RICERCA ITALIANA     

Research program

Individual guarantees and judicial cooperation in criminal matters in the European Union

University Co-ordinator

Università degli Studi di TORINO - SCIENZE GIURIDICHE - TORINO(TO)

Research Unit Leader

Edoardo GREPPI

Description

The local unit shall perform its research activity by inquiring the two areas that appear to assure a complete analysis of the topic.
Substantive law profiles – As far as the substantive law aspects are concerned, the unit shall in the first place perform a comparative analysis of the EU law acts, starting from Common Positions 2001/930/CFSP and 2001/931/CFSP, as well as of regulation n. 2580/2001 "on specific restrictive measures directed against certain persons and entities with a view to combating terrorism" as amended, that enacts them. A particular care shall be devoted to the examination of the abstract consistency of such instruments with the principles in international law instruments (eg. ECHR) as well as in EU instruments (i.e art. 6 TEU) and the Charter Of Fundamental Rights of the Union, as introduced (ad made mandatory) in the "Treaty establishing a Constitution for Europe", signed in Rome in 2004; this in order to evaluate the compatibility of single anti-terrorism measures with the instruments of defence of HRs.
As an example, we might report that a first critical point has already emerged among the Authors. Decision 2001/931/CFSP "shall order the freezing of the funds and other financial assets or economic resources of (terrorist) persons, groups and entities"; the restrictive orders may be addressed to such persons or "associated persons" listed in the Annex. Such Annex is attached to the said Common Position, updated half-yearly, and is drafted upon indications from the Committee for sanctions against Al-Qaeda and the Talibans. A person is enlisted in presence of "serious and credible evidence or clues" that have lead to a decision by a competent authority in respect of the persons, groups and entities concerned, irrespective of whether it concerns the (a) instigation of investigations or (b) prosecution for a terrorist act, an attempt to perpetrate, participate in or facilitate such an act based on serious and credible evidence or clues, (c) or condemnation for such deeds. As the enlistment implies measures that –although of patrimonial nature- have in themselves a negative impact on personal dignity end even personal freedom; this happens without any trial be occurred, with a potential harm to ECHR-assessed rights, such as the right to be presumed innocent, and to undergo a fair trial; moreover, the same situation may be examined in the light of the interferences with the right to respect for personal property as assessed in art. 1, Protocol 1 ECHR.
The clear need for a tempering between the protection of society and individual guarantees granted to the EU States subjects, has already emerged in Courts' decisions too. The Aden et al. and Sison cases (brought before the EC CFI) and the SEGI (et al.) and GESTORAS PRO AMNISTIA (et al.) – adjudicated by the European Court of HR – represent important starting points for considering the critical profiles, but such consideration shall proceed beyond the claimants arguments.
Such exam of the substantive law profiles shall be than supported by the analysis of instruments that seem to testify the need to put the rights and freedoms in the middle of the approach to terrorism.
In this sense, particularly significant are: the joint statement by the Special Rapporteurs/Representatives, Experts and Chairpersons of the Working Groups of the special procedures of the United Nations Commission on Human Rights (30th june 2003), the recommendations of the Inter-American Commission on Human Rights in matter of fight to terrorism, humanitarian law and human rights, Resolution 1271 and 1550 approved by the Parliamentary Assembly of the Council of Europe on 24th Januaru 2002, the Report presented to the same Assembly by the Committee on Legal Affairs and Human Rights on "Combating terrorism and respect for human rights" (doc. 9331, 22 January 2002) and the "Guidelines of the Committee of Ministries on human rights and the fight against terrorism" (annex to committee decision n. 2002/804).
Procedural profiles – En equal importance shall be given to the analysis of the impact of such new instruments on the mechanisms of jurisdiction. In fact, a real risk exists that collective protection tools, based on law-related distinctive elements, but created outside the normal judicial control circuit, might degenerate.
In the example above, the introduction, at statutory level, of provisional measures imposed on the basis of evidence that did not undergo a judicial review, and liked to an upstream evaluation of the reliability of such evidence, might produce a paradoxical situation, in which a judge who, downstream, is called to the examination of such evidence, has not the powers to order cancellation of the hence-suspect from the list.
In the above-mentioned SEGI and GESTORASD cases, the problem has been already displayed as a matter of reparation of a (not recoverable) damage to the rights to the presumption of innocence, to the freedom of speech, to a fair trial.
Moreover, it seems that the homeostatic mechanisms that are present in the ECHR, and in particular art. 15, relating to extraordinary circumstances, are not totally adequate to the contingency. In fact, according to it, the principle "nulla poena sine lege" should be mandatory under any circumstance. However, Courts have faced –and will have to face in the future- the challenge of conciliating opposite needs without any relying on automatic balances, that cannot be found in consolidated precedents.
The unit shall then concentrate on the role of the European Court of HR, of the ECJ and of the CFI; as far as the Strasbourg Court is concerned, it will be useful to examine –although incidentally- of possible developments in case-law concerning the relationship between the ECHR and EU law, reporting particularly the attitude of the Court on this issue.
The study shall, eventually, consider the novelties introduced by the Treaty establishing a Constitution for Europe, that states that a physical or legal person affected by a restrictive measure –although adopted by the Council acting under CFSP- shall enjoy a (limited) right to a judicial review.
The study aims, finally, to contribute to the definition of instruments apt to prevent the conflict between anti-terrorism measures and the system of fundamental rights that form the pillars of the European common space of law.