AMNESTY INTERNATIONALÕS HUMAN RIGHTS ASSESSMENT OF THE TAMPERE
AGENDA
Brussels 2 June, 2004
1. Overview
The first stage of the so-called ÒTampereÓ agenda is now over. The agenda, agreed at the Tampere EU Summit of 1999, set out the basis for the EUÕs goal of constructing an ÒArea of Freedom, Security and JusticeÓ across the Union. Five years on, Amnesty International answers the question: is the EU is now more free, secure and just as a result of five years of negotiations and legislation?
Amnesty InternationalÕs assessment of Tampere focuses on the two dominant elements: asylum and immigration; and judicial cooperation in criminal matters. However, evaluating the achievements of the Tampere agenda also requires an assessment of the overall picture of human rights observance and protection within the EU, as exemplified by both legislative measures and actual compliance. Unfortunately, from a human rights perspective, the picture is not positive.
The Tampere commitment to "full and inclusive application of the Geneva Convention" has evaporated. The determination to provide security is as yet neither matched by effective cooperation nor balanced with essential safeguards. The Charter of Fundamental Rights has prompted complacency rather than accountability. The vision of the Area of Freedom, Security and Justice has turned out to be a parallel universe to the daily reality experienced by asylum seekers, illegal immigrants, suspects in police stations and defendants in courts.
The events of 11 September 2001 have had a far reaching and negative impact across the main policy areas. The fight against "illegal immigration" has become closely linked to counter-terrorism. Measures towards harmonising the treatment of asylum seekers arriving in the EU have become confused with issues of security. The whole complex of judicial cooperation has been cast in the counter-terrorist mould, creating greater momentum for the creation of the European Arrest Warrant but neglecting the human rights dimension.
As far as the development of the Common European Asylum System is concerned, harmonization through minimum standards has produced outcomes that in some cases do little more than catalogue national practice and on key issues contravene international refugee and human rights law. While there have been some positive developments, in particular regarding the adoption of the qualification directive, Amnesty International fears these improvements will remain "dead letters" given the increasing difficulties experienced by refugees to access EU territory and the lack of proper safeguards in asylum procedures.
EU member states have expressed satisfaction with the completion of the asylum
directives within the deadline of May 1. This is understandable insofar as it
will pave the way for further developments in this area under a new
institutional framework with sole initiative by the Commission, qualified
majority voting in the Council and European Parliament co-decision.
However, the euphoria barely hides the fact that the commitment of EU member states to international human rights standards as laid out at Tampere has been corroded by a steady deterioration in refugee rights and a tightening of controls which, in their most extreme form, reveals complete negligence towards the plight of individuals suffering persecution, conflict and violence.
EU judicial cooperation has the principle of Òmutual recognitionÓ as its cornerstone. However, the initial promise that procedural safeguards would be the essential complement to prosecution instruments has been betrayed. Ironically the recent bombings in Madrid revealed an embarrassing lack of progress in implementation, and of real commitment on the part of member states to work together effectively to combat threats to security.
Despite warnings from Amnesty International and others working in this field, that inadequate measures to protect human rights would undermine the effort to fight crossborder crime, no pressure has been forthcoming from the Council to address this imbalance. The Commission has belatedly produced a proposal that already looks dangerously watered-down even before it reaches the Council table.
Charter of Fundamental rights
The Charter of Fundamental Rights confirms the full range of rights that are at the heart of the EUÕs Area of Freedom, Security and Justice. The legislative changes set in train in Tampere reflect one side of the coin. On the other side is the issue of actual observance of fundamental rights in the EU, as catalogued in the Charter.
Amnesty International has been increasingly critical of the marked absence of any commitment on the part of the Council to take human rights abuse within the EU seriously and accept EU-level accountability. There has been a cautious first acknowledgement from the Commission that its role of guardian of the treaties should also apply in this area but only the European Parliament has been an active advocate on this issue.
Amnesty InternationalÕs assessment is that in many respects, the EU has created an area that has diminished the legitimate rights of refugees, that is less secure than it should be because of the lack of human rights safeguards hampering the fight against crime, and that is free for many, but certainly not for all.
2. Assessment of the Common European Asylum System
The first phase of harmonisation ending in May 2004 has been characterised by a lack of ambition and political will on the part of EU member states. Despite legal and political commitments to adjust their national systems to common minimum standards, EU member states have shown limited political willingness to agree on compromise proposals which would have required them to adapt their national systems. This situation has been further exacerbated by the requirement of unanimity voting in the Council.
As a result, the CEAS has been held hostage to domestic agendas and most EU instruments have little EU added value, referring to national legislation on some of the most critical issues. The directive on asylum procedures, approved in April 2004, is a striking example of the influence of national agendas on the harmonisation process. After years of arduous negotiations, this directive has become a mere catalogue of national practice, allowing member states to retain national legislation which includes significant departures from accepted international refugee and human rights law.
The lack of adequate procedural safeguards is all the more worrying given that it may nullify the positive elements included in other instruments such as the qualification directive. At the time of its adoption, Amnesty International welcomed the fact that the qualification directive included a proper interpretation of the Geneva Convention regarding non-state agents of persecution. The directive also goes beyond international law standards by creating an obligation for member states to grant subsidiary protection to persons who do not qualify for refugee protection under the Geneva Convention but who are nonetheless in need of international protection.
However, these positive elements may have very little impact in practice given the remaining possibilities for member states to develop fast track procedures and to bar access to adequate refugee status determination procedures.
Protracted negotiations have also created a palpable fatigue and have severely eroded member statesÕ political commitment towards the harmonisation process. Recent months have been characterised by a renewed interest in intergovernmental cooperation on the part of the most influential member states, increasing the difficulty of achieving ambitious results at EU level. Amnesty International is concerned that member states may depart from their initial commitments under the Amsterdam Treaty, given that the intergovernmental method has been characterised by a lack of transparency and an overall restrictive approach.
One striking characteristic of the harmonisation process has been the lack of solidarity amongst European member states as seen during the negotiations on the regulation to determine which member state is responsible for dealing with an asylum application (Dublin II Regulation, adopted in February 2003). Given the predominant responsibility of member states located at the external borders of the EU, this regulation is likely to create a very heavy burden on the new EU member states.
In this context, the lack of proper substantive harmonisation under the qualification and the asylum procedures directive is of particular concern. Indeed, a person seeking asylum in a member state may be compelled to have his or her application examined in a country whose procedures lack certain essential safeguards or where an overly restrictive interpretation of the refugee definition will result in the rejection of his or her asylum claim. Current protection gaps that do exist could be further exacerbated with the increased number of asylum seekers arriving in the new member states.
Burden shifting
It must be underlined that the Dublin II regulation is
not sufficient to ensure effective access for all asylum seekers to the asylum
procedure, since asylum seekers deemed to come from a Ôsafe third countryÕ may be denied access to an examination of
their claims, which could then result in refoulement. Furthermore, this
responsibility-sharing mechanism may now be extended to non-EU Òneighbouring
safe third countriesÓ on the assumption that the level of protection available
in countries neighbouring the European Union is comparable, if not equivalent,
to standards in force in member states.
While a comparable level of protection may be available in neighbouring countries that are already taking part in Schengen and/or EFTA agreements, the idea of further extending the Dublin II mechanism is seriously questionable given the shortcomings of the asylum system in some neighbouring countries, including Romania and Bulgaria. Given that these Òneighbouring safe third countriesÓ have no obligation to actually process the asylum claim, the implementation of such a concept may lead to refugees-in-orbit situations, and chain-refoulement, which are clearly in breach of the jurisprudence of the European Court of Human rights.
In tandem with the declining standards within EU member states and the lack of positive harmonisation, there is also the trend for the UnionÕs Justice and Home Affairs policies to be ÒexportedÓ to third countries. This policy development has a significant legal background and is being developed through a variety of different frameworks, such as the new neighbourhood policy.
Compliance both in relation to stopping "illegal
immigration" and with the EU's external JHA policies, may be a stipulation
for any deepening of trade agreements or even as a prerequisite to any form of relations with the EU. States
bordering the EU are being increasingly positioned by the EU as buffer states
between the EU and countries of origin.
Within that context, Amnesty International notes with concern the move to develop partnerships on "illegal immigration" measures with countries that have a poor human rights record, for example, the recent initiatives to enhance technical cooperation with countries such as Libya and Tunisia.
These initiatives raise serious questions in the light of detailed evidence of serious and consistent human rights violations in these countries. Despite political commitments to oppose serious human rights abuse, EU governments seem to suffer from collective amnesia when migration issues are at stake. The result being that they are ready to open negotiations even while there is no collective framework to initiate a proper political dialogue.
While the EU has developed financial incentives and technical assistance for countries willing to implement their readmission commitments, there appear to be no commensurate efforts to enhance the political dialogue on good governance or to tackle the root causes of immigration Ð including serious human rights abuses Ð more effectively.
Despite interesting proposals made by the European Commission, the policy of engagement of EU member states with countries of origin and transit has so far produced little more than an extension of their restrictive asylum and immigration policies, rather than pursuing political, development or economic cooperation from a human rights perspective to combat the causes of people fleeing their countries.
3. Assessment of judicial cooperation
The European Arrest Warrant, which came into effect on 1 January, 2004 represents a huge leap forward in the development of a European judicial space. However, it is now time to provide back-up measures that will ensure that this judicial space will indeed fulfil its potential to be an area of freedom, security and justice.
If the EU is to move forward with its area of freedom, security and justice with equal emphasis on those three elements, it must take seriously the protection of individual rights in practice. This involves putting concrete proposals on the table to improve the protection of suspects, defendants and victims rights and making financial commitments that allow for standards of access to legal advice, translation and interpreting to be improved in real terms as well as providing adequate protection for victims of crime and their families where necessary.
Unfortunately, this is so far not the case.
The Tampere
Council Conclusions in 1999 endorsed the principle of mutual recognition of
judicial decisions and judgements by all EU member states, as Ôthe cornerstone
of judicial cooperationÕ stating that Ôenhanced mutual recognition of judicial
decisions and judgments and the necessary approximation of legislation would
facilitate cooperation between authorities and the judicial protection of
individual rights.Õ
The
CouncilÕs 2001 Programme of Measures to Implement the Principle of Mutual Recognition
of Decisions in Criminal Matters listed 24 specific measures based on mutual
recognition, including the European Arrest Warrant. This Programme stated that Ôthe extent of mutual recognition
is very much dependent on a number of parameters which determine its
effectivenessÕ, including Ômechanisms for safeguarding the rights of [É]
suspectsÕ (parameter 3) and Ôthe definition of common minimum standards
necessary to facilitate the application of the principle of mutual recognitionÕ
(parameter 4).
Finally,
the Extraordinary European Council on 21 September 2001agreed in principle with
the development of the European Arrest Warrant as part of an EU response to the
events of 11 September 2001 stating clearly that ÔIn parallel, fundamental
rights and freedoms with be guaranteedÕ.
Judicial protection of suspects and defendants rights
The
European CommissionÕs proposal for a Council Framework Decision on certain
procedural rights in criminal proceedings throughout the European Union (April
2004) is extremely disappointing.
It covers a limited number of areas and seems to have adopted the
approach of finding the lowest common denominator rather than establishing
standards that reflect best practice.
The
language of the proposal is vague and it is unclear what added value it would
give to member statesÕ current commitments under the European Convention on
Human Rights (ECHR). In terms of
access to legal advice the proposal does not even stretch to the right to have
a lawyer present during questioning which is a key element in preventing
ill-treatment and coercion during police questioning and the protection of fair
trial rights.
The Tampere Council Conclusions state that Ôminimum standards should be drawn up on the protection of the victims of crimeÉ.Õ. The Framework Decision on the standing of victims in criminal proceedings (March 2001) makes a reference to the protection of victims and their families but does not elaborate as to what the standards of such protection would mean in practice.
Implementation of this Framework Decision has been patchy at best and it is hard to see how it has improved the protection of victims of crime in practice, particularly in relation to crime such as violence against women in the family and trafficking in human beings. The only legislation that has been agreed in relation to victims of trafficking makes their rights dependent on cooperation with the authorities and is, therefore, in fact aimed at witness protection and not at the wider issues involved in protecting victims and preventing a situation of re-victimisation.
The
European Arrest wWarrant, agreed in record time following the events of 11
September 2001, was due to be implemented across the EU by 1 January 2004. So far it has only been implemented in
17 of the 25 member states. In a
number of member states, such as Germany and Italy, implementation has been
mired in difficulties in national parliaments due to lack of trust in the
standards of criminal justice in other member states and the lack of common
standards in the application of basic procedural safeguards in criminal
proceedings.
The absence
of such common standards and the lack of mutual trust upon which to base the
principle of mutual recognition is likely to lead to severe difficulties in the
application of the European arrest warrant in practice.
Amnesty
International supports the principle of the European arrest warrant as a means
of combating transnational and organised crime, such as trafficking in human
beings and ÒterrorismÓ which constitute, in themselves, a grave threat to human
rights. However, the effective
application of the European Arrest Warrant requires the European Union to establish
and maintain high standards across the EU in order to breed genuine mutual
trust between independent judicial authorities.
All member
states of the European Union are bound by their international human rights
obligations, in particular the ECHR which would oblige a member state to refuse
to surrender an individual where surrender would result in a serious breach of
that personÕs human rights.
A number of
recent extradition cases between EU member states have demonstrated that judges
are prepared to find that surrender to an EU member state might result in a
breach of that person's fundamental rights and, on that basis, must be
refused. If the procedural
standards in member states fall below ECHR accepted standards in a given case
this will undermine the development of judicial cooperation launched under
Tampere.
Asylum and immigration
While the overall assessment of the Tampere agenda on asylum and immigration is a negative one, the decisive role of the European Court of Justice allows hope for an improvement in these minimum standards. There are also interesting developments in recent discussions amongst member states and the European Commission regarding the need to explore ways of better managing the entry of persons in need of international protection into the EU, through the development of protected entry procedures, resettlement schemes and protection in the region.
Non-governmental organisations such as Amnesty International, normally regard these tools as valuable instruments and would be ready to support such an initiative provided that they are never used as a substitute - either legally or politically - for the legally binding rights that are attached to a refugee or asylum seeker who has directly engaged the protection obligations of a state party to the Refugee Convention.
A purely defensive and control-driven approach to forced displacements has proved to be inefficient both at internal and external level. Future developments will depend on member statesÕ political willingness to break the current deadlock. Amnesty International calls on the the European Union to seize the opportunity of the debate on the EU constitution and the second phase of harmonisation to further develop the integration process in the field of Justice and Home Affairs and to build a common asylum policy that is ambitious, coherent and protection-centred.
Judicial cooperation
The Tampere agenda undoubtedly led to some groundbreaking developments such as the European arrest warrant but now it must be ensured that implementation of the instruments is not undermined by rocky foundations in terms of rights protection in member states.
The next step towards creating an area of freedom, security and justice will require concrete improvements in the protection of individual rights across the European Union if mutual recognition is to rest on genuine mutual trust between countries rather than the blind faith of governments.
This will need adequate funding to make key rights such as access to legal advice, a reality. This will only be possible if the EU is prepared to take a hard look at the reality of human rights protection on the ground rather than the declarations in the treaties and to act decisively to remedy the problems that it finds.
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