Belgium

ISBN 978-3-7083-1040-4

ISBN 978-1-78068-337-9

2014 was a year of transition and controversy in Europe: a new Parliament and new Commission were constituted and Opinion 2/13 of the Court of Justice of the European Union on the EU’s accession to the European Convention on Human Rights raised serious questions about the coherence and future character of the human rights protection regimes in Europe. Across 38 contributions by 61 authors in five sections, the European Yearbook on Human Rights 2015 explains and contextualizes key developments in human rights and provides much needed analysis. Edited jointly by representatives of four major European human rights research, teaching and training institutions, the Yearbook 2015 covers political and legal developments in the field of the three main organizations charged with securing human rights in Europe: EU, Council of Europe and OSCE, accompanied by a chapter on cross-cutting topics. Now in its seventh edition, the Yearbook remains essential reading for anyone interested in human rights in Europe and the world.

Benedek/Benoît-Rohmer/Kettemann/Kneihs/Nowak (Eds.) European Yearbook on Human Rights

YB 15

Austria

Yearbook Recht

European Yearbook on Human Rights edited by Wolfgang Benedek Florence Benoît-Rohmer Matthias C. Kettemann Benjamin Kneihs Manfred Nowak

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Table of Contents

Editors’ Preface .................................................................................................... 7 Abbreviations ...................................................................................................... 17

I

Topics of the Year ................................................................ 25

Paul GRAGL

The Reasonableness of Jealousy: Opinion 2/13 and EU Accession to the ECHR ............................................................................. 27 Elisabeth STEINER and Ioana RĂTESCU

The Long Way to Strasbourg – The Impact of the CJEU’s Opinion on the EU’s Accession to the ECHR ........................................................ 51 Maria BERGER und Clara RAUCHEGGER

Opinion 2/13: Multiple Obstacles to the Accession of the EU to the ECHR .................................................................................................... 61

II European Union .................................................................... 77 Wolfgang BENEDEK

EU Human and Fundamental Rights Action in 2014 .............................. 79 Hans-Peter FOLZ

The Court of Justice of the European Union and Human Rights in 2013-2014 .................................................................................................. 105 Theodor RATHGEBER

Human Rights à la Carte: The EU at the UN Human Rights Council in 2014......................................................................................... 125 Gosia PEARSON

Assessment of the Implementation of the EU Human Rights Strategy and Action Plan as Regard Business and Human Rights .... 135

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Table of Contents

Valentina CAGNIN

The Potential Role of the Horizontal Social Clause (Article 9 TFEU) on Social Rights Protection ........................................................ 143 Karin LUKAS

The EU Charter of Fundamental Rights and the European Social Charter – an Alliance for Social Rights?................................................ 153 Ewelina TYLEC

The Influence of Economic Crisis on Fundamental Rights in the European Union: A Step Forward or Step Backwards? ....................... 165 Moritz BIRK and Gerrit ZACH

Torture Prevention in the EU – Many Actors, Few Outcomes? ........... 175 Grazia REDOLFI

European Union’s Attitude Towards Reproductive Rights: Clear Policy or Double Standards Approach ................................................. 189 Denise VENTURI

The Body as an Instrument of Border Control: Remarks on Age Assessment for Unaccompanied Migrant Children ............................. 201 Rocío ALAMILLOS SÁNCHEZ

EU Sanctions Policy: A New Human Rights Tool? The Case of Belarus ..................................................................................................... 213 Nicolas HACHEZ and Jan WOUTERS

Introducing FRAME: A Large-Scale Research Project on the European Union and Human Rights ...................................................... 227 Katharina HÄUSLER and Alexandra TIMMER

Human Rights, Democracy and Rule of Law in EU External Action: Conceptualization and Practice ............................................... 231 Balázs MAJTÉNYI

The Nation’s Will as Trump in the Hungarian Fundamental Law ........ 247 Felipe GÓMEZ ISA and María NAGORE CASAS

EU Member States Under the Universal Periodic Review of the Human Rights Council: Achievements and Challenges ...................... 261

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Carolina PAVESE, Jan WOUTERS and Katrien MEUWISSEN

The European Union and Brazil in the Quest for the Global Promotion of Human Rights: Prospects for a Strategic Partnership .............................................................................................. 279 Viljam ENGSTRÖM and Mikaela HEIKKILÄ

Lisbonising Back and Forth? Strategic Planning and Fundamental Rights in the AFSJ ............................................................ 295 Veronika APOSTOLOVSKI, Isabella MEIER, Markus MÖSTL, Klaus STARL and Maddalena VIVONA

Measuring Human Rights in EU Practice: Realities and Requirements ........................................................................................... 307

III Council of Europe .............................................................. 317 Brigitte OHMS, Dominik HAIDER, Elisabeth HANDL-PETZ, Martina LAIS and Sebastian SCHOLZ

The Jurisprudence of the European Court of Human Rights in 2014: A Year of Consolidation ................................................................ 319 Amalie BANG

Recent Developments in Whistleblower Protection in Europe ........... 343 Jonas GRIMHEDEN and Gabriel N. TOGGENBURG

Fundamental Rights in EU Criminal Justice Instruments: How to Best Make the Glass Slipper Fit? ........................................................... 355 Adina PORTARU

The “Rights and Freedoms of Others” vs. Religious Manifestations: Who Wins at the ECtHR? ............................................. 367 Zane RATNIECE and Kushtrim ISTREFI

The Limits of the Strasbourg Court’s Two-Level Harmonization Approach vis-à-vis SC Resolutions in Al-Dulimi .................................. 379 Philip CZECH

European Human Rights in International Military Operations ............. 391 Sarah LAMBRECHT

The Brexit Scenario: Potential Consequences of a Withdrawal of the UK from the European Convention on Human Rights .................. 407 13

Table of Contents

IV OSCE.................................................................................... 421 Manfred NOWAK

Torture, Enforced Disappearances and Extrajudicial Killings in the OSCE Region ..................................................................................... 423 Eva Katinka SCHMIDT and Vasily VASHCHANKA

Judicial Performance Evaluation and Judicial Independence: International Standards for an Appropriate Balance ............................ 435 Irina URUMOVA

The Role of Social Inclusion in Preventing Victimization: What We Know and What We Don’t Know ...................................................... 445 Lucile SENGLER

Foreign Terrorist Fighters: A Human Rights Perspective.................... 453 Martina ORLANDI

Wartime Sexual Violence: The Route to Accountability Between International Justice and Political Commitments ................................ 467 Kateryna RYABIKO and Marcin WALECKI

A Right to Political Participation Beyond Elections ............................. 479 Andrei RICHTER

The Relationship between Freedom of Expression and the Ban on Propaganda for War ........................................................................... 489

V Cross-Cutting Issues ........................................................... 505 Klaus STARL, Veronika APOSTOLOVSKI and Ingrid NICOLETTI

Human Rights Education for the Judiciary: An Assessment of a Decade of Training Experience ............................................................. 507 Tessa SCHREMPF

An Economy to Feed (on) Human Beings? Human Rights and the Responsibility to Counteract .................................................................. 517 Patrick HARRIS

Prisoners: Disenfranchised with Dignity? Searching the Legal and the Theoretical to Find the Cure for Europe’s Ailing Right to Vote ........................................................................................................... 533 14

Table of Contents

VI Book Reviews ..................................................................... 551

Biographies ....................................................................................................... 567

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Fundamental Rights in EU Criminal Justice Instruments: How to Best Make the Glass Slipper Fit?*

Table of Contents A

Introduction .............................................................................................. 355

B

Main Developments of Mutual Recognition in the EU ............................. 356

C

Fundamental Rights in Selected Instruments .......................................... 358

D

Conclusions – Make the Glass Slipper Fit ............................................... 364

Keywords European Union, fundamental rights, mutual recognition, criminal justice, nonrecognition, trust, cross-border justice, integration

A

Introduction

What are the developments and remaining stumble blocks for the European Union (EU) in the area of criminal justice? Mutual recognition and trust, essential elements for the EU justice area to work certainly needs to be maintained and reinforced, but how is this best done against the twofold ambition to let ‘justice freely cross borders’ (mutual recognition) and, at the same time leave the protection of fundamental rights intact (mutual trust)? For the glass slipper to fit, to use the image from Cinderella – the price for the prince to find the right match, may require some searching and testing just as was the case in that European folk tale.1 The EU on its way towards a more integrated Europe, suitable for the more interactive European Member States has to accommodate the concerns of the more reluctant Member States preferring less ‘central intrusion’. Mutual recognition can in this context do miracles as it allows that justice ‘travels’ more smoothly and thus effectively across borders * 1

This article is written in private capacity, views are strictly personal and cannot be attributed to their employer. The authors are grateful for comments received on drafts from Hans G. Nilsson and Anže Erbežnik. Compare also, by the same authors, A sleeping beauty awakes: Criminal law from a fundamental rights perspective in Post-Lisbon-EU, in: Wolfgang Benedek, Wolfram Karl, Florence Benoît-Rohmer and Manfred Nowak (eds.), European Yearbook on Human Rights 2011 (2011), 187-199.

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without a need for supranational harmonisation of national criminal law (be it procedural or substantive). At the same time the miracle has its limits: mutual recognition must not lead to selling out the fundamental values the EU and its Member States share: the fundamental rights standards as referred to in Article 2 Treaty on European Union (TEU) and detailed in the EU Charter of fundamental rights. It appears less than crystal-clear how far member states may (or: have to) go in non-compliance with requests for mutual recognition across borders on the basis of concerns for fundamental rights. We argue, that essential for the match to be successful, the EU needs to place more emphasis on fundamental rights in its preparation of legislative proposals, in the finalisation of legislation, and in its implementation. This, rather than cutting off parts of the feet to make them match the slipper as Cinderella’s step sisters did, will boost and secure the very much needed trust between the Member States, and trust of the people in the EU in the European project. We pursue this line of thought in the following in an eclectic and somewhat superficial way by briefly referring to the main areas of developments in mutual recognition (part B) and then looking into eight selected mutual recognition instruments (before and after the Treaty of Lisbon, part C) in order to then conclude with some reflections on what a fit of the glass slipper – mutual recognition in criminal justice that does not break fundamental rights – means for the future work of the EU (part D).

B

Main Developments of Mutual Recognition in the EU

In the EU area of justice, one of the major steps is the move from mutual legal assistance, the traditional inter-state cooperation, to mutual recognition, a more automatic process similar to that used intra-state. In criminal justice, mutual recognition has been developed in the EU since the late 1990’s.2 Mutual recognition instruments were foreseen to concern four main areas:3 ▪ Final criminal judgments taken into account irrespective of where they were handed down; ▪ Enforcement of pre-trial orders, such as evidence across borders; ▪ Sentencing, fines, confiscation orders, disqualifications or similar sanctions or the transfer of persons; ▪ Post-sentencing allowing efficient trans-border cooperation in dealing with a person who is subject to obligations, such as persons on probation or parole. 2

3

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On the origin and development, see for instance Anže Erbežnik, The Principle of Mutual Recognition as a Utilitarian Solution, and the Way Forward, European Criminal Law Review 1 (2012), 1. Mutual recognition was also suggested at the June 1998 Council meeting in Cardiff and in action plans for how to implement the 1997 Amsterdam Treaty (into force 1999), see Programme of measures to implement the principle of mutual recognition of decisions in criminal matters, 2001/C 12/02, OJ C 12/10 (15 January 2001). As outlined in the Programme of measures to implement the principle of mutual recognition of decisions in criminal matters, 2001/C 12/02, OJ C 12/10 (15 January 2001). This is the programme that was requested at the Tampere Council in the 1999-2004 justice programme. See, e.g., Gisèle Vernimmen-Van Tiggelen and Laura Surano, Analysis of the future of mutual recognition in criminal matters in the European Union (2008); see also Hans G. Nilsson, From classical judicial cooperation to mutual recognition, Revue internationale de droit penal 1 (2006), 77.

Fundamental Rights in EU Criminal Justice Instruments

The first of these areas – judgments – had the aim of avoiding double jeopardy (ne bis in idem) as well as taking sentences from courts in other Member States into account in the determination of sentencing.4 The second area – pre-trial orders – aimed at cross-border taking and freezing of evidence, including interim measures to ensure speed and efficiency, a European arrest warrant, pre-trial supervision measures, and coordination and information tools to enable transfer of prosecutions to other Member States to 5 avoid duplication and ensure efficiency. The third area – sentencing – included how to ensure that persons sentenced in one Member State that cannot be transferred to this state from the Member State they are in, can serve the sentence in that Member State. Or that persons sentenced in another state than their ‘home state’ should be able to transfer their sentence and serve the time in ‘their own’ country. Part of the third area was also the possibility to levy fines and impose confiscation across borders. An additional aspect in this area was to give effect to ‘disqualifications’ in other Member States, meaning persons sentenced for crimes related to organised crime being prevented from participating in public tendering, and applying for public subsidies and governmental licenses. A final element of this area was coordination and information tools to enable transfer of prosecutions to other Member States to 6 avoid duplication and ensure efficiency. And finally, the fourth area – post-sentencing – prescribed development of EU 7 instruments for supervision post-sentencing, such as probation and parole. A fifth area was also included in the 2001 Programme, calling for peer evaluation of the development of Member States progress in implementing the various measures in the other four areas.8 In all, the Programme suggested 24 specific measures (some of which were suggested to be merged), ranking them in terms of priority from 1 to 6 (where about half were ranked at 1 or 2). On the basis of this 2001-programme, a large number of measures have been developed – basically all 24 measures have been realised.9 Over 30 Framework Decisions were adopted in the area of criminal justice before the Lisbon Treaty did away with this specific type of instrument, and since Lisbon (December 2009), there have been some 20 directives (some of which are ‘Lisbonised’ and updated framework decisions) adopted. Specific issues that have been dealt with include organised crime, environmental crime, terrorism, trafficking in human beings, crimes against the financial interests of the EU, cybercrime, intellectual property, racism and xenophobia, illicit drug trafficking, data protection, corruption, police cooperation, cross-border crime investigation teams, and 4 5 6 7 8 9

Programme of measures, ibid., 12-13. Ibid., 14-16. Ibid., 16-18. Ibid., 18-19. Ibid., 19. An instrument on transfer of proceedings in criminal matters has however not been developed. Since Tampere, the Hague and the Stockholm programmes as well as the 2014 strategic guidelines, have reiterated the need to complete and refine the system of mutual recognition in criminal matters, see The Hague Programme: strengthening freedom, security and justice in the European Union, OJ C53 (3 March 2005), 12; The Stockholm Programme – an open and secure Europe serving and protecting citizens, OJ C115 (4 May 2010), 12-13; and the strategic guidelines for freedom, security and justice, European Council EUCO 79/14 (27 June 2014), 6 and 19.

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a European Public Prosecutor’s Office. There are also two distinct strands of instruments that relate to rights of victims of crime as well as procedural rights for suspects and accused persons. A particular Framework Decision is that dealing with in absentia from 2009, which introduced to five other Framework Decisions “procedural rights of persons [in relation to] decisions rendered in the absence of the person concerned at the trial”.10

C

Fundamental Rights in Selected Instruments

A selection of these instruments in EU criminal law legislation will serve to highlight how fundamental rights have been dealt with – choosing some representative and more generally known instruments, including framework decisions and directives (acronyms not commonly used are provided in italics): 1 EAW – European Arrest Warrant (Framework Decision 2002/584, 13 June 2002) 2 ToP – Transfer of prisoners (Framework Decision 2008/909, 27 November 2008) – mutual recognition of judgments imposing custodial sentences or measures involving deprivation of liberty 3 PAS – Probation and alternative sanctions (Framework Decision 2008/947, 27 November 2008) – mutual recognition of judgments and probation decisions on supervision of probation measures and alternative sanctions 4 EEW – European Evidence Warrant (Framework Decision 2008/978, 18 December 2008) – ordering another state’s authorities to arrest persons 5 ESO – European Supervision Order (Framework Decision 2009/829, 23 October 2009) – transfer of pre-trial suspects or accused persons 6 EPO – European Protection Order (Directive 2011/99, 13 December 2011) – recognition of protection measures for victims of crime (the criminal limb that with mutual recognition of protection measures (Regulation 606/2013, 12 June 2013) constitutes the protection system) 7 EIO – European Investigation Order (Directive 2014/41, 3 April 2014) – ordering evidence gathering by authorities in another state 8 PoC – Freezing and confiscation of tools/proceeds of crime (Directive 2014/42, 3 April 2014) – securing freezing and confiscation of assets, in particular in mafia-related crime These eight instruments, all based on mutual recognition in criminal justice, are different in nature. They were drafted over a relatively long time period where experts, governments and Presidencies of the Council of the EU have been replaced – and the European Parliament has during the course of events been given a new role. Against this background, consistency has probably not been a key aspect in all this. The EAW (number 1) concerns cross-border requests for arresting persons. The EEW (4), which largely will be replaced by the EIO (7) relates to cross-border taking and transfer of evidence. PoC (8) allows for proceeds of crime to be frozen or confiscated pending or during criminal investigations. The ToP and the PAS (2 and 3) concern transfer of sentenced persons to serve time in prison, be given alternative sanctions, or probation in their ‘home country’. Similarly, the ESO (5) is about transfer pre-trial of supervision measures other than detention. The EPO (6) makes applicable protection of a 10

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2009/299 (26 February 2009).

Fundamental Rights in EU Criminal Justice Instruments

person across borders, and is thus a somewhat different instrument from the others; even though the EPO rather seeks to protect a victim of crime, restrictions are placed on persons (perpetrators) and this makes the instrument share many features with the others. Two of the instruments have not yet passed the transposition deadline (EIO and CoP), and some instruments are not applicable to all 28 EU Member States (see Figure 1).

Figure 1: The eight instruments with transposition deadlines and applicability

There is a variety of differences how fundamental rights are dealt with in the actual formulations of these eight instruments.11 In the legally binding part of them there appear to be four different sorts of references. Firstly, there is sometimes a general provision stating that the respective instrument does not alter the obligation to respect fundamental rights as laid down in the EU treaty. Four instruments share the formula that they are not “modifying the obligation to respect fundamental rights and fundamental legal principles as enshrined in Article 6 [TEU]”. This formula is used for the EAW (Article 1 para. 3), the ToP (Article 1 para. 4), the PAS (Article 1 para. 4) and the ESO (Article 5). The EIO uses a slightly qualified wording, namely: “[not] modifying the obligation to respect the fundamental rights and legal principles as enshrined in Article 6 of the TEU, including the rights of defence of persons subject to criminal proceedings, and any obligations incumbent on judicial authorities in this respect shall remain unaffected” (Article 1 para. 4). Secondly, there is typically a reference to fundamental rights in the context of refusal grounds. The eight instruments looked at fall in four groups. Two instruments, namely the EAW and the PoC do not allow for any fundamental rights based refusal ground. The most frequent setting is however to have one refusal with a fundamental rights dimension: the prohibition of double jeopardy (the

11

Certainly the intention was that the Framework Decisions would not harmonise much, rather leaving the national systems intact, including with the respective system providing for the relevant fundamental rights.

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principle of ne bis in idem).12 Two instruments, the ToP13 and the PAS14 allow for a second refusal ground, namely prior trials conducted in absentia. Finally, there is one instrument that goes beyond this standard: the EIO offers a general fundamental rights refusal ground.15 Article 1 para. 1f of the EIO allows a Member State to refuse the execution of an EIO issued by another Member State where “there are substantial grounds to believe that the execution of the investigative measure indicated in the EIO would be incompatible with the executing State’s obligations in accordance with Article 6 TEU and the Charter”.16 Thirdly, all instruments but the PAS and the ESO contain references to legal remedies17 and/or other procedural guarantees. These guarantees concern the right to a legal counsel in the EWA18 the ToP19 or the PoC.20 The right to information is mentioned in the EAW,21 EEW22 EIO,23 PoC.24 Also the right to a hearing25 26 or “rights of defence” can be found. Fourthly, the instruments offer references to specific substantial fundamental rights. This is the case for all instruments but the ToP and the ESO. Data protection 27 28 29 is referred to in the EEW and the EIO. Property is mentioned in the EAW, 30 31 32 the PAS and the PoC. Dignity and liberty are referred to in the EPO whereas 12

13 14 15

16

17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32

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Art. 9 para. 1c EAW, Art. 11 para. 1c PAS, Art. 13 para. 1a EEW, Art. 15 para. 1c ESO, Art. 10 para. 1g EPO, Art. 11 para. 1d EIO. Ne bis in idem has been an aspect that was particularly highlighted in the case law of the Court of Justice of the European Union, such as in Gözütok and Brügge, C-187/01 and C-385/01, Judgment of 11 February 2003, see Nilsson (2006), 77. Art. 9 para. 1I ToP. Art. 11 para. 1h PAS. This was discussed in the genesis of this instruments. See in this regard the opinion by the European Union Agency for Fundamental Rights submitted during the drafting process of the EIO argued for a fundamental rights clause, see Opinion of the European Union Agency for Fundamental Rights on the draft Directive regarding the European Investigation Order (14 February 2011), 10-12, http://fra.europa.eu/sites/ default/files/fra_uploads/1490-FRA-Opinion-EIO-Directive-15022011.pdf. The EIO also includes in Art. 11 para. 1a as a refusal ground “rules on determination and limitation of criminal liability relating to freedom of the press and freedom of expression in other media, which make it impossible to execute the EIO”; On the EIO in contrast to the EAW, see Luisa Marin, Effective and Legitimate? Learning from the Lessons of 10 Years of Practice with the European Arrest Warrant, New Journal of European Criminal Law 5 (2014) 3, 343. Art. 18 EEW, Art. 6 para. 4 EPO, Art. 14 para. 7 EIO, Art. 8 para. 1 PoC. Art. 2 para. 3f EAW and Art. 28 para. 2b EAW. Art. 18 para. 2f ToP. Art. 8 para. 7 PoC. Art. 11 EAW. Art. 18 para. 5 EEW. Art. 24 para. 5 EIO. Art. 18 para. 2 PoC. Art. 14 EAW. Art. 24 para. 3b EIO. Art. 10 EEW. Art. 20 EIO. Art. 29 para. 4 EAW. Art. 1 para. 1 PAS. Art. 8 para. 9 PoC. Art. 1 EPO.

Fundamental Rights in EU Criminal Justice Instruments

the EIO33 mentions liberty and the PoC34 the protection of victims. Figure 2 offers a schematic overview of key fundamental rights provisions contained in the eight instruments as a collective; in the left column fundamental rights references in the recitals are given whereas the right column shows references to fundamental rights in some of the operational articles. None of the eight instruments include all these ‘eight plus four’ but the EIO comes closest with only one recital ‘missing’. Figure 3 offers an overview of which of the four plus eight are contained in each of the eight instruments. So there is remarkable diversity in the way the texts are structured and drafted when it comes to their ‘fundamental rights components’. It does not appear that all of this variation can 35 be explained by objective factors. That the EIO is the only instrument that grants fundamental rights a prominent position is only partly explained by the fact that the instrument was adopted after the Charter entered into force on 1 December 2009 since the PoC is an even younger instrument that still does not mention the Charter. Rather, the reference to the Charter appears to reflect the greater fundamental rights affinity of the EIO’s overall text as expressed in its non-execution provision mentioned above. Figure 2: Schematic overview of recitals and articles included in the eight instruments

Figure 3: Included aspects of fundamental rights in the eight selected EU instruments (left column recitals and right column articles with a key to the boxes provided in Figure 2)

The absence of an explicit operational provision devoted to fundamental rights might not be surprising for the EPO given its purpose. Less obvious is the 33 34 35

Art. 22 para. 8 EIO. Art. 8 para. 10 PoC. For a recent example of a critical assessment in a similar vein, see Meijers Committee, CM1502, Inconsistent legal protection in mutual recognition instruments (30 March 2015), http://www.commissie-meijers.nl/sites/all/files/cm1502_inconsitent_legal_ protection_in_mutual_recognition_instruments1.pdf.

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absence of such an explicit article in the EEW and the PoC, both of which concern potentially highly intrusive measures, not the least the PoC with freezing and confiscation of proceeds of crime, also of persons related to suspects.36 The impression of less than full consistency is further confirmed when looking at the preambles of the selected instruments where one would – given the legally non-binding nature of these parts – expect similar if not identical formulaic statements in all the instruments. Again various clusters can be built amongst the eight instruments in focus. Firstly, there are five different sorts of general clauses. One of them establishes a general commitment to fundamental rights. This clause can be found in all instruments stating that the instruments observe “the principles recognised by Article 6 [TEU] and reflected in the [Charter]”. The EAW,37 the ToP,38 the PAS,39 40 and the EEW add to this a reference to Title VI of the Charter. This Title is composed by Articles 47 through 50, dealing with the right to a remedy and a fair trial, presumption of innocence, legality and proportionality, and ne bis in idem. The preambles of the EPO, the EIO and the PoC also contain a reference to the ECHR with the PoC adding in recital 38: “as interpreted in the case law of the European Court of Human Rights.” In the case of the EIO41 the reference to the ECHR is made as part and parcel of a wider reference to “international law and international agreements to which the Union or all the Member States are party”. Then there is a second sort of general clause: All eight instruments, save the 42 EPO (more logically since aimed at protecting persons) and the PoC (less logical since confiscation etc could be used ‘for the wrong purposes’), also include a second general clause aimed at preventing abuse of the measures for discriminatory reasons (action may not be discriminatory). In the words of the EAW:43 “Nothing in this Framework Decision may be interpreted as prohibiting refusal to surrender a person for whom a European arrest warrant has been issued when there are reasons to believe, on the basis of objective elements, that the said arrest warrant has been issued for the purpose of prosecuting or punishing a person on the grounds of his or her sex, race, religion, ethnic origin, nationality, language, political opinions or sexual orientation, or that that person’s position may be prejudiced for any of these reasons.”

36 37 38 39 40 41 42 43

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See Opinion of the European Union Agency for Fundamental Rights on the confiscation of proceeds of crime (4 December 2012), http://fra.europa.eu/sites/default/files/ fra-opinion-3-2012_confiscation-of-proceeds-of-crime.pdf. Recital 12. Recital 13. Recital 5. Recital 27. Recital 39. It is added in this context that the EPO has instead a statement in Recital 38 that encourages the EU Member States to take the UN Convention on the Elimination of Discrimination Against Women into account when implementing the Directive. Recital 12 EAW. For the other instruments compare: Recital 12 EAW, Recital 13 ToP, Recital 27 EEW, Recital 16 ESO, Recital 39 EIO (explicitly also allowing for refusing execution).

Fundamental Rights in EU Criminal Justice Instruments

Another, third group of general clauses states that the respective EU instruments do not prevent EU Member States from applying constitutional rules relating to due process, freedom of association, freedom of the press and freedom of expression in other media.44 All instruments but the EEW have such a clause. The clauses in the PAS45 and the ESO46 also add freedom of religion. The EIO is special also with regard to this clause as it chooses the following formulation: “Non-coercive measures could be, for example, such measures that do not infringe the right to privacy or the right to property, depending on national law”.47 Two additional types of general clauses exist that are less used and appear in only three of the eight instruments examined. One is a clause in the preambles of the EEW,48 EIO49 and the PoC50 stressing the importance of proportionality and the need to use only the least intrusive means. Another one is a clause invoking a shared understanding of freedom, security and justice, including human rights and fundamental freedoms or a high level of confidence between the Member States. This is used in the PAS,51 the EEW52 and in the EIO.53 Interestingly, the wording in the EIO stresses that the presumption is rebuttable and that execution can be refused if not in line with fundamental rights obligations: “The creation of an area of freedom, security and justice within the Union is based on mutual confidence and a presumption of compliance by other Member States with Union law and, in particular, with fundamental rights. However, that presumption is rebuttable. Consequently, if there are substantial grounds for believing that the execution of an investigative measure indicated in the EIO would result in a breach of a fundamental right of the person concerned and that the executing State would disregard its obligations concerning the protection of fundamental rights recognised in the Charter, the execution of the EIO should be refused.” With regard to references to specific fundamental rights there appears to be a sort of ‘common core’ of rights that appear in most of the preambles of the eight instruments. This core is composed of due process, freedom of association, freedom of the press, and freedom of expression in other media. These four aspects are referred to in the preambles of the EAW, the ToP, the PAS, the EEW 54 55 and the ESO. Most of the instruments also refer to data protection. But even where consistency appears high it has its limits: whereas these references do explicitly refer to the Council of Europe Convention 1981, the EIO refers instead to the Charter. And two instruments do not at all refer to data protection: the ToP and PoC. 44 45 46 47 48 49 50 51 52 53 54 55

Recital 12 EAW, Recital 14 ToP. Recital 6 PAS. Recital 17 ESO. Recital 16 EIO. Recital 12 EEW. Recital 10 EIO. Recital 31 PoC. Recital 1 PAS. Recital 8 EEW. Recital 19 EIO. See above the references to the general clause containing these more specific rights. Recital 23 PAS, Recital 24 EEW, Recital 19 ESO, Recital 36 EPO, Recital 40 EIO.

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The EAW adds “death penalty, torture or other inhuman or degrading treatment or punishment”;56 the ToP and the PoC procedural rights;57 the PAS freedom of religion;58 and the ESO right to liberty, presumption of innocence and the 59 freedom of religion. Whereas the EIO at mentions ne bis in idem and privacy 60 and property, the EPO refers to ne bis in idem, rights of victims and the right to be heard and to challenge the protection measure (with reference to articles 6 of the ECHR and 47 of the Charter.61 The nature of the instruments dictate some of the focus of potential rights affected, and in the negotiations of the instruments, Member States’ insistence on particular rights may vary depending on this as well as on the ‘political masters at home’. But the consistency and the rationale for inclusions of these rights only, and not seemingly relevant – or even more relevant – rights, such as Charter Articles 47 on the right to a remedy and a fair trial, 21 on non-discrimination, or 17 on property, is not apparent. Also, the custom of placing some rights in the recitals as apparent grounds for non-recognition but then not always following through in the actual operational non-recognition grounds undermines clarity and creates legal uncertainty. For instance, the ESO refers in Recital 17 to: “This Framework Decision should not prevent any Member State from applying its constitutional rules relating to entitlement to due process, freedom of association, freedom of the press, freedom of expression in other media and freedom of religion.” This appears to be opening up for Member States not recognising a request with reference to constitutional provisions on freedom of the press, while the operational part of the Framework Decision (Article 15) is limiting relevant nonrecognition to ne bis in idem.

D

Conclusions – Make the Glass Slipper Fit

In the construction of an EU area of criminal justice, an assumption – rightly or wrongly – or maybe an aspiration, has been the implementation of minimum standards of fundamental rights across all the EU Member States. For this reason, only a rather general reference to fundamental rights has typically been deemed necessary.62 The risk that fundamental rights are violated in a Member

56 57 58 59 60 61 62

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Recital 13. Recitals 5 and 40 respectively. Recital 6. Recital Recitals 17 and 16. Recitals 3 and 17. See e.g. Anže Erbežnik, The Principle of Mutual Recognition as a Utilitarian Solution, and the Way Forward, European Criminal Law Review 1 (2012), 6; however, note 19 provides an example to the contrary: Framework Decision 2005/214/ on financial penalties, which states in Art. 20 para. 3 that “Each Member State may, where the [situation] gives rise to an issue that fundamental rights or fundamental legal principles as enshrined in Art. 6 of the Treaty may have been infringed, oppose the recognition and the execution of decisions”.

Fundamental Rights in EU Criminal Justice Instruments

State is usually not addressed.63 Moreover, how fundamental rights are referred to appear in EU instruments based on mutual recognition – at least this is the impression that emerged after having examined eight relevant instruments – neither encompassing nor consistent. At the same time it seems increasingly important that the Member States are aware what leeway they are left with when acting under the regime of mutual recognition. In the N.S. string of cases it became clear that the presumption that other Member States conform with fundamental rights has to be rebuttable.64 “[I]f there are substantial grounds for believing that there are systemic flaws […] in the Member State responsible, resulting in inhuman or degrading treatment, within the meaning of Article 4 of the Charter, […] the transfer [of asylum seekers] would be incompatible […].” A situation in a Member State, as for example that recently reported by the European Committee on the Prevention of Torture (CPT), could compromise much of the mutual recognition in the area of criminal justice: “Major shortcomings have been identified […], especially as concerns the police and penitentiary establishments. Repeated recommendations have been made over the last 20 years concerning these two areas. […] The vast majority of these recommendations have remained unimplemented, or only partially implemented. […] [A] lack of decisive action by the authorities [has lead] to a steady deterioration in the situation of persons deprived of their liberty [… including,] the phenomenon of illtreatment (both in the police and the prison context), inter-prisoner violence, prison overcrowding, poor material conditions of detention in [investigation detention facilities] and prisons, inadequate prison health-care services and low custodial staffing levels, as well as concerns related to discipline, segregation and 65 contact with the outside world.” At the same time the CJEU clarified in the Melloni case that Article 53 of the Charter does not empower Member States to invoke fundamental rights standards that are higher than those of the Charter where such standards would lead to the disapplication of EU legislation. Member States are therefore bound in two directions: neither can they blindly assume that all other Member States are conforming with fundamental rights standards since this would risk undermining these very standards. Nor can they invoke their own standards in order to avoid any adverse fundamental rights effects from the application of an EU instrument as this would in the eyes of the CJEU cast “doubt on the uniformity of the standard of protection of fundamental rights as defined in that framework decision” and “undermine the principles of mutual trust and recognition which that decision purports to uphold and would, 63

64 65

See Art. 20 para. 3 of Framework Decision 2005/214 on financial penalties: “Each Member State may, where [the situation] gives rise to an issue that fundamental rights or fundamental legal principles as enshrined in Art. 6 of the Treaty may have been infringed, oppose the recognition and the execution of decisions.” N.S., Court of Justice of the European Union, Judgment (Grand Chamber) C-399/11 (21 December 2011), para. 86. European Committee on the Prevention of Torture (CPT), Public statement concerning Bulgaria (26 March 2015), paras. 1-3.

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therefore, compromise the efficacy of that framework decision”.66 This leaves Member State in a less than easy or crystal-clear position. Against this background it appears necessary to do the utmost to guarantee that EU legislation is as clear as possible. The EU legislator should find ways to develop a consistent approach to fundamental rights clauses and references in instruments based on mutual recognition so to allow for legal clarity and foreseeability. Avoiding full harmonisation does not dispense from good legislation. Fundamental rights need a solid standing in EU legislation. But also Member States have an essential role and responsibility. It would be important to allow for practical tools that foster exchange amongst practitioners so that transnational learning processes can help basing mutual recognition on mutual trust thereby avoiding any fundamental rights spin off in the area of EU criminal law. The EU and its Member Sates stand on the solid but not unbreakable foot of fundamental rights protection as prominently referred to in the shared values of Article 2 TEU. Mutual recognition and criminal law form a pair of shoes that has to fit in order not to create damage. In other words: The glass slippers have to come in the right shape because Cinderella’s feet form the unchangeable basis for her very being. To stay with the fairy tale: a good fit between criminal justice and fundamental rights is needed, so that the people in the EU can live happily ever after.

66

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Court of Justice of the European Union, Melloni, Judgment (Grand Chamber) C-411/10 (26 February 2013), para. 63.