28 March 2012
Support our work: become a Friend of Statewatch from as little as £1/€1 per month.
Secret EU-US
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 Council’s 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).
Secret treaty-making
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
threat.
See: Statewatch analysis
Documentation
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
6. Full report in pdf format: Report,
analysis and document
7. Press coverage: Guardian
8. Related story: Germany says it cannot hand over evidence
for a case whether death penalty applies: BBC
© Statewatch ISSN 1756-851X.Material
may be used providing the source is acknowledged. Statewatch
does not have a corporate view, nor does it seek to create one,
the views expressed are those of the author. Statewatch is not
responsible for the content of external websites and inclusion
of a link does not constitute an endorsement.
Spotted an error? If you've spotted a problem with this page, just click once to let us know.
Statewatch does not have a corporate view, nor does it seek to create one, the views expressed are those of the author. Statewatch is not responsible for the content of external websites and inclusion of a link does not constitute an endorsement. Registered UK charity number: 1154784. Registered UK company number: 08480724. Registered company name: The Libertarian Research & Education Trust. Registered office: MayDay Rooms, 88 Fleet Street, London EC4Y 1DH. © Statewatch ISSN 1756-851X. Personal usage as private individuals "fair dealing" is allowed. We also welcome links to material on our site. Usage by those working for organisations is allowed only if the organisation holds an appropriate licence from the relevant reprographic rights organisation (eg: Copyright Licensing Agency in the UK) with such usage being subject to the terms and conditions of that licence and to local copyright law.