Tag Archives: Rights of the individual

Right of access to a lawyer

Outline of the Community (European Union) legislation about Right of access to a lawyer

Topics

These categories group together and put in context the legislative and non-legislative initiatives which deal with the same topic.

Justice freedom and security > Judicial cooperation in criminal matters

Right of access to a lawyer (Proposal)

Proposal

Proposal for a Directive of the European Parliament and of the Council on the right of access to a lawyer in criminal proceedings and on the right to communicate upon arrest [COM(2011) 326 final – Not published in the Official Journal].

Summary

The rights of the defence and the right to a fair trial, which include the right of access to a lawyer, are enshrined in the Charter of Fundamental Rights of the European Union (EU) and the European Convention on Human Rights.

With a view to safeguarding this right for all suspected or accused persons in criminal cases within the territory of the EU, the Commission presents a Proposal providing for minimum standards common to all Member States.

Principle

In criminal proceedings, the right of access to a lawyer should be guaranteed to the following persons:

suspects;
accused persons;
persons subject to a European Arrest Warrant.

If they are arrested during the proceedings, these persons should also have the right to communicate with at least one person of their choice, such as a relative or an employer. Foreign nationals should be able to contact their embassy or consulate.

The rights shall apply as soon as a person is made aware that he is suspected or accused of having committed a criminal offence, until the end of the proceedings. Persons subject to a European Arrest Warrant should be granted these rights from the moment of their arrest.

Implementation

All suspected and accused persons in criminal proceedings should have access to a lawyer as soon as possible and in any event in the following situations:

upon questioning;
when there is a procedural or evidence-gathering act requiring or permitting the presence of the person;
upon arrest.

A person subject to a European Arrest Warrant should be assisted by a lawyer in the Member State in which he was arrested but also in the Member State issuing the warrant. The lawyer in the issuing Member State will not address the merit of the case but will work with the other lawyer to enable the requested person to exercise his rights.

A suspected or accused person shall have the right to meet with his lawyer. The duration and frequency of these meetings should be sufficient to allow the effective exercise of the rights of the defence.

The lawyer should be entitled to attend any questioning or hearing, and any investigative or evidence-gathering act for which the national law requires or permits the presence of a suspect or accused person. He should also have access to the place of detention to check the conditions of imprisonment.

All communications, in whatever form they take, between a lawyer and his client shall be confidential.

In the event of breaches of the right of access to a lawyer, the suspected or accused person should have a remedy with the effect of placing him in the same position in which he would have found himself had the breach not occurred. Statements or evidence obtained in breach of the right of access to a lawyer may not be used against him.

Exceptions

In exceptional circumstances, and by authorisation of a judicial authority, the right of access to a lawyer and to communicate with a third person or with the embassy or consulate may be suspended. The derogation should be justified by the need to avert serious adverse consequences for the life or physical integrity of a person. In any event, the derogation should not be based exclusively on the type or seriousness of the offence of which the person is accused. It should be proportional to the situation, limited in time as much as possible and not prejudice the fairness of the proceedings.

A suspected or accused person may also waive the assistance of a lawyer. This waiver should be voluntary and unequivocal. The person should have been made aware of the consequences of this decision and be able to understand them.

Context

Strengthening the procedural rights of suspected or accused persons in criminal proceedings is an objective of the Stockholm Programme. This Proposal is part of a set of measures comprising a Directive on the right to interpretation and translation and another, currently under negotiation, on the right to information.

The Proposal will enter into force only after review and adoption by the European Parliament and the Council. Consequently, the final text of the Directive might differ from that of the Commission Proposal.

References

Proposal	Official Journal	Procedure
COM(2011) 326	–	2011/154/COD

RELATED ACTS

Resolution of the Council of 30 November 2009 on a Roadmap for strengthening procedural rights of suspected or accused persons in criminal proceedings [OJ C 295 of 4.12.2009].

The right to interpretation and translation in criminal proceedings

Leave a reply

The right to interpretation and translation in criminal proceedings

Outline of the Community (European Union) legislation about The right to interpretation and translation in criminal proceedings

Topics

These categories group together and put in context the legislative and non-legislative initiatives which deal with the same topic.

Justice freedom and security > Judicial cooperation in criminal matters

The right to interpretation and translation in criminal proceedings

Document or Iniciative

Directive 2010/64/EU of the European Parliament and of the Council of 20 October 2010 on the right to interpretation and translation in criminal proceedings.

Summary

The directive establishes common minimum rules for European Union (EU) countries on the right to interpretation and translation in criminal proceedings as well as in proceedings for the execution of the European arrest warrant. It contributes to the proper functioning of judicial cooperation within the EU by facilitating the mutual recognition of judicial decisions in criminal matters. The directive also aims to improve the protection of individual rights by developing the minimum standards for the right to a fair trial and the right of defence guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms and the Charter of Fundamental Rights of the EU.

Right to interpretation and translation

The right to interpretation and translation must be provided to persons who do not speak or understand the language of the procedure. This right must be provided from the time these persons are made aware of being suspected or accused of a criminal offence until the end of the criminal proceedings, including sentencing and ruling on appeal. In the case of minor offences, if sanctions are imposed by an authority other than a court having jurisdiction in criminal matters (e.g. the police following a traffic control), the right to interpretation and translation will only apply to the proceedings following an appeal before such a court.

EU countries must also make interpretation available for the persons concerned to communicate with their legal counsel on matters relating directly to any questioning or hearing during the proceedings or to the lodging of an appeal. They must have in place a mechanism for determining whether interpretation is necessary or not.

EU countries must also provide, within a reasonable time period, the suspected or accused persons with a written translation of essential documents, namely of any:

decision depriving them of liberty;
charge or indictment;
judgement.

On a case by case basis, the competent authorities may decide to translate any other documents. The suspected or accused persons or their legal counsel may also request the translation of other essential documents. In exceptional cases, an oral translation or an oral summary of the essential documents may be provided instead of a written translation, if this does not compromise the fairness of the proceedings.

Similarly, in proceedings for the execution of a European arrest warrant, the competent authorities must provide the persons concerned with interpretation and with a written translation of the warrant, if necessary.

The suspected or accused persons must have the right to challenge a decision whereby interpretation or translation is refused. They must also have the right to complain about the quality of the provided interpretation or translation, if it is not sufficient to guarantee the fairness of the proceedings.

Quality of interpretation and translation

EU countries must ensure that the quality of translation and interpretation is sufficient to allow the persons concerned to understand the case against them and to exercise the right of defence. To this end, EU countries should take concrete measures and, in particular, set up a register or registers of independent and appropriately qualified interpreters and translators.

Costs and recording

Regardless of the outcome of the criminal proceedings, EU countries must bear the costs of the interpretation and translation provided to the suspected or accused persons.

EU countries must use the recording procedure in accordance with their national law to note when the person concerned has:

been questioned or heard with an interpreter;
been provided with an oral translation or oral summary of essential documents;
waived the right to translation of documents.

Background

On 30 November 2009, the Council adopted a roadmap for strengthening procedural rights of suspected or accused persons in criminal proceedings, which called for the adoption of measures also on the right to translation and interpretation. This roadmap was included into the Stockholm programme adopted on 10 December 2009. At the same time, the Commission was invited to assess further aspects of minimum procedural rights for suspected or accused persons to improve cooperation between EU countries in this field.

References

Act	Entry into force	Deadline for transposition in the Member States	Official Journal
Directive 2010/64/EU	15.11.2010	27.10.2013	OJ L 280 of 26.10.2010

European Asylum Support Office

Leave a reply

European Asylum Support Office

Outline of the Community (European Union) legislation about European Asylum Support Office

Topics

These categories group together and put in context the legislative and non-legislative initiatives which deal with the same topic.

Institutional affairs > The institutions bodies and agencies of the union

European Asylum Support Office

Document or Iniciative

Regulation (EU) No 439/2010 of the European Parliament and of the Council of 19 May 2010 establishing a European Asylum Support Office.

Summary

This regulation establishes the European Asylum Support Office. The function of the office is to strengthen European Union (EU) countries’ practical cooperation on asylum, to support EU countries whose asylum and reception systems are under particular pressure and to enhance the implementation of the Common European Asylum System (CEAS).

Support for practical cooperation

The European Asylum Support Office is responsible for facilitating exchanges of information and for identifying and pooling best practice on asylum matters in general. More specifically, the office is responsible for activities relating to the gathering of information concerning countries of origin of asylum seekers. This includes the development of a portal, as well as analysing and reporting on country-of-origin information.

In addition, the office is to provide support for the transfers (“relocation”) within the Union of persons under international protection, for the training of relevant parties and for the external dimension of CEAS.

Support for EU countries under particular pressure

The European Asylum Support Office is to assist EU countries that find their asylum and reception systems under specific and disproportionate pressure due, in particular, to their geographical or demographic situations or due to the sudden arrival of large numbers of non-EU country nationals that need international protection. In order to assess the needs of such EU countries, the office should:

gather information relating to emergency measures that help dealing with situations of particular pressure;
identify and analyse information on the structures and staff, assistance in managing asylum cases, and asylum capacities of EU countries;
analyse data on arrivals of large numbers of non-EU country nationals that might put a country under particular pressure.

Upon request, the office is to support EU countries by coordinating the asylum support teams, as well as actions relating to the initial analysis of applications for asylum and to the rapid set up of suitable reception facilities.

Implementation of CEAS

The European Asylum Support Office is to contribute to the implementation of CEAS, in particular by coordinating the exchanges of information between relevant stakeholders on the implementation of the instruments of the Union’s asylum acquis. For this purpose, the office may establish databases covering asylum instruments at national, European and international levels. In addition, it is to gather information on the processing of asylum applications and on legislation and legislative developments concerning asylum in EU countries.

The office is also responsible for drawing up an annual report on the European asylum situation and may draft technical documents, such as guidelines and operating manuals, on the implementation of EU asylum instruments.

Asylum support teams

Upon request for assistance by one or more EU countries under particular pressure, the European Asylum Support Office may coordinate the deployment of one or more asylum support teams to their territories for an appropriate period of time. These teams are to provide technical assistance, such as interpreting services, information on countries of origin and know-how on managing asylum cases.

The office will not only establish an asylum intervention pool made up of experts, from which the teams are drawn up, but will also draw up a list of interpreters. EU countries are to contribute to this pool with experts from their national pools and to assist in the identification of interpreters. An operating plan is to be established.

A national contact point is to be set up in each EU country for communication on issues concerning the asylum support teams. A Union contact point for coordination is created from one or more experts of the office.

Administration and management

The European Asylum Support Office is established in the form of a regulatory agency. It will be fully operational by 19 June 2011.

The planning and monitoring authority of the office is its management board. It consists of one member from each EU country, of two members from the Commission and of a non-voting member from the United Nations Refugee Agency (UNHCR). The term of office of management board members is three years, renewable.

The management board appoints the executive director from candidates selected via an open competition. The executive director is responsible for managing and acting as the legal representative of the office. The term of office of the executive director is five years, renewable once for three years.

The management board may set up an executive committee from among eight of its members, including the Commission representative, to assist it and the executive director.

The office may set up working parties composed of experts in the field of asylum. The Commission is an ex officio member of the working parties.

A consultative forum is to be established for cooperation between the office and relevant civil society organisations and other competent bodies working on asylum policy at local, regional, national, European or international level. The forum functions as a platform for information exchanges, for pooling knowledge, as well as for providing expertise and advice on issues related to asylum. It is coordinated by the executive director.

The revenues of the office mainly consist of a contribution from the general budget of the EU and of contributions from EU (voluntary) and associate countries.

References

Act	Entry into force	Deadline for transposition in the Member States	Official Journal
Regulation (EU) No 439/2010	18.6.2010	–	OJ L 132, 29.5.2010

Related Acts

Decision 2010/762/EU of the Representatives of the Governments of the Member States, meeting within the Council of 25 February 2010 determining the seat of the European Asylum Support Office [Official Journal L 324 of 9.12.2010].
This decision establishes the seat of the European Asylum Support Office at Valetta Harbour, Malta.

Policy plan on asylum

Leave a reply

Policy plan on asylum

Outline of the Community (European Union) legislation about Policy plan on asylum

Topics

These categories group together and put in context the legislative and non-legislative initiatives which deal with the same topic.

Justice freedom and security > Free movement of persons asylum and immigration

Policy plan on asylum

Document or Iniciative

Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions of 17 June 2008 – Policy Plan on Asylum: An integrated approach to protection across the EU [COM(2008) 360 final – Not published in the Official Journal].

Summary

This communication presents the policy plan for the completion of the second phase in the creation of a Common European Asylum System (CEAS). The plan is based on a three-pronged strategy for attaining the objectives of CEAS, which are:

guaranteeing access to asylum for those who need it;
providing a common asylum procedure;
creating a uniform status for asylum and for subsidiary protection;
taking into consideration gender issues and the situation of vulnerable groups;
enhancing cooperation between European Union (EU) countries on practical issues;
providing for rules to determine EU countries’ responsibilities and for mechanisms to support solidarity;
guaranteeing coherence between asylum and other policies relating to international protection.

Improved and harmonised standards of international protection

While the first phase in creating CEAS made significant progress with regard to legislative instruments, the desired level playing field has not been achieved and great disparities in the implementation of asylum policies in EU countries persist. Hence, the Commission aims to amend existing legislation, namely the:

Reception Conditions Directive (RCD), by addressing the great level of discretion EU countries enjoy. An amended RCD should provide for the further harmonisation and improvement of reception standards, including procedural guarantees on detention;
Asylum Procedures Directive (ADP), in order to eliminate disparate procedural arrangements in EU countries. Aligning these procedures will guarantee equivalent conditions for access to protection in the EU;
Qualification Directive (QD), to tackle the different interpretations of the directive by EU countries due to the wording of certain provisions. An amended version of the QD will also promote the introduction of uniform statuses.

In addition to amending existing legislation, the Commission will also consider the creation of new instruments. This will include mechanisms for the transfer of protection. Furthermore, the alignment of national statuses of protection that are not covered by the current EU framework will be examined.

Effective and supported practical cooperation

As a result of a low level of uniformity in standards and differing national practices, asylum decisions within the EU are taken in an inconsistent manner and the chances of being granted protection vary enormously from one EU country to another. Consequently, practical cooperation between EU countries needs to be stepped up at the same time as legislation is harmonised. The establishment of a European Asylum Support Office (EASO), as proposed in the Hague Programme and in the Green Paper of 6 June 2007 on the future common European asylum system, to support and coordinate practical cooperation activities, has received widespread backing. Hence, the Commission has launched a feasibility study, on the basis of which a legislative proposal for creating the EASO will be presented.

Solidarity and responsibility within the EU and in relations with non-EU countries

In the name of solidarity, a common solution needs to be found to address the problems arising from the substantial number of asylum applications that certain EU countries receive due to their geographical location or other reasons. The previously mentioned measures proposed in the policy plan should already harmonise application rules to the extent that asylum-seekers’ secondary movements will be reduced. Consequently, applications will be distributed more fairly among EU countries.

In addition, the Commission intends to amend the Dublin and Eurodac Regulations, with modifications that include allowing access by EU countries’ authorities and the European Police Office (Europol) to Eurodac for purposes of law enforcement.

Furthermore, instead of adopting a new overarching instrument to promote solidarity among EU countries, the Commission aims at establishing a series of solidarity mechanisms. To achieve this, the following is proposed:

launching a study that assesses the possibilities for processing asylum applications jointly within EU territory;
defining the means for temporarily suspending the Dublin rules for transferring asylum-seekers;
creating asylum expert teams under the EASO to support EU countries in processing applications;
providing funding to re-allocate within the EU, when necessary, those under international protection.

In the name of shared responsibility, since non-EU countries and countries of first asylum receive a far larger number of refugees, the EU will provide these countries more financial support to strengthen their capacity to provide protection. The integration of capacity-building for asylum into development cooperation will also be continued.

To truly commit to the cause of solidarity in its external relations, the Commission proposes that the EU focuses on the following to enhance the protection of refugees:

Regional Protection Programmes (RPPs), which, on the basis of an evaluation to be carried out in 2008, will be transformed into regional multi-annual action plans;
resettlement, on which the Commission will propose in 2009 a scheme to develop it into an EU-wide effective tool of protection;
better managing the arrival of asylum seekers, for which the Commission will study the use of protected entry procedures to allow for distinctions to be made between persons in need of protection and other types of migrants before they arrive at a potential host country’s border. In addition, in 2009 the Commission will also launch a study in collaboration with the United Nations Refugee Agency (UNHCR) on the possibility of processing asylum applications jointly outside of EU territory.

Background

Following the entry into force of the Treaty of Amsterdam in 1999 and based on the conclusions of the Tampere European Council of 15-16 October 1999, the creation of CEAS was launched. Its first phase (1999-2005) aimed at harmonising EU countries’ legal frameworks on asylum based on common minimum standards. The objectives for the second phase of CEAS were established by the Hague Programme.

Action plan on unaccompanied minors

Leave a reply

Action plan on unaccompanied minors

Outline of the Community (European Union) legislation about Action plan on unaccompanied minors

Topics

These categories group together and put in context the legislative and non-legislative initiatives which deal with the same topic.

Human rights > Human rights in non-EU countries

Action plan on unaccompanied minors (2010-14)

Document or Iniciative

Communication from the Commission to the European Parliament and the Council of 6 May 2010 – Action Plan on Unaccompanied Minors (2010 – 2014) [COM(2010) 213 final – Not published in the Official Journal].

Summary

A significant number of unaccompanied minors arrive in the European Union (EU) each year. The term “unaccompanied minors” refers to non-EU country nationals or stateless persons who are below the age of eighteen and who arrive in an EU country unaccompanied by a responsible adult or who are left unaccompanied after having entered an EU country.

Although EU legislative and financial instruments on asylum, immigration and trafficking in human beings address, either directly or indirectly, the situation of unaccompanied minors, greater coherence and better cooperation is needed within the EU as well as with countries of origin and transit. In order for the EU and its countries to respond more effectively, a common approach needs to be established that respects the rights of the child provided by the EU Charter of Fundamental Rights and the United Nations Convention on the Rights of the Child (UNCRC) and that is based on solidarity between the relevant countries and cooperation with civil society and international organisations.

This action plan identifies several problems and presents a number of solutions relating to the situation of unaccompanied minors. It acknowledges the lack of data on these minors and sets out three main strands for action: prevention, protection and durable solutions.

Data on unaccompanied minors

Comprehensive, reliable and comparable data is paramount to properly assessing and finding appropriate solutions to the situation of unaccompanied minors. Currently, the regulation on statistics on migration requires EU countries to only provide data on unaccompanied minors applying for international protection. This limitation needs to be overcome to obtain harmonised and complete statistics on all unaccompanied minors.

The information and data exchanges between EU countries should be improved with the help of existing agencies and networks, such as the European Migration Network and the European Asylum Support Office. Cooperation with countries of origin and transit should also be improved. To this end, the gathering of information on migration routes and criminal networks is essential. The systematic inclusion of this information in the migration profiles of the countries concerned should also be promoted. Both Frontex and Europol are already active in their respective fields; however, their roles with regard to data collection and analysis should be further reinforced.

Main strands of action

To effectively deal with the issue of unaccompanied minors, the first action must consist of preventing the unsafe migration and trafficking of children. In this context, consideration must be given to the different reasons the minors leave their country/region of origin and come to the EU. Therefore, central to the preventive work is collaboration with countries of origin and transit as well as with civil society and international organisations. Prevention involves four principal areas:

addressing the issue of migration of unaccompanied minors in other policy fields, such as development cooperation, poverty reduction, education, health and human rights;
promoting awareness-raising activities and training relating to early identification and protection of victims targeted at those who are or will be in contact with children in the countries of origin and transit;
promoting awareness-raising activities on the risks relating to irregular migration targeted at children and their families;
supporting the development of comprehensive child protection systems and birth registration systems.

EU and national external cooperation instruments should be used to support activities in these areas. At the same time, it is essential that protection programmes close to countries of origin continue to be financed.

Upon detection at the border or on the territory of the EU, an unaccompanied minor must be placed under appropriate protection. While provisions on reinforced protection are included in the relevant EU migration instruments, they are context-specific and do not provide the same standards of reception and assistance. The appointment of a representative for an unaccompanied minor should be guaranteed. It is also paramount to separate minors from adults to prevent (re)victimisation. In addition, minors should be provided with appropriate accommodation; detention should only be used in exceptional cases.

Early profiling of the type of minor, building trust and the use of measures provided by EU legislation are important for:

identifying the minor, assessing his/her age and tracing his/her family;
preventing the minor’s disappearance form care;
identifying/prosecuting the traffickers/smugglers.

In order to find durable solutions, each case should be assessed individually, keeping in mind the best interests of the child. An unaccompanied minor may either be:

returned and reintegrated in his/her country of origin, with priority given to voluntary return, in full respect of the safeguards provided by the “Return Directive”;
granted an international protection or other legal status and integrated in the host country;
resettled to an EU country.

Information management in the area of freedom, security and justice

Leave a reply

Information management in the area of freedom, security and justice

Outline of the Community (European Union) legislation about Information management in the area of freedom, security and justice

Topics

These categories group together and put in context the legislative and non-legislative initiatives which deal with the same topic.

Justice freedom and security > Police and customs cooperation

Information management in the area of freedom, security and justice

Document or Iniciative

Communication from the Commission to the European Parliament and the Council of 20 July 2010 – Overview of information management in the area of freedom, security and justice [COM(2010) 385 final – Not published in the Official Journal].

Summary

The communication presents an overview of European Union (EU) level instruments that regulate the collection, storage or cross-border exchange of personal data for law enforcement or migration management purposes. It describes the main purpose and structure of these instruments, as well as the types of personal data they cover, the authorities that have access to these data and the rules for data protection and retention. It also sets out the main principles to take into consideration when designing and evaluating such instruments in future.

Instruments in force, under implementation or consideration

The current EU level instruments consist of those that aim to improve the functioning of the Schengen area and the customs union, such as the:

Schengen Information System (SIS) and the second generation Schengen Information System (SIS II), which is currently under development;
Eurodac system;
Visa Information System (VIS);
directive on the transmission of Advance Passenger Information (API);
Naples II Convention;
Customs Information System (CIS) and its Customs File Identification Database (FIDE).

There are also EU level instruments aimed at preventing and combating terrorism and other forms of serious cross-border crime, such as the:

framework decision on simplifying the exchange of information between law enforcement authorities;
decision on stepping up cross-border cooperation;
Data Retention Directive 2006/24/EC;
framework decisions on taking account of previous convictions in new criminal proceedings and on exchanging information from criminal records, including the European Criminal Records Information System (ECRIS) for the latter;
Council Decision 2000/642/JHA on exchanging information between EU countries’ Financial Intelligence Units;
decision on cooperation between Asset Recovery Offices (AROs);
Cybercrime Alert Platforms.

In addition, EU agencies and bodies have been established to assist EU countries in preventing and combating serious cross-border crime, such as the European Police Office (Europol) and the EU’s Judicial Cooperation Unit (Eurojust).

As to cooperation with non-EU countries to prevent and combat terrorism and other forms of serious transnational crime, the Commission has signed Passenger Name Record (PNR) agreements with the United States, Australia and Canada. However, the European Parliament is critical of the content of these agreements and has, therefore, requested the Commission to renegotiate them. The Commission has also signed an agreement with the United States on the transfer of financial messaging data (EU-US TFTO Agreement).

Instruments envisaged in the Stockholm Programme action plan

In its action plan on the Stockholm Programme, the Commission has committed to presenting in the course of 2011 three legislative proposals:

a PNR package;
an Entry/Exit System (EES) for non-EU country nationals entering the Union for stays of a maximum of three months;
a Registered Travellers Programme (RTP) for simplifying border checks for certain groups of frequent travellers from non-EU countries.

The Stockholm Programme action plan also includes initiatives that the Commission is to study, with a view to presenting a communication on their feasibility:

an EU Terrorist Finance Tracking Programme (EU TFTP), for facilitating data transfers from the EU to the United States;
an Electronic System of Travel Authorisations (ESTA), for facilitating the entry of non-EU nationals who are not subject to visa requirements;
a European Police Record Index System (EPRIS), for facilitating the location of information across the EU by law enforcement officers.

Analysis of instruments

Only six of the above mentioned instruments involve the collection and storage of personal data at EU level: SIS, VIS, Eurodac, CIS, Europol and Eurojust. The other instruments regulate the exchange or transfer of personal information that has been collected at national level. With the exception of SIS and VIS, these instruments have a single purpose. Similarly, the personal information collected may only be used for the single purpose defined by the instrument in question, except for that collected through SIS and VIS.

Access to information from instruments that aim at combating terrorism and serious crime is limited to the police and border control and customs authorities. Access to information from Schengen-related instruments is limited to immigration authorities and, in certain circumstances, to the police and border control and customs authorities. The information flow for centralised instruments is controlled by national interfaces and for decentralised instruments by national contact points or central coordinating units.

Set of core principles for future

There is a need to establish a set of core principles for future policy developments as well as for the evaluation of the current instruments. These should consist of substantive principles, such as:

the safeguarding of fundamental rights, especially of the right to privacy and personal data protection via “privacy by design”;
an assessment of the necessity of the new instrument in terms of its impact on an individual’s right to privacy and personal data protection;
compliance with the principles of subsidiarity and proportionality;
management of risk via risk profiles.

The set of core principles should also consist of process-oriented principles, such as:

cost-effectiveness, taking into consideration existing instruments;
bottom-up policy design, taking into consideration the interests of end-users;
clear allocation of responsibilities, paying particular attention to governance structures;
reporting and review obligations to ensure the instruments serve the purposes they were designed for.

Terrorist offences

Leave a reply

Terrorist offences

Outline of the Community (European Union) legislation about Terrorist offences

Topics

These categories group together and put in context the legislative and non-legislative initiatives which deal with the same topic.

Justice freedom and security > Fight against terrorism

Terrorist offences

Document or Iniciative

Council Framework Decision 2002/475/JHA of 13 June 2002 on combating terrorism [See amending act(s)].

Summary

The framework decision harmonises the definition of terrorist offences in all EU countries by introducing a specific and common definition. Its concept of terrorism is a combination of two elements:

an objective element, as it refers to a list of instances of serious criminal conduct (murder, bodily injuries, hostage taking, extortion, fabrication of weapons, committing attacks, threatening to commit any of the above, etc.);
a subjective element, as these acts are deemed to be terrorist offences when committed with the aim of seriously intimidating a population, unduly compelling a government or international organisation to perform or abstain from performing any act, or seriously destabilising or destroying the fundamental political, constitutional, economic or social structures of a country or an international organisation.

The framework decision defines a terrorist group as a structured organisation consisting of more than two persons, established over a period of time and acting in concert, and refers to directing a terrorist group and participating in its activities as offences relating to a terrorist group.

Furthermore, EU countries must ensure that certain intentional acts are punishable as offences linked to terrorist activities even if no terrorist offence is committed. These include:

public provocation to commit a terrorist offence;
recruitment and training for terrorism;
aggravated theft, extortion and falsification of administrative documents with the aim of committing a terrorist offence.

To punish terrorist offences, EU countries must make provision in their national legislation for effective, proportionate and dissuasive criminal penalties, which may entail extradition. In addition, EU countries must ensure that penalties are imposed on legal persons where it is shown that the natural person has the power to represent the legal person or authority to exercise control within the legal person that has committed a terrorist offence.

EU countries must take the necessary action to:

establish their jurisdiction with regard to terrorist offences;
establish their jurisdiction where they refuse to hand over or extradite a person suspected or convicted of such an offence to another EU country or to a non-EU country;
coordinate their activities and determine which of them is to prosecute the offenders with the aim of centralising proceedings in a single EU country, when several EU countries are involved.

They will also ensure appropriate assistance for victims and their families (in addition to the measures already provided for in Framework Decision 2001/220/JHA).

Background

The terrorist attacks of September 2001 have led the EU to step up action in this field. This framework decision is thus designed to make the fight against terrorism at EU level more effective. This problem was already discussed at the European Council meetings in Tampere in October 1999 and in Santa Maria da Feira in June 2000.

References

Act	Entry into force	Deadline for transposition in the Member States	Official Journal
Framework Decision 2002/475/JHA	22.6.2002	31.12.2002	OJ L 164 of 22.6.2006

Amending act(s)	Entry into force	Deadline for transposition in the Member States	Official Journal
Framework Decision 2008/919/JHA	9.12.2008	9.12.2010	OJ L 330 of 9.12.2008

Related Acts

Report from the Commission of 6 November 2007 based on Article 11 of the Council Framework Decision of 13 June 2002 on combating terrorism [COM(2007) 681 final – Official Journal C 9 of 15.1.2008].
This second report notes that most EU countries evaluated for the first time have satisfactorily achieved implementation of the main provisions contained in the framework decision. Nevertheless, some major issues stand out. Concerning the EU countries evaluated for the second time, the additional information they have sent has allowed the Commission to generally conclude that there is a higher level of compliance. However, most of the main deficiencies identified in the first evaluation report remain unchanged.
The main concerns of the Commission are the deficient implementation, by some EU countries, of the provisions that establish a common definition of terrorism and the harmonisation of penalties for offences related to a terrorist group and of criminal liability of legal persons for terrorist offences.

Report from the Commission of 8 June 2004 based on Article 11 of the Council Framework Decision of 13 June 2002 on combating terrorism [COM(2004) 409 final – Official Journal C 321 of 28.12.2004].
This report reviews the measures taken by EU countries to comply with the framework decision on combating terrorism. According to it, most EU countries have taken the necessary measures to comply with the main provisions of this legal instrument. However, certain deficiencies were pointed out.

European Disability Strategy

Leave a reply

European Disability Strategy

Outline of the Community (European Union) legislation about European Disability Strategy

Topics

These categories group together and put in context the legislative and non-legislative initiatives which deal with the same topic.

Employment and social policy > Social measures for target groups: disability and old age

European Disability Strategy (2010-2020)

Document or Iniciative

Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions of 15 November 2010 – European Disability Strategy 2010-2020: A Renewed Commitment to a Barrier-Free Europe [COM(2010) 636 final – Not published in the Official Journal].

Summary

The Commission presents a strategy to increase the participation of people with disabilities in society and the economy, and enable them to fully exercise their rights.

The strategy is based on the effective implementation of the United Nations Convention on the Rights of Persons with Disabilities. Furthermore, the Commission’s action forms part of the Europe 2020 Strategy, and is based on the provisions of the European Charter of Fundamental Rights and of the Lisbon Treaty.

In order to foster the inclusion of people with disabilities, the Commission has identified eight areas for joint action between the EU and Member States. The areas were identified following an analysis of the results of the EU Disability Action Plan (2003-2010) and consultations carried out in Member States.

Accessibility

People with disabilities must have access to goods, services and assistive devices. Similarly, their access to transport, facilities, and information and communication technologies must be ensured in the same way as for able-bodied people.

Participation

People with disabilities must be able to fully exercise their fundamental rights as regards European citizenship. This Strategy must contribute to:

overcoming obstacles to the mobility of people with disabilities – as individuals, consumers, students, and economic and political actors;
guaranteeing the quality of hospital care and accommodation in residential institutions, financed by the Structural Funds;
guaranteeing accessibility of organisations, venues and services, including those relating to sports and culture.

Equality

Active policies must be implemented in order to promote equality at European level and in Member States. Furthermore, the Commission must ensure that European legislation is strictly applied to combat discrimination based on disability, particularly Directive 2000/78/EC for equal treatment in employment and occupation.

Employment

European action must allow the number of disabled workers in the traditional labour market to be increased, in particular by introducing active employment policies and improving accessibility to workplaces.

Action is also required in collaboration with social partners to foster intra-job mobility (including in sheltered workshops), to encourage self-employment and to improve the quality of jobs.

Education and training

Disabled pupils and students must benefit from an accessible education system and lifelong learning programmes. The Strategy therefore supports the accessibility of general education systems, individual support measures, and the training of professionals working in education.

In addition, people with disabilities must be better informed about the possibilities of training and mobility, in particular as part of the Youth on the Move initiative and the Education and Training 2020 strategy.

Social protection

Social protection systems can compensate for the income inequalities, risks of poverty and social exclusion to which people with disabilities are subject. In this context, the performance and sustainability of social protection systems should be assessed, including with regard to pension systems, public housing programs and access to basic services.

The strategy encourages the use of Structural Funds and the adoption of appropriate national measures.

Health

People with disabilities must benefit from equality of access to services and health facilities, including mental health facilities. In order to safeguard this principle of equality, services must be affordable and appropriate to people’s specific needs.

Additionally, specific attention should be paid to the health and safety of disabled workers.

External action

The EU undertakes to promote the rights of people with disabilities at international level. Its action is carried out in the context of the enlargement, neighbourhood and development policies as well as within international institutions such as the Council of Europe or the UN.

Implementation

The Strategy is based on a joint commitment of the EU institutions and the Member States. Their joint actions are aimed at:

raising society’s awareness of disability-related issues and promoting the rights of people with disabilities;
developing European funding possibilities;
improving the collection and processing of statistical data;
ensuring that the enforcement of the United Nations Convention is monitored in Member States and within European institutions.

Protection of personal data

Leave a reply

Protection of personal data

Outline of the Community (European Union) legislation about Protection of personal data

Topics

These categories group together and put in context the legislative and non-legislative initiatives which deal with the same topic.

Information society > Data protection copyright and related rights

Protection of personal data

Document or Iniciative

European Parliament and Council Directive 95/46/EC of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data [Official Journal L 281 of 23.11.1995] [See amending acts].

Summary

This Directive applies to data processed by automated means (e.g. a computer database of customers) and data contained in or intended to be part of non automated filing systems (traditional paper files).

It does not apply to the processing of data:

by a natural person in the course of purely personal or household activities;
in the course of an activity which falls outside the scope of Community law, such as operations concerning public security, defence or State security.

The Directive aims to protect the rights and freedoms of persons with respect to the processing of personal data by laying down guidelines determining when this processing is lawful. The guidelines relate to:

the quality of the data: personal data must be processed fairly and lawfully, and collected for specified, explicit and legitimate purposes. They must also be accurate and, where necessary, kept up to date;
the legitimacy of data processing: personal data may be processed only if the data subject has unambiguously given his/her consent or processing is necessary:
1. for the performance of a contract to which the data subject is party or;
2. for compliance with a legal obligation to which the controller is subject or;
3. in order to protect the vital interests of the data subject or;
4. for the performance of a task carried out in the public interest or;
5. for the purposes of the legitimate interests pursued by the controller;
special categories of processing: it is forbidden to process personal data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, trade-union membership, and the processing of data concerning health or sex life. This provision comes with certain qualifications concerning, for example, cases where processing is necessary to protect the vital interests of the data subject or for the purposes of preventive medicine and medical diagnosis;
information to be given to the data subject: the controller must provide the data subject from whom data are collected with certain information relating to himself/herself (the identity of the controller, the purposes of the processing, recipients of the data etc.);
the data subject’s right of access to data: every data subject should have the right to obtain from the controller:
1. confirmation as to whether or not data relating to him/her are being processed and communication of the data undergoing processing;
2. the rectification, erasure or blocking of data the processing of which does not comply with the provisions of this Directive in particular, either because of the incomplete or inaccurate nature of the data, and the notification of these changes to third parties to whom the data have been disclosed.
exemptions and restrictions: the scope of the principles relating to the quality of the data, information to be given to the data subject, right of access and the publicising of processing may be restricted in order to safeguard aspects such as national security, defence, public security, the prosecution of criminal offences, an important economic or financial interest of a Member State or of the European Union or the protection of the data subject;
the right to object to the processing of data: the data subject should have the right to object, on legitimate grounds, to the processing of data relating to him/her. He/she should also have the right to object, on request and free of charge, to the processing of personal data that the controller anticipates being processed for the purposes of direct marketing. He/she should finally be informed before personal data are disclosed to third parties for the purposes of direct marketing, and be expressly offered the right to object to such disclosures;
the confidentiality and security of processing: any person acting under the authority of the controller or of the processor, including the processor himself, who has access to personal data must not process them except on instructions from the controller. In addition, the controller must implement appropriate measures to protect personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access;
the notification of processing to a supervisory authority: the controller must notify the national supervisory authority before carrying out any processing operation. Prior checks to determine specific risks to the rights and freedoms of data subjects are to be carried out by the supervisory authority following receipt of the notification. Measures are to be taken to ensure that processing operations are publicised and the supervisory authorities must keep a register of the processing operations notified.

Every person shall have the right to a judicial remedy for any breach of the rights guaranteed him by the national law applicable to the processing in question. In addition, any person who has suffered damage as a result of the unlawful processing of their personal data is entitled to receive compensation for the damage suffered.

Transfers of personal data from a Member State to a third country with an adequate level of protection are authorised. However, they may not be made to a third country which does not ensure this level of protection, except in the cases of the derogations listed.

The Directive aims to encourage the drawing up of national and Community codes of conduct intended to contribute to the proper implementation of the national and Community provisions.

Each Member State is to provide one or more independent public authorities responsible for monitoring the application within its territory of the provisions adopted by the Member States pursuant to the Directive.

A Working Party on the Protection of Individuals with regard to the Processing of Personal Data is set up, composed of representatives of the national supervisory authorities, representatives of the supervisory authorities of the Community institutions and bodies, and a representative of the Commission.

References

Act	Entry into force	Deadline for transposition in the Member States	Official Journal
Directive 95/46/EC	13.12.1995	24.10.1998	OJ L 281 of 23.11.1995

Amending act(s)	Entry into force	Deadline for transposition in the Member States	Official Journal
Regulation (EC) No 1882/2003	20.11.2003	–	OJ L 284 of 31.10.2003

Successive amendments and corrections to Directive 95/46/EC have been incorporated in the basic text. This consolidated versionis for reference purpose only.

Related Acts

IMPLEMENTATION REPORT

Communication from the Commission to the European Parliament and the Council on the follow-up of the Work Programme for better implementation of the Data Protection Directive [COMM(2007) 87 final – Not published in the Official Journal].

This Communication examines the work done under the Work Programme for improved implementation of the Directive on data protection contained in the First report on the implementation of Directive 95/46/EC. The Commission highlights the fact that this has improved, has all Member States have now transposed the Directive. It emphasises that the Directive should not undergo any amendments at present.

It also notes that:

it will continue in its cooperation with the Member States and, if necessary, will launch official infringement proceedings;
it will prepare an interpretative communication regarding certain provisions in the Directive;
it will continue its implementation of the Work Programme
it will present EU-level sectoral legislation if there are major technological developments in a specific area;
it will continue cooperating with its external partners, in particular the US.

Report from the Commission of 15 May 2003 [COM(2003) 265 final – Not published in the Official Journal]
First report on the implementation of the Data Protection Directive (95/46/EC)

The report takes stock of the consultations carried out by the Commission to evaluate Directive 95/46/EC with governments, institutions, business and consumer associations, and individual citizens. The results of the consultations show that few contributors advocated a revision of the Directive. Furthermore, after consulting the Member States, the Commission noted the fact that a majority of them and, also, of the national supervisory authorities, did not consider it necessary to amend the Directive at present.

Despite the delays and gaps in implementation, the Directive has fulfilled its principal objective of removing barriers to the free movement of personal data between the Member States. The Commission also believes that the objective of ensuring a high level of protection in the Community has been achieved since the Directive has set out some of the highest standards of data protection in the world.

Other Internal Market policy objectives have, however, been less well served. The divergences in data protection legislation are still too great between Member States, and these disparities prevent multinational organisations from developing pan-European policies on data protection. The Commission will therefore do what is required to remedy this situation whilst hoping, wherever possible, that it will not be necessary to proceed by way of formal action.

With regard to the general level of compliance with data protection law in the EU, there are three main problems:

an under-resourced enforcement effort;
very patchy compliance by data controllers;
an apparently low level of knowledge of their rights among data subjects, which may be at the root of the previous phenomenon.

In order to ensure the better implementation of the Data Protection Directive, the Commission has adopted a work programme comprising a number of actions which need to be taken between the adoption of this report and the end of 2004. These actions are made up of the following initiatives:

discussions with Member States and data protection authorities on the changes needed to bring national legislation fully in line with the requirements of the Directive;
association of the candidate countries with efforts to achieve a better and more uniform implementation of the Directive;
improving the notification of all legal acts transposing the Directive;
simplification of the conditions for international transfers of data;
promotion of privacy enhancing technologies;
promotion of self-regulation and European Codes of Conducts.

PRIVACY AND ELECTRONIC COMMUNICATIONS DIRECTIVE

Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector (Directive on privacy and electronic communications) [Official Journal L 201 of 31.07.2002]

This Directive was adopted in 2002 at the same time as a new legislative framework designed to regulate the electronic communications sector. It contains provisions on a number of more or less sensitive topics, such as the Member States keeping connection data for the purposes of police surveillance (the retention of data), the sending of unsolicited e-mail, the use of cookies and the inclusion of personal data in public directories.

STANDARD CONTRACTUAL CLAUSES FOR THE TRANSFER OF PERSONAL DATA TO THIRD COUNTRIES

Commission Decision 2004/915/EC of 27 December 2004 amending Decision 2001/497/EC as regards the introduction of an alternative set of standard contractual clauses for the transfer of personal data to third countries [Official Journal L 385 of 29.12.2004]

The European Commission has approved new standard contractual clauses which businesses can use to ensure adequate safeguards when personal data are transferred from the EU to third countries. These new clauses will be added to those which already exist under the Commission Decision of June 2001 (see below).

Commission Decision 2001/497/EC of 15 June 2001 on standard contractual clauses for the transfer of personal data to third countries under Directive 95/46/EC [Official Journal L 181 of 04.07.2001]

This Decision sets out standard contractual clauses to ensure an adequate level of protection of personal data transferred from the EU to third countries. The Decision requires Member States to recognise that companies or bodies which use these standard clauses in contracts relating to the transfer of personal data to third countries ensure an “adequate level of protection” of the data.

PROTECTION OF DATA BY THE COMMUNITY INSTITUTIONS AND BODIES

Regulation (EC) No 45/2001 of the European Parliament and of the Council of 18 December 2000 on the protection of individuals with regard to the processing of personal data by the Community institutions and bodies and on the free movement of such data [Official Journal L8 of 12.01.2001].

This Regulation aims at ensuring the protection of personal data within the institutions and bodies of the European Union. To this end:

it includes provisions which guarantee a high level of protection of personal data processed by the Community institutions and bodies; and
it provides for the establishment of an independent supervisory body to monitor the application of these provisions.

Fundamental Rights Agency

Leave a reply

Fundamental Rights Agency

Outline of the Community (European Union) legislation about Fundamental Rights Agency

Topics

These categories group together and put in context the legislative and non-legislative initiatives which deal with the same topic.

Institutional affairs > The institutions bodies and agencies of the union

Fundamental Rights Agency (FRA)

Document or Iniciative

Council Regulation (EC) No 168/2007 of 15 February 2007 establishing a European Union Agency for Fundamental Rights.

Summary

The objective of the Agency is to provide Community institutions and bodies and Member States of the European Union (EU) with assistance and expertise on fundamental rights when implementing Community law. The Agency aims to help the institutions, bodies and Member States fully respect these rights.

The Agency collects data on fundamental rights in the areas of Community competence listed in its Multi-annual Framework Programme. The Agency is open to participation by candidate countries. The Council may also decide to invite countries that have a Stabilisation and Association Agreement with the EU to participate in the work of the Agency. Thus, the gradual alignment of these countries’ legislation with Community law is facilitated, and their efforts towards European integration supported.

The Multi-annual Framework, covering a period of five years, identifies the Agency’s thematic areas of activity. These areas must include the fight against racism, xenophobia and related intolerance.

The tasks of the Agency must be carried out within the confines of the thematic areas of activity and include:

independent collection, analysis, dissemination and evaluation of relevant, objective, reliable and comparable information and data on the specific effects on fundamental rights of action taken by the EU, and on good practice in terms of respect for and promotion of these rights;
development, in cooperation with the Commission and the Member States, of standards to improve the comparability, objectivity and reliability of data at European level;
scientific research and surveys, preparatory studies and feasibility studies;
formulation and publication of conclusions and opinions on specific thematic topics and on the development of fundamental rights in implementing policies, aimed at the European institutions and the Member States when implementing Community law;
publication of an annual report on fundamental rights issues covered by the areas of the Agency’s activity;
publication of thematic reports based on its analyses;
publication of an annual activity report;
development of a communication strategy, and promotion of dialogue with civil society in order to raise public awareness of fundamental rights.

The Agency must coordinate its activity and establish a cooperation network with civil society (‘Fundamental Rights Platform’) involving various fundamental rights players. The idea is to exchange information, pool knowledge and ensure cooperation between the Agency and the relevant stakeholders.

The Agency must also establish close institutional relations at international, European and national levels, particularly with the Council of Europe, the Organisation for Security and Cooperation in Europe (OSCE), the competent Community agencies, and governmental agencies and public bodies, including national institutions for the protection of human rights. The aim is to cooperate and avoid duplication of work.

The Agency’s bodies are structured as follows:

the Management Board (planning and monitoring body) comprises one independent person appointed by each Member State, one independent person appointed by the Council of Europe, and two representatives of the Commission. The term of office of Management Board members is five years and not renewable. The Management Board adopts the annual work programme and an annual activity report. It appoints and, if necessary, dismisses the Agency’s Director. It draws up the annual draft and final budgets;
the Executive Board is made up of the Chairperson and the Vice-Chairperson of the Management Board, two other members of the Management Board elected by the Management Board, and one of the Commission representatives on the Management Board. The Management Board member appointed by the Council of Europe may also participate in the meetings of the Executive Board. The task of the Executive Board is to assist the Management Board;
the Scientific Committee is composed of 11 independent persons who are highly qualified in the field of fundamental rights. The members of the Scientific Committee are appointed by the Agency’s Management Board following a selection procedure and after consulting the competent committee of the European Parliament. Their term of office is five years and not renewable. The Scientific Committee is the guarantor of the scientific quality of the Agency’s work.

The Director of the Agency is appointed by the Management Board, taking into account the opinions of the European Parliament and the Council of the European Union, from a list of candidates drawn up by the Commission. The Director is responsible in particular for the day-to-day administration, the performance of the Agency’s tasks and the implementation of its budget.

The Agency’s staff and Director are subject to the regulations and rules applicable to officials and other servants of the European Communities. The Agency must develop good administrative practices in order to ensure the highest possible level of transparency concerning its activities.

The Agency’s budget, €15 million in 2008, is scheduled to reach up to €22 million by 2013. It is proposed that the Agency should have a total staff of around 80 by 2013. The budget will be covered by a Community subsidy, payments received for services rendered, and possible financial contributions from organisations with which the Agency cooperates, candidate countries and countries with which the EU has concluded a Stabilisation and Association Agreement. The Agency’s expenditure includes operating expenses, staff remunerations, and administrative and infrastructure costs.

Background

The Agency has been operational since 1 March 2007. It is the legal successor to the European Monitoring Centre on Racism and Xenophobia (EUMC), having taken over its legal rights and obligations and its financial commitments. Regulation (EC) No 1035/97 establishing the European Monitoring Centre on Racism and Xenophobia has been repealed with effect from 1 March 2007. The Agency is based in Vienna.

References

Act	Entry into force	Deadline for transposition in the Member States	Official Journal
Regulation (EC) No 168/2007	23.2.2007	–	OJ L 53 of 22.2.2007

Related Acts

Agreement between the European Community and the Council of Europe on cooperation between the European Union Agency for Fundamental Rights and the Council of Europe [Official Journal L 186 of 15.7.2008].
This Agreement sets up a framework for the cooperation between the FRA and the Council of Europe. The purpose is first of all to avoid duplication, and secondly, to complement and provide added value to their work. The cooperation is based on regular contacts. To this end, a contact person is appointed in both organisations. In addition, representatives of each will be allowed to attend the other’s meetings as observers. The FRA and Council of Europe must ensure the exchange of all relevant, non-confidential data and information, and the wide dissemination of the results of their activities. To further promote complementarity, regular consultations are to be held between the two to coordinate the FRA’s activities. These consultations may also lead to the development of joint and/or complementary activities on the basis of their common interests.

Council Decision 2008/203/EC of 28 February 2008 implementing Regulation (EC) No 168/2007 as regards the adoption of a Multi-annual Framework for the European Union Agency for Fundamental Rights for 2007-2012 [Official Journal L 63 of 7.3.2008].
This Decision establishes a Multi-annual Framework stipulating the Agency’s thematic action areas for the period 2007-12. The Framework contains nine thematic areas: racism, xenophobia and intolerance; discrimination; compensation of victims; the rights of the child; asylum, immigration and integration of migrants; visas and border control; participation of EU citizens in the EU’s democratic functioning; information society; and access to efficient and independent justice. The Agency can work outside these thematic areas at the request of the European Parliament, Council or Commission.