EuroMoS

The national units

1. Where to found and how to structure?

Eventually, a national unit of Euromos will be founded in every EU-country. The aim will be to place the ‘roof-organisations’ in the capital of the country or in a legal centre of the country. The composition of the board will also have to be inter-disciplinary. The permanent staff can be considerably smaller, but should still be permanently accessible and have at its disposal a competent ‘information mediation’ ability.

Particularly in the larger countries such as Germany, Italy, France, Spain, Portugal and the United Kingdom, it is to be recommended that a national network of co-operating units be set up, in order to amass information from the whole country and make contacts in the entire country.

2. Where to start?

It is impossible to found national units simultaneously in the current and future EU-countries. That must happen gradually. Probing existing, more incidental co-operation relationships and convincing them to join the ‘Europe-wide’ monitoring system in the sketched structured and systematic manner seems evident. After that it would seem to be wise to force the founding in the countries that do have serious and very serious problems with human right’s violations, as far as there are no existing relationships of co-operation with them. This not only to help improve the human right’s situations in those countries, but also as a matter of self-interest. After all, the national authorities who decide in cross-border criminal cases have a need for quick and concrete information, before they make decisions about their citizens as they remain responsible, also in the new Europe, with the postulated space for freedom, security and justice, even if the criminal case is transferred to another EU-member state, where the same basic rights apply.

3. Why national units?

This view is convincingly argued in my opinion in the contribution of Smeulers/De Vries (The European arrest warrant: justified trust?). This is not only important for the order of the countries in which national reporting units for human right’s violations must be founded, but also, and mainly, for the necessity of a functioning monitoring system and for demonstrating a direct interest of all member states to have at their disposal a national reporting unit that can provide information about the current human rights situation in the various EU-countries via a ‘Europe-wide’ network. No time remains for own investigation in the sixty days available for the extradition decision. It would therefore be useful if the potential founders of the national units were to have available the argumentation used by Smeulers and De Vries in order to convince the presently unwilling national financiers that they are investing in a useful and necessary project.

By which arguments is the Europe-wide monitoring system supported?

The area of freedom, security and justice that is propagated for the European Union goes hand in hand with a high degree of trust in the (quality of the) criminal justice systems of the other EU-countries. Drastic decisions are based on this assumed trust, such as the mutual recognition of criminal legal decisions, the European arrest warrant and the founding of Eurojust, although it is not actually determined nor empirically argued that the foundation is good. Through the case-law of the Strasbourg court, accounts in the media, as well as the more than decennial experience of Fair Trial Abroad, we all are aware that human rights violations occur in the criminal justice systems in the current and the future EU-member states, but a reliable picture of the concrete human rights situations in the various member states cannot be distilled from these sources. The attempt of A. Smeulers and J. de Vries (The European arrest warrant: justified trust? In: NJCM-bulletin 2003, p. 428) to sketch a more concrete picture using diverse recent reports from GO’s and NGO’s seems to me to be a step in the right direction. A reliable picture of the current human rights situation in criminal cases in de member states of the European Union can be attained with a ‘Europe-wide’ monitoring system, founded and run by non-governmental organisations. It can already be deduced from the findings of Smeulers and De Vries and other sources that, with regards to a large number of the current and future EU-member states, valid and documented reasons are known in order to assume that a person claimed by such countries runs a real risk of being exposed to a violation in the event that the claim is granted. In six of the current as well as in six of the future member states, serious and even large-scale problems with regards to the enforcement of human rights have recently occurred, so that – despite the applicability of the same fundamental rights there – the assumed great trust in the compliance with the principles agreed upon in art. 6 of the Treaty of the Union is, certainly not with regards to these twelve countries, justified.

There are diverse sources from which it can be deduced that there are boundaries to the mutual recognition of criminal legal decisions such as an arrest warrant to which the solicited state must pay attention.

• Grounds for refusal can be found in treaty law, such as in art. 3 of the Treaty against torture: ‘No state party shall expel, return (‘refouler’) or extradite a person to another state when there are substantial grounds for believing that he would be in danger of being subjected to torture’. The UN model treaty on extradition  contains also an explicit exception  with regards to human rights.
• Smeulers and De Vries further refer to Strasbourg case-law wherein it was determined that the state who extradites a person, carries, to a certain degree, the responsibility for the fate that awaits the claimed person in the state that made the request after the extradition (ECHR, Soering vs. the United Kingdom, 7^th of July 1989, NJ 1990, 158, annotated by Alkema). Furthermore, in accordance with the case-law of the ECHR, the fact that the State that makes the request is also a member of the ETHM and that a great trust exists between the states does not take away from the responsibility of the solicited or extraditing state (ECHR, T.J. vs. The United Kingdom, 7^th of March 2000, NJB 2000, p. 981-982). It is important however, that there are more concrete indications of an eventual flagrant violation of the most fundamental human rights. Not every potential violation of any of the rights in the ETHR blocks the granting of a request (Smeulers/De Vries, p. 430). As the solicited State hardly has the time to conduct an investigation of the human rights situation in the requesting State before it must decide, a functioning monitoring system about the human rights situation, in which data can be recorded and be quickly and reliably recovered, is of great importance.
• In his oration of the 9^th of March 2001, (A true European legal area), Bert Swart names other boundaries to which the mutual recognition must, for the time being, remain restricted. It seems to him to be undesirable that a member state that is solicited for legal assistance by another member state, in executing that request, be required to interfere with individual rights in a manner in which that state could not do so in its own criminal cases: among other things, not imposing penalties or measures that do not exist in that state’s own country or exceed the maximum that applies there and not enforcing any coercive measures that would not be available in a criminal case of that state.

Finally, with regards to the cancellation of the requisite of double criminal liability, he argues for exceptions for mutual differences in criminal liability that are directly related to other views regarding the right to self-determination of the individual, the freedom of speech of the freedom of assembly.

Finally, there are fundamental theoretical objections to be made against the absolute mutual recognition of legal decisions, in as far as they are based on an assumed mutual trust between the governments in force in Europe. The principles on which, according to art. 6 of the TEU, the European Union is based, namely, the principles of liberty, democracy, respect for human rights and fundamental freedoms and the rule of law, are concepts that have very deep roots in de European and American history of thought and which therefore cannot be freely interpreted, but must be understood from a historic context. They all arose from distrust of the execution of power by the government against the citizen. The connotation of each is to restrict the government and to limit the use of power and to make that use foreseeable. Trust in the compliance with these limitations that governments express themselves, comes across as a promise of good intentions. With that, the necessary distrust of the expansion of competencies is undermined. This mutual trust between the governments does not at all fit in with the concept of the rule of law, democracy and human rights.

Furthermore, it is to be pointed out, that the three values that should be realised in the European Union stand in a relationship of tension with regards to each other that politicians do not seem to realise. Set against the repressive agenda (Brants) and the dominant thinking in terms of security (Swart) that recently rules in the European Union, Swart reminds us of a famous quote from Popper: ‘only freedom can make security safe’. That is a wisdom that already was formulated by Benjamin Franklin and which has as of yet, despite the threat of organised crime and terrorism, still not lost anything in validity: ‘they that can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety’. Paradoxically, the conclusion must then be: for the compliance with human rights and the other postulated principles, control is better than trust.