28 March 2012
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agreement being negotiated
- secret agreement on criminal matters, investigative procedures and joint teams being negotiated without the the European or national parliaments being consulted
- Statewatch refused access to full-text of document because: the interest of protecting the Councils objectives outweighs the interest in democratic control.. which is referred to by the applicant
The draft agreement is going to be discussed in depth for the first time at the Informal Meeting of EU Justice and Home Affairs Ministers in Copenhagen on 13 September - John Ashcroft, the US Attorney General will take part in these discussions.
Tony Bunyan, Statewatch editor, comments:
It is quite unacceptable in a democracy that an agreement should be negotiated with a non-EU state in secret, without the European and national parliaments or civil society having any say whatsoever.
This is a primary example of fundamental rights and protections built up in the EU over decades being put up for negotiation by EU governments to meet US demands in the so-called war on terrorism.
In the negotiations with the US the EU governments appear
to be willing to drop or modify (in a negative way) a number
of basic rights and protections built into EU law and protected
by the European Convention on Human Rights.
The agreement (and any future agreements) will be negotiated and agreed in secret under Articles 38 and 24 of the Treaty on the European Union. Neither national or European parliaments are required to be consulted let alone civil society.
The "line to take"
The negotiating mandate is divided into two parts: "Issues to be raised by the EU" and "Issues raised by USA" and against each issue raised is the EU "Line to take". The issues raised are the result of informal talks between the EU and US that began on 29 September last year.
As regards "serious crime" the EU wants to "facilitate search and seizure in bank accounts" and on improving cooperation and "reducing delays" proposing the creation of "contact points in each Member State and in the USA".
The EU is also making two major proposals: First, that the legal basis should be made for:
"the setting up of joint investigative teams"
to conduct undercover police operations. There is no reference to rules on the civil or criminal liability of team members or to the legal rules to be applied to their operations.
Second, under the heading: "Improve investigation procedures" the EU is proposing:
"creating a common approach to searches, seizures, interception of telecommunications"
There is no mention of Article 8 of the ECHR (the right to private and family life) nor any reservations on issues such as dual criminality or extraditability.
The EU positions under the heading "Guarantees and safeguards" make no mention of the European Convention on Human Rights and worryingly says the issue of "data protection" should be "raised by the EU at a later stage" - this is because the USA does not have a data protection act.
Most extraordinary of all, under the same heading, on the issue of the "death penalty" the EU "line to take" is:
"inform the USA that some Member States may wish to have specific provisions in this regard" (emphasis added)
It appears that "some" EU Member States are willing to become "accomplices" to the death penalty, by supplying evidence and witnesses to the US in death penalty trials - even though all EU member states have ratified Protocol 6 to the ECHR and have signed Protocol 13 to the ECHR (which ban the death penalty absolutely).
The "Issues raised by the USA" cover "narrowing down the political offence exception" (to extradition), extradition of nationals and "Special courts" (on which the EU is to "seek assurances" that those extradited will be the subject of ordinary US courts proceedings).
On the issues raised by the US on extradition the traditional "political offence" exception to extradition could be weakened by taking a modern approach and many EU member states may have to drop constitutional bans on extraditing their own nationals. This latter protection is to be dropped under the proposed EU Framework Decision on arrest warrants but within the EU it is still subject to the ECHR and EU court judgements and to make such changes in this context is highly questionable.
Nor is there any mention of a refusal to extradite, for example, to give protection against "double jeopardy" (which means that a person cannot be tried on the same facts where a judgement has already been given in one state).
All EU measures agreed in this field are based on the principle that all member states have ratified the European Convention on Human Rights. The US has not ratified the ECHR and cannot because it is not a member of the EU.
There are grave doubts about adequate parliamentary or judicial control over the ratification and implementation of the treaty. It is not clear whether the usual powers of the EU Court of Justice on criminal law and policing matters will extend to such a treaty and data protection is to be taken up at a "later date".
From terrorism to crime in general
In the immediate aftermath of 11 September the EU's Justice and Home Affairs Council on 20 September agreed that an agreement should be negotiated with the USA on "penal cooperation on terrorism" (emphasis added).
On 21 September the US Mission in Brussels wrote to the EU Presidency in response calling for: "a formal agreement with the EU on judicial cooperation in criminal matters" (emphasis added).
On 29 September informal exploratory talks were started between "the US authorities and the [EU] Troika operational in Washington" on an agreement - this was followed up when "a high-level Troika from Ministries of Interior and Justice, the Commission and the [Council] General Secretariat visited Washington DC on 18 October 2001". At the Gent European Council (the 15 EU prime ministers) on 19 October the EU agreed to the broadening of an EU-US agreement from "terrorism" to "criminal" matters in general (including terrorism).
At the informal meeting of the Justice and Home Affairs Council (JHA) on 14-15 February the Ministers endorsed the opening of negotiations with the US on: "one or several agreements on cooperation in criminal matters" and to "continue the informal exploratory talks with the US side". The JHA Council on 25-26 April authorised the EU Presidency (then held by Spain, now Denmark has taken over) to: "negotiate an agreement on judicial cooperation in criminal matters, including terrorism, on the basis of Articles 38 and 24 TEU" (Council press release).
Articles 38 and 24 of the Treaty on European Union, as agreed at Amsterdam in 1997, allow the Council of the European Union (the 15 governments) to negotiate and conclude agreements with non-EU states. The Articles do not provide for any parliamentary involvement (national or European) at the stage of agreeing the mandate for negotiations or during the negotiations - in fact, right up to the conclusion of any negotiations the content of the talks are, in principle, secret.
On 13 March Statewatch applied to the Council for the first two drafts of the EU discussions on the negotiations (neither of which is listed on its public register of documents). On 3 April the Council refused access because it would be "prejudicial" to the EU's interests "in the efficient conduct of negotiations with a third country". Statewatch appealed against this decision on the grounds that to withhold access on an issue which could have:
"huge implications for peoples' rights and liberties.. [and] it is quite unacceptable in a democracy that such an agreement should be negotiated and agreed in complete secrecy"
In response the Council said on the issue of "public interest" that the:
"interest of protecting the Council's objectives outweighs the interest in "democratic control" of the negotiating process which is referred to by the applicant"
Statewatch has received the official reply with two documents
which the Council gives "partial access" (with nine
of the 14 pages of text blocked out) subject to the exception
(under Article 4.1.a: International relations of the 2001 Regulation
on access). However, Statewatch obtained a later version of the
documents in question which shows that many of the rights and
protections built into EU laws and judgements are under imminent
See: Statewatch analysis
1. 6438/1/02 partial access (5 pages)
2. 6438/2/02: full-text (14 pages)
3. 10288/02: Negotiations with USA on judical coperation in criminal matters - Procedure
4. Statewatch application for access to documents 6438/02 and 6438/1/02: 7663/02
5. The Council of the European Union's decision to refuse access: 7664/02
8. Related story: Germany says it cannot hand over evidence
for a case whether death penalty applies: BBC
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