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EU backsliding on Human Rights? Challenge to Dutch presidency from Amnesty International

Article by Dick Leonard

September 15, 2006

The European Office of Amnesty International has already made its own assessment. “Is the EU now more free, secure and just as a result of the Tampere Agenda?” it asked in a report published last month. It considered the two dominant elements of the Tampere agenda – asylum and immigration, and judicial co-operation in criminal matters – and its verdict, from a human rights point of view, is “generally negative”.

On asylum, it says that “The Tampere commitment to ‘full and inclusive application of the Geneva Convention’ has evaporated. The determination to provide security is neither matched by effective co-operation nor balanced with essential safeguards … 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”.

Much of the fault for the EU’s failure to translate its good intentions into effective action is attributed to the impact of September 11. Counter-terrorism has replaced human rights as the driving force for legislative action. The quick agreement, at an emergency summit on 21 September 2001, to speed up a European Arrest Warrant, is described as “a huge leap forward in the development of a European judicial space”. So far, however, its effect has been disappointing, not least because of the failure to buttress it, as originally promised, with adequate human rights safeguards.

The warrant was due to come into effect on 1 January 2004, but in a number of countries, Amnesty reports, “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”. Italy has still not obtained parliamentary authority to go ahead.

Potentially, the arrest warrant could be an important weapon in the fight against international and organised crime, the trafficking in human beings and terrorism, which constitute, in themselves, a grave threat to human rights. “However”, Amnesty concludes, “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.”

I asked Dick Oosting, the Dutch head of Amnesty’s EU office, where the blame lay for the EU’s failure to live up to the hopes raised at Tampere. He was quick to absolve the European Parliament, and – largely – the Commission, which leaves the Council of Ministers and the member states (or some of them) as the main suspects.

It is the EP which has taken the lead in monitoring human rights, getting the Commission to establish a network of national experts to report on the situation in each member state. Organised by a Belgian human rights expert, Olivier de Schoutter, it has formed the basis for annual reports which have drawn attention to human rights breaches in member states.

Oosting has repeatedly attempted to get the EU to act on the basis of major reports Amnesty has itself issued over the past years, including on Spain, Greece and Portugal, but without success. “These are the letters I never get a reply to”, he told me. He also accuses EU governments of “double standards” in their response to reports presented at Geneva to the UN High Commission for Human Rights. One of these by Theo Van Boven, the UN’s Special Rapporteur on Torture, strongly criticised Spain for its conduct in the Basque country.

The Spanish government reacted angrily, and even attacked Van Boven’s integrity. Delegates from Norway, Canada and New Zealand rallied to Van Boven’s defence, but not a word was spoken by representatives of any other EU country.

The Commission, prompted by the Justice and Home Affairs Commissioner, António Vitorino, who unfortunately will not be eligible for reappointment due to the nomination of his compatriot, José Manuel Durão Barroso, as the incoming President, has backed the initiatives of the Parliament, and last October adopted a communication with proposals on how the Council of Ministers should apply the hitherto dormant Article 7 of the Treaty on European Union.

This Article, subsequently strengthened by the Nice Treaty, empowers the Council to act in the event of either a “clear risk of a serious breach by a member state” of its human rights obligations, or of “a serious and persistent breach” which has already occurred.

Nine months later the Council of Ministers has still not got round to considering this communication. A check-list of actions which the Dutch presidency should take, published by Amnesty on 1 July and entitled Closing the gap between rhetoric and practice, gives a high priority to bringing it forward for decision by the Council.

Equally urgent, in Amnesty’s view, is to follow up the surprise decision taken by the European Council last December to establish an EU human rights agency, based in Vienna. The presidency should work with the Commission to prepare a firm proposal defining the scope and powers of the new body, which Amnesty believes, should be firmly focused on monitoring human rights within the EU rather than attempting a global role.

The Amnesty document also draws attention to what it describes as “the systematic discrimination and social exclusion of Roma”, and calls for the adoption of an EU strategy to counter it. It is important, says Oosting, that the new member states, whose human rights record was subject to scrutiny during the accession negotiations, should get the message that the EU is equally concerned to ensure the highest standards from its existing members.

Throughout the history of the EU, Dutch governments have been in the forefront of those fighting to defend and extend human rights and to combat racism and xenophobia. In the recent past, they have faced a certain backlash, manifested by the electoral success of the Pim Fortuyn movement, and have undoubtedly been tempted to trim.

Now is the time for Jan Peter Balkenende’s government to demonstrate to its EU partners that its determination has not faltered and that the Union should prepare to live up to the high ideals enshrined in its past declarations, and in its new constitution.

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