Events of 2008

The process of improving human rights protections in European Union law stalled in June 2008, a consequence of the Lisbon Treaty being rejected by referendum in Ireland. The treaty would make the EU party to the European Convention on Human Rights, and the EU Charter on Fundamental Rights and Freedoms binding in EU law. At present, EU institutions are not explicitly bound by the convention, unlike individual EU member states.

The European Union and leading member states continue to pursue counterterrorism measures that violate human rights. National security removals despite the risk of ill-treatment on return, inadequate safeguards in detention, and curbs on freedom of expression and the right to privacy, are among the key concerns.

Migration and asylum policies remain focused on keeping irregular migrants, including children, out of the EU and removing those who are present rather than ensuring their rights are protected. Racist and xenophobic incidents and policies, particularly affecting the Roma and Sinti, Jewish, and Muslim populations, as well as migrants, were an issue in a number of EU states.

Counterterrorism Measures and Human Rights

The EU Council approved in April an amendment to the EU Framework Decision on Combating Terrorism, introducing new offenses of provocation (intended to give effect to provisions in the Council of Europe Convention on the Prevention of Terrorism), and terrorist recruitment and training, including when committed over the internet. The provocation offense gives rise to concern about criminalization of speech with little connection to terrorism. In September the European Parliament recommended narrowing the amendment, so that only speech intended to directly incite specific terrorism offenses is criminalized.

The lack of safeguards in the EU's implementation of United Nations financial measures against terrorism was highlighted in September, when the European Court of Justice ruled in the case of Kadi that the inability of non-EU nationals whose assets are frozen to effectively challenge the decision violates the right to a fair hearing. This reversed the finding of the EU's Court of First Instance that the binding nature of the measures imposed by the UN Security Council, outweighed human rights obligations.

European Union member states continued to seek the expulsion of terrorism suspects, including through the use of diplomatic assurances, to a risk of torture or other prohibited ill-treatment on return, despite opposition from the courts, human rights bodies, and NGOs. In February 2008 the European Court of Human Rights unanimously reaffirmed the absolute prohibition on return to torture or other prohibited ill-treatment in its judgment in Saadi v. Italy, which concerned Italy's attempted expulsion of a terrorism suspect to Tunisia, with the use of assurances. It rejected a submission by the United Kingdom government to allow risk of ill-treatment on return to be balanced against a threat to national security. It also rejected the notion that diplomatic assurances necessarily constitute a guarantee against torture.

Earlier allegations in Parliamentary Assembly of the Council of Europe (PACE) and European Parliament reports of CIA renditions programs having used secret detention centers in Poland and Romania were finally being addressed in Poland, but Romania has taken no significant steps. In August, at the request of Polish Prime Minister Donald Tusk, the public prosecutor initiated an investigation into the allegations. Critics are concerned that the scope and powers of the investigation will not be sufficient to address serious allegations of torture and other human rights abuses.

Common EU Asylum and Migration Policy

A "European Pact on Immigration," adopted by the European Council in October, was the centerpiece of the migration focus under France's EU Presidency in the latter half of 2008. The non-binding pact foresees stricter controls on family reunification for migrants and calls on EU states to pursue expulsion, paying migrants to return home, and readmission agreements with countries of origin, to remove irregular migrants. The pact raises concerns about its potential impact on the right to family life and the prohibition on return to a risk of persecution or ill-treatment.

The continued focus of EU migration policy on border enforcement rather than human rights protection was reflected in the €30 million increase to the 2008 budget for the EU border control agency, Frontex. At this writing, the Frontex operation "Hera" during 2008 has "deterred" or "diverted" back to West Africa 4,373 undocumented migrants heading to the Canary Islands.

In June the European Parliament adopted the controversial Council Directive on common standards and procedures in Member States for returning illegally staying third-country nationals, known as the Returns Directive. The measure, which will come into effect in 2010, permits the detention of undocumented migrants and failed asylum seekers, including unaccompanied children, for up to 18 months and allows for a five-year ban on reentry. In October 2008 the UN High Commissioner for Human Rights criticized the detention periods in the directive as excessive and an erosion of the right to liberty for migrants.

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