering evidence, for instance); b) the exchange of police information; and c) EU agencies like Europol, the EU police intelligence agency.

On criminal law mutual recognition, there are other international rules on some of these issues – such as extradition – but they do not go as far as the EU rules. In some cases, there are no alternative international rules on the same issue. The UK could seek to negotiate a treaty with the EU on these issues, but the past precedents show that non-EU countries are able to negotiate only limited participation in these EU laws.

On EU agencies, non-EU countries can participate as associates, but this means a more limited involvement in each agency than they would have as EU Member States.

The UK’s involvement in police information exchange with the EU would also be subject to renegotiation if the UK left the EU. Again, past precedents show that non-EU countries are able to negotiate only limited participation in these EU laws. And if the UK did not continue to sign up to EU data protection laws fully, there would be difficult legal disputes that could limit the transfer of policing data to the UK’s law enforcement authorities from the EU.

It cannot be seriously argued that the UK has ‘lost control’ over its law enforcement and intelligence agency operations to the EU, given the UK’s opt-out, the focus of EU law on cross-border issues, and the lack of any EU law on intelligence issues.

Overall, a Brexit is very likely to lead to a significant reduction on cooperation in criminal and policing matters between the UK and the EU.

The details

First and foremost, while the EU has adopted a number of laws in this area, the UK only participates in some of those laws, and has an opt-out over future laws in this area too. This blog post will in turn: (a) describe the basics of EU law in this area, including the UK opt-out; (b) summarise the main EU laws in which the UK does (or does not) participate in; and (c) indicate what could happen in the event of ‘Brexit’. For a full academic treatment of these issues, see the fourth edition of my EU Justice and Home Affairs Law book (volume 2).

(a) The basics of EU policing and criminal law 

Before the entry into force of the Treaty of Lisbon (on 1 December 2009) police and criminal law matters were subject to a different legal framework from ordinary EU (or European Community) law. The powers of the EU institutions (Commission, European Parliament, EU Court) were more limited, and each Member State, including the UK, had a veto over all laws.

The Treaty of Lisbon repealed these special rules, bringing EU criminal and policing law into the general framework of EU law. From this point on, the usual rules of EU law have applied to this field, with a few exceptions. However, the key point for the UK is that in place of a veto, it got not just one but two opt outs from EU law in this field.

First, the UK can opt out of (or into) any individual EU laws on criminal law or policing proposed after the entry into force of the Treaty of Lisbon.

Secondly, the UK got the power to opt out of EU criminal laws which it had already agreed to before the entry into force of the Treaty of Lisbon. It could invoke this power as of 1 December 2014. The UK government used this to opt out of all but 35 of the EU criminal laws adopted before the Treaty of Lisbon. (See the discussion of that process here).

(b) Which EU criminal and policing laws does the UK apply?

EU criminal and policing law touches on five main issues:

(a)    substantive criminal law (ie the definition of crimes);

(b)   mutual recognition in criminal matters (ie applying another EU Member States’ criminal law decision, where there is a cross-border issue like gathering evidence in another EU country, or asking another country to hand over a fugitive to face a trial or serve a sentence);

(c)    harmonisation of criminal procedure;

(d)   exchange of police information; and

(e)   EU agencies.

The effect of the two sets of opt-outs is that the UK has been highly selective about the EU law in this area which it wishes to apply. Taking the five areas of law in turn, first of all the UK has opted out of almost all EU substantive criminal law. It is covered by the EU Directives adopted since the Lisbon Treaty defining offences relating to trafficking in persons, sexual abuse of children and attacks on information systems (a form of cyber-crime), but not by EU laws defining offences relating to terrorism, organised crime, fraud, drugs, market abuse by bankers, racism, or currency counterfeiting. 

Secondly, the UK is far more engaged in mutual recognition in criminal matters, in particular the flagship law on the European Arrest Warrant (EAW), which is a fast-track extradition system. The UK has also signed up to EU laws on:

(a)    mutual recognition of investigation orders (gathering physical evidence, or interviewing witnesses, in another EU country);

(b)   victim protection orders (where the victim of domestic violence moves to another EU country and wants a restraining order against her abuser to be transferred to that country when she moves there);

(c)    pre-trial supervision (so a criminal suspect can be released on bail to await trial on less serious offences back in Britain, rather than spend a long time in pre-trial detention in a foreign prison);

(d)   confiscation of assets and freezing orders (to ensure that the proceeds of crime held by alleged or convicted criminals in another EU country can be frozen pending trial, and seized if the suspect is convicted);

(e)   the effect of prior sentences or other judgments (so that previous criminal offences committed in another EU country are counted when assessing whether someone is a repeat offender); and

(f)     the transfer of prisoners and criminal sentences (simplifying the movement of foreign prisoners to jails in their EU country of origin, and recognizing fines imposed by a criminal court too – including any penalties imposed against companies for breach of criminal law).

Conversely, the UK has opted out of only one measure in this field, concerning the mutual recognition of probation and parole orders.

Thirdly, as regards the harmonisation of criminal procedure, the UK participates in the EU Directive on crime victims’ rights. However, the UK has only opted in to two of the six EU laws which set out criminal suspects’ procedural rights. In particular, it has opted into the laws on translation and interpretation, and giving suspects information on their rights; but it has opted out of laws on access to a lawyer, presumption of innocence, child suspects’ rights, and a proposed law on legal aid (not yet agreed).

Fourthly, the UK is particularly keen to participate in the exchange of police information. It participates in every significant measure in the field:

(a)    the Schengen Information System (information on wanted persons and stolen objects, including terrorist suspects under surveillance);

(b)   the Customs Information System (used particularly in drug trafficking cases);

(c)    the ‘Prum’ decisions (which give access to other EU countries’ police databases on fingerprints, licence plates and DNA); and

(d)   the laws on exchange of criminal records.

Finally, as regards EU agencies, the UK participates in Europol (the EU police intelligence agency) and Eurojust (the agency which coordinates work of prosecutors in cross-border cases) at present. However, it has opted out of a new law concerning Europol, and a proposed new EU law concerning Eurojust, which set out (or would set out) revised rules for those agencies following the entry into force of the Treaty of Lisbon, although it might decide to opt in to those Regulations after they are adopted. The UK used to host the European Police College (a training agency), but refused to continue hosting it and opted out of a new version of the relevant law.

There has been some concern particularly about the prospect of the UK participating in a law to create a European Public Prosecutor. While the EU Commission proposed a law to create a European Public Prosecutor in 2013, the UK has opted out of that proposal. Indeed, the UK would have to hold another referendum before it opted in to that law, according to the European Union Act 2011.

(c) What would the impact of ‘Brexit’ be?

It’s sometimes argued that EU laws on policing and criminal law are irrelevant to the UK’s membership of the EU, because the UK can simply do everything it wishes to do in this field in its domestic law. That’s a valid argument for two of the five areas of law described above: substantive criminal law and harmonisation of procedure. But it doesn’t work for the three other areas – mutual recognition, exchange of information and participation in EU agencies – which necessarily require some cooperation with other states. Put simply, a British Act of Parliament cannot regulate how France or Germany issue extradition requests.

What would happen if the UK left the EU? In each case, as with other areas of EU law and policy, it would depend on what the UK and EU negotiated afterward. But it is possible to give some general indication of the consequences.

In the area of mutual recognition, the UK can fall back on Council of Europe treaties, which address some of the same issues (note that the Council of Europe is a separate body from the EU, which includes non-EU European countries like Turkey and Russia; some of its treaties can be signed also by non-European states like the USA).

However, the relevant treaties do not go into as much detail as the EU laws, and are often less effective.  As an indication of this, see the UK government information about the application of EU law in this area. Extradition from the UK has gone from 60 people a year (to all countries) before 2004 to 7000 since 2004 on the basis of the European Arrest Warrant. Over 95% of those sent to other Member States are not British.

Moreover, in some cases the UK and/or some other Member States have not ratified the relevant treaties. For instance, fewer than half of all Member States have ratified the Council of Europe Convention on validity of criminal judgments; the UK has not ratified it either. But the EU law on mutual recognition of criminal penalties sets out rules on one of the key issues in that Council of Europe treaty: the recognition of criminal financial penalties imposed by another Member State’s court. Some issues have not been the subject of Council of Europe treaties at all, such as the pre-trial supervision rules set out in EU law. In these cases, the EU law is the only means of ensuring the cooperation in question.

Another alternative is to negotiate treaties with the EU on these issues.  The EU has been willing in practice to negotiate access to some aspects of its criminal law measures: a form of the EAW for Norway and Iceland, an extradition treaty with the USA, and mutual assistance (exchange of evidence) with Norway and Iceland, the USA and Japan. But the extradition treaty with Norway and Iceland took years to negotiate, is still not in force at time of writing, and does not oblige States to extradite their own citizens – meaning that the UK would not be able to ask Germany to extradite Germans, for example. That restriction cannot easily be negotiated away in the event of Brexit, because some EU countries have constitutional problems which prevent them extraditing their own citizens outside the EU. (On these sorts of issues, see E Guild, ed, Constitutional challenges to the European Arrest Warrant).

Overall, there are no such treaties agreed with any non-EU countries on the large majority of EU criminal law mutual recognition measures. Of the treaties which are agreed, not a single one goes as far as the relevant EU legislation in force.

A particular concern of critics of the EU rules on extradition is the ‘sufficient evidence’ (‘prima facie’) test which was traditionally applied by the UK before accepting an extradition request. While it is sometimes argued that the EAW abolished the ‘prima facie’ test as regards EU countries, this is not correct. In fact, the UK waived the right to apply this test to European countries when it signed up to the Council of Europe extradition treaty back in 1990, over a decade before it signed up to the EU’s EAW: see the Extradition Act 1989, section 9(4), which was implemented by the European Convention on Extradition Order 1990 (SI 1990 No. 1507). In other words, the test was not abolished because of EU law, but was already abolished well before the EU had any involvement in extradition law.

Why did the UK abolish the prima facie test? As noted in the 2011 Baker review of UK extradition law, the decision was made because of the difficulties it posed for extradition in practice: a White Paper of 1986 stated that it ‘did not offer a necessary safeguard for the person sought by the requesting State but was a formidable impediment to entirely proper and legitimate extradition requests’. Ultimately the Baker review recommended that there was ‘no good reason to re-introduce the prima facie case requirement’ where it had been abolished, and that ‘No evidence was presented to us to suggest that European arrest warrants are being issued in cases where there is insufficient evidence’.

The prima facie test is sometimes described as an aspect of the ‘presumption of innocence’, although in fact a fugitive who is extradited pursuant to this test still either has to be convicted pursuant to a trial in the requesting State, or has already been convicted but fled the country. In other words, the presumption of innocence still applies when the substantive criminal trial takes place (or took place).

As regards the EU agencies, the UK can enter into agreements to cooperate with Europol and Eurojust, like other non-EU countries. However, as the Director of Europol points out, such agreements don’t allow the UK to have direct access to databases, to lead investigation teams, or to take part in the management of those agencies: both Europol and Eurojust have had British Directors.

Finally, as regards policing, the EU has given some non-EU states access to the Schengen Information System, and to the ‘Prum’ rules on access to each Member State’s national policing databases. But this was linked to those countries fully joining the Schengen system. The UK would obviously not do that after a Brexit.

The EU has also signed treaties on the exchange of passenger name records with non-EU countries (the USA, Canada and Australia), as well as a treaty on the exchange of financial information (concerning alleged terrorists) with the USA, so might be willing to sign similar treaties with the UK. It has also recently agreed an ‘umbrella’ treaty on general exchange of police information with the USA, although this is not yet in force.

However, the EU has not extended access to its system on exchange of criminal records to any non-EU countries. While there is a Council of Europe treaty on mutual assistance in criminal matters (which the UK and all other Member States are party to) that provides for some exchange of information of such records, it results in far less information exchange. The exchange of criminal records is particularly important for the UK: the government has reported that the UK is one of the biggest users of the EU system, and that criminal records checks of foreign nationals in the criminal justice system have increased 1,650% since 2010.

However, there is a particular issue that has complicated the exchange of personal data between the EU and with non-EU countries, particularly as regards policing data. Are their data protection standards sufficient as compared to the standards maintained by the EU? If not, then the European Parliament may be reluctant to approve the deal, or it might be challenged in the EU Court. This isn’t a hypothetical possibility – it has happened several times already.

I have discussed this issue in more detail in a recent blog post for The Conversation, but I will summarise the main points there again. As regards deals between non-EU countries and the EU itself, the EU Court of Justice has struck down a Commission decision on the transfer of personal data to the USA, because there was insufficient examination of the data protection standards applied by US intelligence agencies as regards access to personal data on social media. A replacement deal is planned, but will also be challenged in court. A further case is pending, where the EU Court has been asked to rule on the legality of the most recent EU/Canada treaty on the exchange of passenger records data, to ascertain if it meets EU standards for data protection.   

If the UK left the EU, any UK/EU agreement on the transfer of personal data would have to meet the same requirements. Those requirements cannot simply be negotiated away, since they stem from the EU Charter of Rights – part of the primary law of the EU. The Charter can be amended, but to have legal effect the EU Treaties would also have to be amended to refer to that revised text. It is hard to believe this could happen at the behest of a country which has just left the EU.

Would UK legislation meet the test of being sufficiently similar to EU standards? The Court of Justice has been asked in the pending Davis and Watson case whether the rules on police access to personal data comply with the EU law that binds the UK as a Member State. Another Bill on this issue is pending before the UK Parliament, and would likely become an Act of Parliament before Brexit. Since many privacy campaigners are critical the draft Bill, there would almost certainly be similar legal challenges to transfers of personal data to and from the UK after Brexit, unless the UK agrees to continue fully applying EU data protection law.

(d) Arguments by the referendum campaigns

The official leaflet summarising the position of the two sides in the referendum campaign contains a number of relevant claims from each side. For the Remain side, the pamphlet says that the EAW ‘allows us to deport criminals from the UK and catch those fleeing justice across Europe’, and that EU membership helps to tackle ‘global threats like terrorism’. For the Leave side, the pamphlet says that the EU ‘will continue to control…vital security policies such as counter-terrorism’ and the EU Court ‘will keep taking powers over how our intelligence services fight terrorism’.

Are these claims valid? As for the first Remain claim, as noted above the statistics show that the number of persons extradited to and from the UK have indeed increased since the EAW has been applied – although some extradition would still take place even if the UK did not apply the EAW.

In light of the official UK government information referred to above, other operational cooperation via Europol and other forms of EU police and criminal law cooperation presumably has some impact on combating threats like terrorism and other serious crimes in practice. However, it is not possible to estimate their impact compared to purely national actions and other forms of international  cooperation.

As for the arguments by the Leave side, it is clear from the description of the laws which the UK applies that the EU does not ‘control…vital security policies’. The functioning of the UK law enforcement authorities is up to the UK, and there is no EU regulation of intelligence agencies. EU law impacts only cross-border issues.

As we have seen, the only EU case law to date impacting intelligence agencies concerns non-EU intelligence agencies. The ruling restricts transfers of data gathered by social networks to those non-EU countries in that context, unless those countries apply EU data protection law. If the UK left the EU, it would therefore be subject to the same restrictions on obtaining personal data in criminal cases from the EU. Leaving the EU is therefore more likely to impede UK intelligence agencies’ work, than it is to facilitate it. 

Conclusion

The UK’s participation in EU criminal and policing law has led to an increase in cooperation in areas such as extradition and the exchange of police information. In these cases, there are question marks about what would happen after Brexit – mainly political but to some extent legal too. In the event of Brexit, there is a very high likelihood that cooperation between the UK and the remaining EU would be reduced (although not to zero). And in light of the UK’s opt-outs and the limited effect of EU law on purely domestic matters, it cannot seriously be argued that UK law enforcement and intelligence agencies are ‘controlled by’ the EU.  

JHA4: chapter II:3, chapter II:4, chapter II:7

Barnard & Peers: chapter 25

Photo credit: calvinayre.com

The difference between torture and other ill-treatment: Cestaro v. Italy and the “prohibited purpose” requirement

 

Christina Kosin (LL.M. Edinburgh) Ph.D. candidate and academic assistant at the German Police University

What is the central element which distinguishes torture from inhuman or degrading treatment or punishment? Some scholars claim that the “prohibited purpose” requirement of the torture definition is the most central as well as the only criterion which is decisive in differentiating between that crime and other forms of ill-treatment.. However, in my view this is incorrect, and indeed the recent judgment of the European Court of Human Rights in Cestaro v. Italy shows (once again) that the “prohibited purpose” component of torture is not the only decisive criterion in distinguishing the crime from other inhuman or degrading treatment or punishment.

The judgment

Mr Cestaro was among the protesters surrounding the G-8 summit in Genoa, Italy from 21^st to 22^nd July 2001 (para. 7). On the first day of the summit of the world’s leading industrial States around 100,000 protesters gathered and demonstrated against globalisation (para. 19). Various radical groups such as the so-called “black blocks” were amongst the peaceful anti-globalisation protesters and engaged in violent and/or criminal conduct such as the looting of the city (para. 12). During the two days of incidents, hundreds of protesters and police forces were injured and one young person died (paras. 18-21). From the 21^st to 22^nd July 2001, Mr Cestaro and other protesters were housed in a school, which was stormed by the Italian police at that time. Mr Cestaro and others were brutally ill-treated while peacefully and legally lodging in the school (para. 182). The actual aim of the police mission was to search the school for evidence that could lead to the identification and possible arrest of members of the “black blocks” (para. 182). Mr Cestaro was subjected to repeated kicks and beatings with the tonfa, which is considered a potentially lethal weapon. As a result, Mr Cestaro suffered multiple fractures and a permanent impediment in his right arm and right leg (para. 178). The ECtHR ruled that the treatment by the police amounted to torture.

Ultimately he challenged the Italian state before the European Court of Human Rights (ECtHR), which issued its judgment in the case on 7 April. He alleged that Italy had committed a material and procedural breach of Article 3 of the ECHR, which states that “[n]o one shall be subjected to torture or to inhuman or degrading treatment or punishment”. Neither torture nor the terms “inhuman or degrading treatment or punishment” are defined in the Convention. The Court’s practice has shown that it understands torture as defined in Article 1 (1) in the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (UNCAT). According to this definition, torture needs to be inflicted on a person

“for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind”.

This is the so known “prohibited purpose” requirement. Next to this, there are four more elements of the UNCAT torture definition namely (1) the act must be inflicted intentional, (2) the act must cause severe, physical or mental, pain or suffering, (3) the treatment must be inflicted by or at the instigation of or with the consent of or acquiescence of a public official or other person acting in an official capacity and (4) pain arising out of lawful sanctions is not included.

The issue at hand is that the prohibited purpose requirement is mistaken for the only criterion which is able to differentiate between torture and less serious ill-treatment. This confusion arose because of various reasons. The European Commission on Human Rights, which used to rule on cases together with the ECtHR, stipulated in the 1969 Greek case that torture “is often used to describe inhuman treatment, which has a purpose, such as the obtaining of information or confessions, or the infliction of punishment” (p. 186). This was interpreted to mean that the purpose requirement is the distinguishing element between torture and inhuman or degrading treatment or punishment while the other elements remain static. Further, the ECtHR has never classified a treatment which lacked the purpose requirement as torture. In addition, some scholars claim that the drafting history of the UNCAT, the travaux préparatoires, indicates that this criterion is the sole distinguishing factor between the two forms of ill-treatment. Although these reasons sound compelling, the interpretation was wrong and the prohibited purpose requirement is not the sole decisive factor as is shown below.

In section “Aperçu de la jurisprudence en matière de « torture » “, the Court provided a brief overview of its jurisprudence concerning Article 3. In the subsequent section “Application en l’espèce”, the ECtHR applied the facts to the case. Both sections elucidate that the prohibited purpose criterion is a vital but not the only requirement to differentiate torture from inhuman or degrading treatment or punishment.

In the former section, the Court did not highlight the ostensible uniqueness of the prohibited purpose requirement. Rather, the Court showed that different criteria of the treatment can be decisive in classifying an act as torture. The Court highlighted that torture can be distinguished from other ill-treatment by the special stigma which is attached to the crime – torture implies very serious and cruel pain and suffering as well as the deliberate/intentional infliction of such pain. In the Court’s words, “[o]utre la gravité des traitmens, la « torture » implique une volonté délibérée.”  (para. 171).

Then, the Court referred to cases in which it found a combination of the gravity of the treatment and the intentional element such as in Aksoy v. Turkey and Yaman v. Turkey (para. 172). In this context the ECtHR noted that all these cases contained a purpose to obtain information, to punish somebody or to intimidate the person (para. 172). This is the first time the ECtHR mentioned the element of the prohibited purpose. The ECtHR further elucidated that it put a special weight on the severity of the pain in some cases such as Aslan v. Turkey or on the arbitrariness of the violence in other cases such as in Romanov v. Russia (para. 173-174). Towards the end of this section the Court explained that it did not classify some police actions as torture such as in Krastanov v. Bulgaria as the prohibited purpose element was missing and because the pain was inflicted for a short duration only (para. 175). This constitutes the second time when the Court mentioned the purpose criterion. Lastly, the Court stipulated that some cases such as Gäfgen did not constitute torture because the level of cruelty required was not reached (para. 176).

The ECtHR clearly revealed that various components can determine whether a particular treatment constitutes torture or inhuman or degrading treatment or punishment: the gravity of the treatment, the intentional infliction of the treatment, the severity of the pain, the arbitrariness of the violence, the prohibited purpose, the duration of the treatment and the level of cruelty of the act. The Court did not classify these examples as exhaustive and one can assume that other factors of the treatment as well can trigger a distinction between torture and other forms of ill-treatment. The prohibited purpose criterion of the UNCAT torture definition is not the only decisive factor.

In the section “Application en l’espèce”, the ECtHR provided reasons for classifying the treatment by the police as torture. In its reasoning, the Court did not explicitly state which element of the conduct by the police was decisive for classifying the violence as torture and not inhuman or degrading treatment. The arguments by the ECtHR suggest that a variety of characteristics of the treatment contributed to the Court’s decision.

The Court put forward that the pain was inflicted by the police with the purpose to punish and to retaliate and with the aim to cause pain and suffering (para. 177). The prohibited purpose by the police was hence to punish and retaliate. This is the first and last time that the ECtHR referred to the purpose requirement in this section. The Court noted that there is no denying that the pain and suffering was of particular seriousness and cruelty (para. 179). As mentioned above, the applicant suffered from a permanent impediment resulting out of the beatings he received. Further, it was stated that there was no link between the applicant’s conduct and the force used by the police. The Court emphasised that Mr Cestaro did not resist in any way and that the infliction of pain was thus disproportionate (para. 180).

Although the mission of the police was to search the school, the public officials immediately used force (paras. 180-182). Instead of trying to enter the building peacefully and negotiate with the protesters, the police stormed the building by breaking down the gates and promptly used violence against the protestors (para. 183). The Court then went on and stressed that the police tried to justify its actions by arguments such as the protection of the nation was at stake (para.184-185). It is indeed true that the 21^st July was marked by heavy violence through the looting and devastation of the city of Genoa (para. 20). One can imagine that the police was under paramount pressure and strain throughout the whole day. The Court, however, correctly observed that the situation in the school was entirely different as the protesters were calm and did not resist the violence of the police (para. 186). Based on these grounds the Court reached the conclusion that the treatment by the police amounted to torture as understood in Article 3 ECHR (para. 190). The ECtHR put forward several reasons for classifying the treatment by the police as torture but it did not single out one specific factor. It seems that the immediate, disproportionate and serious infliction of pain was vital for the Court to arrive at its decision. The prohibited purpose criterion was not the triggering criterion in this case.

Comments

The Cestaro v. Italy case shows that the prohibited purpose element in the UNCAT definition is not the sole criterion which distinguishes torture from other inhuman or degrading treatment or punishment. The presumption that the purpose requirement is the most important feature of torture does not automatically mean that it is the only one.

As indicated at the outset, Cestaro v. Italy is not the first case which revealed that the prohibited purpose requirement is not the sole factor able to distinguish between both crimes in the UNCAT. In the case Ireland v. the UK in 1978, the ECtHR ruled that the five techniques employed by the British forces did not constitute torture because they did not reach the level of cruelty and intensity as implied by the term (para. 167). In Selmouni v. France 1999 the Court reached a judgment on similar grounds. The ECtHR stated that the victim was subjected to torture because the pain and suffering was of particular seriousness and cruelty (para. 101-105). In Romanov v. Russia 2002, the Strasbourg Court found a multitude of reasons why the treatment by the prison wards constituted torture. However, it put a special emphasise on the arbitrariness of the beatings the victim received (para. 70).

These cases already revealed that other factors than the purpose requirement can make a difference between torture and inhuman or degrading treatment or punishment. Nevertheless, some still claim that only the purpose requirement can be decisive. They base their arguments on the travaux préparatoires of the UNCAT as well as old case law from different treaty bodies. The Cestaro v. Italy case reiterates that the prohibited purpose criterion is not the sole element which is capable of differentiating between torture and other ill-treatment.

One can now assume that the consequences flowing from this case and other similar jurisprudence of the ECtHR, will mainly concern theoretical discussions among legal scholars. The consequence could, however, have negative effects beyond that. The Strasbourg Court is not the only organ which uses the UNCAT definition of torture in its cases concerning violations of Article 3 ECHR. The Committee Against Torture (CAT) as well as the Human Rights Committee (HRC) provide decisions on the basis of Article 1 (1) UNCAT. The former body applies and interprets the UNCAT and the latter body enforces the International Covenant for Civil and Political Rights (ICCPR). If the ECtHR, the CAT and the HRC use different grounds for distinguishing torture from other ill-treatment, this could shed a negative light on the consistency and the trustworthiness of these bodies. Considering that the ban on torture is international, the jurisprudence should be consistent as well – at least with regard to the most important and international bodies which decide on torture cases, should it not? In the worst case scenario, the victims of torture could additionally suffer from legal uncertainty.

 

Barnard & Peers: chapter 9