28 March 2012
Update 15 September 2003
The Financial Times reports that the Italian Presidency of the Council introduced the idea that EU quotas should be set to try and control immigration. The Commission has been asked to prepare a study on a quota system based on each state setting its own quota. Commissioner Vittorino said that a quota system would give the Commission "greater leverage" when negotiating re-admission agreements. So far only three of the 11 targeted third world countries (Sri Lanka, Hong Kong and Macao) have completed agreements - these allow EU states to return rejected refugees and asylum-seekers (and those who passed through a country) through a quick procedure. It is unclear how this would affect "the estimated half-million clandestine immigrants".
In the run-up to the Informal JHA meeting the Italian security services released a report from CESIS (which coordinates their work) which said that groups like Al Qaeda were using illegal immigration traffickers. No examples were provided, nor is there any evidence of this claim. The Italian Interior Minister, Giuseppe Pisanu, said: "Illegal immigration is a filter for drug trafficking, arms arms and terrorism".
sources: FT and Reuters
There was an Informal meeting of the EU's Justice and Home Affairs Council on 12-13 September in Rome at the "Trevi" International Conference Centre of the Police Academy. The Italian Minister of the Interior, Mr Gossipy Pisanu, chaired the meeting on 12 September. The press release says that the items on the agenda were the following: Proposal for a study to device a system of immigration quotas to be used at the European level; Integrated management of external borders: projects, resources and methodologies; Fight against terrorism and organised crime: development of police co-operation and enhancement of Europol. The Minister of the Justice, Mr Roberto Costly, chaired the meeting on 13 September. The items on the agenda were: Length of civil trials: Prospects to limit their duration and relevant initiatives, with particular reference to alternative systems to settle controversies; Enforcement of prison sentences in the European Union: alternative sentences and condition of prisons.
Two Background Notes - the only publicly available information so far are reproduced below.
Italian Presidency: Background note
Execution of custodial sentences in the EU (11 September 2003)
"The Italian Presidency intends to submit to the attention of the Member States the issue of the execution of custodial sentences.
Such issue has nowadays a special relevance for two reasons. Firstly, there is an incidental reason. The issue of the custodial execution is extremely topical in consideration of the forthcoming implementation of the Framework decision on the European arrest warrant, that, as you know, may be issued also for executive purposes, when a final criminal sentence exists. Moreover, this issue is connected with that of the harmonisation of sentences within the European Union, that is already being dealt with by the Council.
Secondly, there is a reason of general character, connected with the implementation of the so-called Third Pillar of the Union. The Council recognised several times that the principle of mutual recognition of judicial decisions may not substitute the work of harmonisation of legislations, as the two models must co-exist in compliance with the system outlined by Title VI of the TEU.
However the mutual recognition is based on the mutual trust between the state legal systems and this trust is increased by the knowledge and progressive integration of the different sectors of national legislations.
In the field of criminal co-operation, the experience of the drafts framework decisions relevant to pecuniary penalties and the execution of orders of assets freezes has recently proved the difficulty of applying in practice the mutual recognition to legal fields where: a) the work of harmonisation completely lacks; b) even a sufficient degree of knowledge of the different national legislations lacks.
It derives from that the necessity of making the conclusion n. 37 of the Tampere summit topical, with which the European Union committed itself to start the work relevant to the aspects of the procedure, for which it is necessary to fix common minimum rules, in order to facilitate the application of the principle of the mutual recognition, according to the fundamental legal principles of the Member States.
The awareness of the importance of fixing common minimum rules in sensitive fields of law and criminal procedure will drive the Commission to take, in the near future, specific legislative initiatives on procedural guarantees and on alternative measures to pretrial custody.
This action must be extended, with the future in mind, to the field of the enforcement of custodial sentences, too.
In this field two different interests have got to be met: - the interest of the State, in which the sentence has been passed, in its enforcement - and the interest of the convict in a real possibility of his/her reintegration into society.
These interests are recognised by the conventional law in force: both the Hague Convention of 1970 on the international validity of the criminal judgments, and the Convention of 1991 on the enforcement of foreign criminal judgments, restrict the possibility of enforcing the sentence in another Member State to the cases in which the convict is a citizen of this State or resides in it or is already serving another sentence in it.
The Convention of 1991 on the enforcement of foreign criminal judgments allows both the State of residence and the State of origin to ask for a transfer of the enforcement of the sentence.
In the framework of the European Council the limits of conventional law must be overcome.
New initiatives that may lead, in the future, to a work of harmonisation of national legislations in the field of the criminal execution or at least of some of its most relevant aspects are necessary.
The perspective of a common space of freedom and justice, and therefore, the building of the Union's Third Pillar, requires that the attention is addressed to the executive aspects of the criminal sanction.
The application of the principle of the mutual recognition in the field of criminal procedures in personam, through the Framework decision on the European arrest warrant, and the perspective of a rapprochement between the national legislations require the knowledge by all the Member States, of the concrete functioning of the mechanism involved in a delicate sector such as that of the execution of custodial sentences. This is extremely urgent in view of the next enlargement of May 2004 to the ten States that have completed their accession procedures.
In the field of custodial sentences, the Union has so far pursued a sectorial policy, in that the effort of harmonisation of the minimum limits of the penalty relevant to the maximum duration of custodial sentences has only been addressed to particularly serious forms of criminality (terrorism, traffic of human beings, etc.).
An approach of this kind, in the field of pecuniary penalties, has not been adopted yet, with the exception of the recent proposal of a framework decision relevant to the criminal responsibility for sea pollution made by the Commission, that is included among the priorities indicated by the Italian Presidency and has already been submitted to the working group of substantive criminal law.
The Council, as far as it is concerned, has already had the occasion of pointing out that different practical effects may correspond to the same level of maximum penalties applicable depending to the Member State of execution.
This because both the afflictive aspect and the re-educating perspective of the criminal penalty provided for, depend on a series of variables constituted by the effectiveness of the investigations performed, the policy concerning the assertion of the criminal prosecution, the margins of discretionary powers the judicial authorities have in the concrete infliction of the penalty, the conditions of execution of the penalty, etc.
The Council has therefore welcome the preservation of the consistency of the national criminal systems and has adopted, in April 2002, an approximate scheme of the levels of sentences that can address the works of rapprochement, though retaining the flexibility that is necessary to respect the national legal principles and traditions.
Beyond the level of the applicable sanctions and the sentences actually provided for, the Italian Presidency holds that the European Union should deal with the modality by which the sentences are actually executed.
A reason is, as already said, that the Union has firmly committed itself to implementing the principle of the mutual recognition. In general, such principle implies that a sentence, inflicted in a Member State, must have the possibility of being executed in another Member State. By now the entry into force of the European arrest warrant, that will enable a more effective execution of custodial sentences within the European legal space, is forthcoming.
If that is true, the knowledge of the differences existing in the State legal systems in the execution of final custodial sentences appears of fundamental importance, in order to implement a common and in-depth reflection about the modalities of application of the same sentences.
Just think of the peculiarity of the Italian execution system, that foresees, on one hand, a range of measures alternative to detention, aimed at reaching an effective reintegration of the sentenced person, on the other hand, an aggravated prison regime for the most serious forms of crime (e.g., domestic and international terrorism, Mafia-type offences) for which the adoption of such a custodial system can concretely protect the civil society needs of
defence from the possible persistence of dangerous links between the convict and the criminal organisation of reference that keeps operating externally.
Leaving from such an introduction, a further reason to develop a reflection on the issue of criminal execution is the possible, future, harmonisation of national legislations, or of some of their aspects. A comparison between the different national systems and a research of the constitutional and cultural principles we share, will bring to a better understanding of the single national systems. That will bring, in the immediate time, to a higher level of mutual trust and will favour the identification of a common minimum basis useful for a future harmonisation of the state legislations relevant to the criminal
The European Union will obviously have to accompany the efforts of the Member States, confront at all levels with the issues of prison overcrowding, and frequency of recidivisms, and encourage the initiatives in favour of the identification of alternative penalties that will enable, at the same time, the reduction of the prison population and facilitate the possibilities of a true social reintegration of the sentenced persons.
For these reasons the Italian Presidency holds that the JHA informal meeting of Rome on next 12 and 13 September may represent the appropriate moment to analyze the most important aspects connected with such an important issue in view of the development of appropriate initiatives in this field.
Background Note on:
The length of the civil process
As known, among the primary aims of the Presidency, there is the support of the themes of civil justice which directly involve everyday life and the rights of the citizens of the European Union.
In particular the Presidency intends to develop the debate on the possible means aimed at improving and facilitating access to justice, both thanks to the reduction of the length of the civil process and by the adoption of alternative systems of resolution of litigation.
The context of the initiatives at community level is that of the conclusions of the European Council of Tampere of October 1999 and of the Treaty of Amsterdam.
On one side, as a matter of fact, the general principle expressed by that Council, of the mutual recognition of the judicial decisions, in the light of the strengthening of cooperation in civil matters, has been understood in a broader sense and has entailed some initiatives, expressly wanted by the same Council (see point 30 of the conclusions), also as regards the simplification and speeding up of the procedures and the singling out of alternative extrajudicial procedures.
On the other side, the carrying out of the provisions of the Treaty of Amsterdam regarding the progressive creation of a common space of justice involve the singling out of procedure rules which have to be neared enough so as to facilitate the access of citizens to justice, in particular to litigation with a transnational aspect (see Art.65 of the Treaty and the Action Plan of Vienna for the implementation of the provisions of the Treaty of Amsterdam, concerning a space for freedom, justice and security.
Said needs derive from the registered increase of cases of transnational litigation, as consequence of the increasing creation of the inner market and the intensification of the exchange and mobility of the citizens, further enlarged by the development of transnational electronic trade. Said types of litigation are characterised, more than the inner ones, by the slowness and the cost of the proceedings and often burdened by practical linguistic and financial difficulties and by complex issues of conflict of laws and jurisdiction, which prevent the citizen from addressing justice, mainly because of the lack of proceedings "proportional" to the value of the litigation.
In order to satisfy said needs, some initiatives have been taken for the mutual recognition of judicial decisions and for the elimination of exequatur procedures for uncontested claims (European Enforcement Order), for which a quick resolution is sought, and other more recent initiatives in terms of alternative solution systems of litigation and also simplified procedures for litigation entailing credits of lower amounts.
Besides, it should be stressed that community policy favouring such instruments and the initiatives adopted in this regard, traditionally developed within the framework of the safeguard of the common market and consumers.
As a matter of fact, as far as ADR are concerned, two recommendations of the Commission have been adopted, i.e. the Recommendation of March 30, 1998 regarding the principles applicable to the bodies responsible for the extrajudicial solution of litigation in the area of consumption and the Recommendation of April 4, 2001, on the principles applicable to extrajudicial bodies which take part in the consensual resolution of litigation in the field of consumption.
Besides, the necessity of a simplification of procedures related to transnational litigation of minor entity and regarding consumers, was recently stressed by the European Parliament (see OG C of May 17, 2001), whilst the general aim to improve access to justice for consumers had already been pursued both in the Green Book of 1993 on the access of justice on the side of consumers and the resolution of litigation in the field of consumption in a single market and in the 1996 Action Plan on the access of consumers to justice.
On the other hand, in said field the Commission had already proposed the introduction of a simplified European form aimed at improving access to judicial procedures, as well as the promotion on behalf of the Member States of already existing national procedures in the field of litigation.
Said aim is similar to the one implied in the initiatives involving ADR and seems to be stressed in the ascertainment (resulted also following the study "Cost of judicial barriers for consumers in a single market", wanted in 1995 by the European Commission) of the judicial uncertainty for consumers in a single market due to the disproportion which often exists between the value of the credit and the costs to be met in order to obtain a judgment against the defendant domiciled in another Member State.
Besides, in terms of measures aimed at simplifying and accelerating the cases of litigation of modest amount, the Commission produced a green book in 2002; various principles were mentioned, aimed at guaranteeing a favoured access to said deflationary measures. Said principles could be proposed again in a possible community law instrument and in particular: - the optional or obligatory nature of the community proceedings in comparison to national proceedings;
- the creation of standard forms for the introduction of the proceedings, to be filled in also by the interested part and to be submitted trough modern means of communication and also via e-mail (utilising for example the electronic signature, see directive 1999/93 EC of the European Parliament and of the Council of Dec.13, 1999, regarding a community framework for electronic signatures);
- the introduction within the simplified proceedings of alternative methods for the resolution of litigation which could further help in strongly reducing time and expenses; on this point there are various options which range from being compelled to apply to ADR before starting a proceeding which ends with the pronouncement of judgment, to the right for judges to encourage the parties to apply to ADR. As regards ADR, of particular interest in this context, they could be largely applied in the area of those conflicts for which the cost of the judicial procedure results being out of all proportion to the value of the credit.
The Recommendation of March 30, 1998, already adopted in the field of ADR and referred to in a litigation through the active intervention of third parties - independently from the fact that they propose or impose a solution by means of a decision which is usually binding - has pointed out certain fundamental principles which the conciliation body has to follow, may be so summarised:
1) the guarantee of independence of the adjudicatory body; 2) transparency of procedures; 3) adversarial; 4) effectiveness of the procedure, guaranteed by the systems which ensure the access of the consumer without the obligation of a legal representative; 5)lawfulness; 6)freedom of access to the judicial protection of rights.
The subsequent Recommendation of 4 April 2001 confirmed the principles set forth in the 1998 Recommendation, extending their scope of application to all extra-judicial procedures that, irrespective of their name, lead to the settlement of a dispute through the active participation of third parties also when they only facilitate a settlement by making the parties meet and helping them find a common solution, based on consent.
As far as consumer protection is concerned, the European Extra-judicial Network (EEJ-Net) has been set up to help consumers focus on a single contact point (Clearing House) in their respective Member States to obtain information on national systems, and in case of trans-border disputes, to obtain rapid and simple access to a legal channel for the settlement of extra-judicial disputes in the supplier country through a national contact point linked through the net with the contact points set up in each member State.
Other provisions that expressly provide for MS to foster the use of extra-judicial bodies to settle disputes concerning consumers, are embodied in the Directive of the European Parliament and the Council of 8 June 2000 in the matter of electronic commerce.
Other initiatives are being developed: the European Parliament in its opinion expressed on regulation no. 44/2001 of the Council on judicial jurisdiction and the recognition and enforcement of decisions in civil and commercial matters, invited consumers to thoroughly use extra-judicial settlements in respect of transactions in the matter of consumption, especially where the parties are domiciled in different member States. Furthermore, the Commission, when implementing the conclusions adopted by the Council on 29 may 2000, published a green book in April 2002 in view of
the definition of the basic common principles between MS.
The above study highlights the differences in which the ADR are taken into consideration in the different MS, sets forth general concepts and the very different and confused terminology involved. Furthermore, there are different forms of ADR, depending on whether they are exercised by a judge or entrusted by a judge to a third person, or whether the parties resort to it outside any judicial procedure.
The many terminologies and procedures, as well as the different conceptual incidence of the ADR within the common law and the written law systems, impose a careful assessment of the measures adoptable at a community level to ensure their satisfying approximation between Union countries.
The green book has, in any event, fostered wide-ranging consultation between national experts, the institutional bodies and the concerned circles on a series of legal problems connected to the subject matter at issue; the main aspects that should be tackled today are the following:
- the relation between ADR and judicial protection of rights (possibility of envisaging the burden of a prior exercise of an alternative remedy);
- the binding nature of contract clauses on mediation, potentially unfair especially for the "weak" party to the contract;
- the payment, if any, of the court costs if the party has refused to participate in the mediation without any reason;
- the possibility of resorting to ADR during the trial;
- the advisability of envisaging the suspension of the time limitation of the right for the whole duration of the mediation procedure;
- the protection of the confidentiality of the ADR procedure;
- the enforcement of the agreements reached during the mediation;
- procedure costs;
- the training of the mediators and qualification and control of the specialised bodies;
- to raise the awareness of judges in respect of the ADR reasons and purposes so as to enhance its application also during trials when the judge
considers that the conditions for an extra-judicial resolution of the dispute have been met.
After the consultation, a binding community instrument could be adopted to approximate ADR methods.
A common set of rules would solve the problem of enforcing the agreements reached by ADR, set forth the ethical rules to be complied with by the mediators and establish the basic principles to be abided by within the mediation proceedings.
The alternative solution of resorting to a non binding instrument has also been considered. MS would only have to foster the ADR systems and set out the relevant basic principles, leaving each MS to govern mediation proceedings through their own domestic law. The above initiatives imply some preliminary questions of paramount importance:
- the type of instrument to be adopted: a directive, which sets forth the key principles but leaves MS a certain room for manoeuvre, or a directly applicable regulation which leaves no space to national peculiarities;
- the scope of application of the instrument could also be limited to transborder disputes.
In any case, a common European procedure could also be non mandatory, i.e. concurrent with national procedures. The choice between uniform procedures or harmonised procedures - the latter probably lacking a legal basis under the Treaty - also depends on the political choices that will be adopted on these issues, which concern both the initiatives in the matter of ADR and those on simplified procedures for minor disputes. In particular, the measures that can be adopted in the field of judicial cooperation in civil matters under Article 61 of the European Community Treaty are admissible only if they foster the gradual setting up of a common space of freedom, security and justice provided for in Article 65, and consequently only if they refer to transnational disputes.
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