Secret EU-US agreement being negotiated
01 September 2002
Statewatch has obtained a copy of the secret negotiating agenda for an agreement (treaty) between the EU and the US on judicial cooperation in criminal matters which would have major implications for peoples' rights and liberties.
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”.
The proposed agreement started out as one on combating terrorism but it now extends to crime in general. The Council of the European Union (the 15 governments) has authorised the EU Presidency to:
"open negotiations with the United States for the purpose of concluding one or several agreements on cooperation in criminal matters between the EU and the US. The negotiations should be.. conducted in the spirit of cooperation between likeminded and equal partners" (emphasis added)
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 penal