Stockholm Programme Research Articles

THE EU ACCESSION TO THE GENEVA CONVENTION RELATING TO THE STATUS OF REFUGEES: LEGAL FEASIBILITY AND ADDED VALUE

The Stockholm Programme establishing the political priorities of the area of freedom, security and justice for the period 2010-2014 stated that the EU should seek accession to the 1951 Geneva Convention on the status of refugees and its 1967 Protocol. In spite of the political difficulties that the materialization of this recommendation, repeated in 2011, would encounter, this contribution analyzes the legal implications of a hypothetical accession of the Union to the cornerstone of the international regime on refugee protection, which simultaneously constitute the core of the EU asylum acquis by the direct reference found in art. 78.1 TFEU and art. 18 of the EU Charter of Fundamental Rights. For that purpose, this research firstly concentrates on analyzing the legal feasibility of the accession, both under EU law ⎯focusing on the competence question, looking at its existence and also its nature with regard to Member States’powers⎯, and under international law ⎯examining the terms of the Geneva Convention to identify the need for its revision or adjustment⎯. Secondly, the added value of the accession is assessed, particularly regarding the current and future role and place the Geneva Convention enjoys within the EU legal order.

Criminal Appeals in Europe: The Perspective of the Defence

This paper is focused on the appeal system in criminal justice, in a comparative perspective, considered from the standpoint of the defendant. Most part of the directives adopted after the 2009 Stockholm Programme in the AFSJ area involve issues related to the appeal stage. Appeal represents an instrument prevailingly conceived in favour of the defence. This prodefence inclination of the appeal bears some relevant risk for the effectivity of the system, under the viewpoint of law enforcement. Some restrictions to avoid destructive strategies by the defence can be accepted. However, legal instruments devoted to preserve the self-integrity of the proceedings must be used with extreme caution. The risk is that an excessive recourse to such provisions might lead the system to disregard procedural legality, and the values protected by procedural rules, in the name of an effective ascertainment of the substantial truth.

Razvoj određenih mera vezanih za pravično suđenje u Evropskoj uniji kao deo Stokholmskog programa

The principal of mutual recognition in criminal cases is present in EU criminal law since the Framework Decision on the European Evidence Warrant was accepted in 2008. Although the instrument failed to achieve its purpose, the goal of harmonizing cross-border criminal investigations still remains. For the European Investigation Order to succeed a minimum rules in guarantees of fair trials are needed. The European Union recognized this need and the Stockholm Programme was launched in 2009 aiming to realize that. Directives regarding certain suspect rights were accepted since then, including a directive on the right to information and the presumption of innocence. The minimum rules regarding these suspect rights can have a serious impact on national criminal justice systems and their implementation will result in a more harmonised criminal law. These documents were drafted in accordance with the ECHR and the relevant case law of the ECtHR which promises a more enhanced integration of the two major European systems of legislation.

Criminal Appeals in Europe: The Perspective of the Defence

This paper is focused on the appeal system in criminal justice, in a comparative perspective, considered from the standpoint of the defendant. Most part of the directives adopted after the 2009 Stockholm Programme in the afsj area involve issues related to the appeal stage. Appeal represents an instrument prevailingly conceived in favour of the defence. This pro-defence inclination of the appeal bears some relevant risk for the effectivity of the system, under the viewpoint of law enforcement. Some restrictions to avoid destructive strategies by the defence can be accepted. However, legal instruments devoted to preserve the self-integrity of the proceedings must be used with extreme caution. The risk is that an excessive recourse to such provisions might lead the system to disregard procedural legality, and the values protected by procedural rules, in the name of an effective ascertainment of the substantial truth.

Beyond Stockholm: in search of a strategy for the European Union's Area of Freedom, Security, and Justice

ABSTRACTThe development of the European Union's Area of Freedom, Security, and Justice (AFSJ) has been identified by the Lisbon Treaty (2009) as one of the key objectives of the European Union (EU). Recent events have also highlighted the saliency of several of the policy issues at the heart of the AFSJ. Amongst them, one can mention the terrorist attacks in 2015 in Paris and the ongoing refugee crisis in the Mediterranean region. At the same time, the end of the Stockholm programme, which provided the strategic framework for the development of the AFSJ between 2010 and 2014, has been followed by the adoption of new ‘strategic guidelines’, which can only be described as a short, vague, and general document. It is therefore paradoxical that, at a time when AFSJ matters – such as asylum, migration, borders, terrorism, policing, and judicial cooperation – have never been so salient, the EU finds itself, for the first time ever, devoid of any significant, over-arching strategy for the development of its AFSJ.

The development of the external dimension of the AFSJ – new challenges of the EU legal and policy framework

ABSTRACTThe Stockholm Programme sets new challenges for the Area of Freedom Security and Justice (AFSJ). The development of external relationships with European Neighbourhood Policy and the Euro-Mediterranean Economic Area countries will prove problematic. The treaty boundary lines between the Common Foreign and Security Policy and the AFSJ will need to be negotiated. In addition, the full range of EU provisions with regard to policing, investigation and prosecution, and fundamental and due process rights, all required to obtain safe convictions, which will need to be part of the EU external relations legal framework for the AFSJ. EU legal agreements for the AFSJ could be either directly with a particular third country, or via Europol. Europol counterparts could be the South-East European Law Enforcement Centre (SELEC) or the Central Asian Regional Information and Coordination Centre (CARICC). This paper will critically analyse the problems likely from an EU legal framework and policy perspective.

“The Principles of Patrimony Due Process of Law: The Punitive Confiscation and the Protection of Third Parties Misrelated to the Crime”

main motive for cross-border organised crime, including mafia-type criminal organisations, is financial gain. As a consequence, competent authorities should be given the means to trace, freeze, manage and confiscate the proceeds of such crime. However, the effective prevention of and fight against organised crime should be achieved by neutralising the proceeds of crime and should be extended, in certain cases, to any property derived from activities of a criminal nature. Organised criminal groups operate without borders and increasingly acquire assets in Member States other than those in which they are based. There is an increasing need for effective international cooperation on asset recovery and mutual legal assistance. Among the most effective means of combating organised crime is providing for severe legal consequences for committing such crime, as well as the effective detection and the confiscation of the instrumentalities and proceeds of crime. Although existing statistics are limited, the amounts recovered from proceeds of crime in the Unionseem insufficient compared to the estimated proceeds. Studies have shown that, although regulated by Unionand national law, confiscation procedures remain underused. The adoption of minimum rules will approximate the Member States' freezing and confiscation regimes, thus facilitating mutual trust and effective cross-border cooperation. The Stockholm Programme and the Justice and Home Affairs Council Conclusions on confiscation and asset recovery, adopted in June 2010, emphasise the importance of a more effective identification, confiscation and re-use of criminal assets. In this article, we will focus on the recent Directive of the EU Parliament and of the Council on freezing and confiscation of proceeds of crime in the EU (3 April 2014).

Looking back while going forward: 15 years of legal interpreting in the EU

Over the years the European Union has evolved from a predominantly political and socio-economic enterprise and become increasingly proactive in the area of justice, the so-called ‘Third Pillar’. The Maastricht Treaty (1993) introduced justice and home affairs as «matters of common interest» for the EU but it was the Amsterdam (1999) and Nice (2000) Treaties which really set out the ambition to shape the EU into «an area of freedom, security and justice». Following the Amsterdam Treaty (1999), the European Council laid down the priorities for Justice and Home Affairs in three subsequent five-year programmes (‘Tampere’, ‘The Hague’ and ‘Stockholm’). From the beginning the issue of access to and quality of interpreting (and translation) featured as one of the major fundamental rights and procedural safeguards to be ensured in criminal proceedings. The end of 2014 marks a turning point as the Stockholm Programme comes to an end. Therefore, it seems the time has come to take stock. This contribution surveys 15 years (1999-2014) of European and national legislation, of academic activity in training and research and of professionalization of the legal interpreting and translation community, charting important objectives that have been achieved.

Extracorporeal membrane oxygenation: a breakthrough for respiratory failure.

Extracorporeal membrane oxygenation (ECMO) is a method for providing long-term treatment of a patient in a modified heart-lung machine. Desaturated blood is drained from the patient, oxygenated and pumped back to a major vein or artery. ECMO supports heart and lung function and may be used in severe heart and/or lung failure when conventional intensive care fails. The Stockholm programme started in 1987 with treatment of neonates. In 1995, the first adult patient was accepted onto the programme. Interhospital transportation during ECMO was started in 1996, which enabled retrieval of extremely unstable patients during ECMO. Today, the programme has an annual volume of about 80 patients. It has been characterized by, amongst other things, minimal patient sedation. By 31 December 2014, over 900 patients had been treated, the vast majority for respiratory failure, and over 650 patients had been transported during ECMO. The median ECMO duration was 5.3, 5.7 and 7.1 days for neonatal, paediatric and adult patients, respectively. The survival to hospital discharge rate for respiratory ECMO was 81%, 70% and 63% in the different age groups, respectively, which is significantly higher than the overall international experience as reported to the Extracorporeal Life Support Organization (ELSO) Registry (74%, 57% and 57%, respectively). The survival rate was significantly higher in the Stockholm programme compared to ELSO for meconium aspiration syndrome, congenital diaphragmatic hernia in neonates and pneumocystis pneumonia in paediatric patients.

Aspectos de armonización asimétrica para la entrada y residencia de familiares de nacionales de terceros estados en la Unión Europea

<p>Tras un decenio de la aprobación de la Directiva 2003/86/CE, tanto el Programa de Estocolmo como el Pacto Europeo sobre Inmigración y Asilo indican que la reagrupación familiar es una de las principales cuestiones objeto de desarrollo de la política comunitaria de inmigración. Sin embargo, la aplicación práctica de la Directiva da cuenta de la existencia de problemas y deficiencias en el margen de maniobra de los Estados miembros a la hora de implementar algunas de sus cláusulas opcionales. A tal propósito, este trabajo trata de plantear una revisión de las implicaciones jurídico-políticas que debe afrontar la inmigración familiar en el control del <em>fraude legis,</em> la inclusión de los miembros de la familia y la exigencia de posibles medidas de integración. Todos ellos aspectos que ponen de relieve no sólo las posibles deficiencias de la técnica legislativa del proceso de armonización europea sino también advierten de su incompatibilidad con el estándar internacional de derechos humanos.</p><p><strong>Recibido</strong>: 26.05.2015<br /><strong>Aceptado</strong>: 18.06.2015</p>

Pakistaníes en Madrid: una inmigración inadvertida

Pakistani immigration in Madrid is not recent, as Chinese immigration, but it is largely unknown. They settled themselves in Madrid during the economic boom of the nineties. Its main feature is its high degree of integration in Madrid and its metropolitan area. Under the guidelines of the EU and in particular through the Stockholm Programme, the integration policies for immigrants show the pattern for the creation of a space of freedom, justice and security in Europe, which ultimately is the goal sought by the Pakistanis when they try to establish themselves in our continent

Introduction: supranational governance in the Area of Freedom, Security and Justice after the Stockholm Programme

Following several months of uncertainty in the wake of the rejection of the treaty establishing a constitution for Europe, the Lisbon Treaty eventually entered into force in December 2009. Although...

All Roads Lead to Rome: The New AFSJ Package and the Trajectory to Europe 2020

When the Stockholm agenda was being negotiated in 2009, the negotiators faced the uncertainty that the Lisbon Treaty would never survive its initial failure of 2007 and thereby risked the same fate as the doomed Constitutional Treaty of 2005. Such a scenario would have ended the fast track to further EU integration in criminal law as a better route to pursue than the alternative, namely the Court of Justice's case law. Five years after the successful entry into force of the Lisbon Treaty and the Stockholm Programme, and with all the legal possibilities in place to move forward with this EU project, the political climate in the EU seems all the more difficult, and it is marked by intense and heated debate on the subject. This brief contribution will offer some reflections on the future of AFSJ law and what the author considers to be the main challenges for EU governance in this area by offering eight key points for further reference in the future.

New Modes of Governance in the External Dimension of EU Migration Policy

AbstractAgainst the background of the limited “hard” law measures in place on external migration, the EU institutions are attempting to use a more differentiated approach to migration. This is evidenced by both the Stockholm Programme and the Global Approach to Migration (2005) which rely less on binding instruments and more on flexible, coordinated measures to meet their goals. This article discusses whether these measures can be understood as “new modes of governance” (NMG), which have only rarely been discussed insofar as the external sphere of EU governance is concerned. The article will also investigate the extent to which the initiatives are already in place, contextualising them in the broader debates on new governance and the conduct of the internal and external dimensions of the EU's system of governance. The article concludes that new modes of governance are indeed present in the external dimension of EU migration policy and that understanding them as such helps towards a better understanding of the contemporary state of policymaking at EU level.

EU cooperation on terrorism prevention and violent radicalization: frustrated ambitions or new forms of EU security governance?

This article questions the effectiveness of EU efforts to prevent terrorism and violent radicalization as well as the future prospects of such efforts. Driven by the pressure of attacks, member states have agreed on a comprehensive strategy to prevent radicalization and recruitment into terrorism, but simultaneously the strategy traces the limits of EU authority in member states in this regard. Meanwhile, the European Commission has focused on indirect measures, such as research support, for counter radicalization. However, over time, both flexible cooperation among a subset of member states and new EU initiatives have generated only few or biased policy outputs. The Stockholm Programme renewed the ambition to prevent terrorism at an early stage and underlined the EU's role in evaluation and knowledge exchange. This article questions the resulting proposal to create a network of local or subnational actors for best practice exchange. The article argues that preventive counterterrorism relies on contentious scientific evidence and that authoritative evaluations remain tied to national policy-making. Finally, the EU Commission cannot mobilize sufficient resources to ensure that ‘frontline’ organizations, such as police services, implement new practices. Taken together, this limits the potential for depoliticizing multilevel governance approaches to terrorism prevention. The conclusions of this article raise further research questions on the use of knowledge and complex governance patterns in EU internal security.

Nordic-Baltic Interaction in European Union Negotiations: Taking Advantage of Institutionalized Cooperation

Given the long tradition of regional cooperation around the Baltic Sea, one could expect the Nordic-Baltic European Union (EU) members (these countries are known as the NB6; they are Sweden, Demark, Finland, Latvia, Estonia and Lithuania) to pool power in exerting influence in the EU. By drawing on the empirical evidence from the case studies on the Baltic Sea Strategy, the Stockholm Programme, and the EU climate negotiations, the author explains the mechanisms through which the members of the institutionalized coalition of NB6 interact in pre-negotiation stage in the EU Council, thus enhancing their bargaining power. However, we cannot speak of a permanent regional “bloc” in the EU because of member states’ interest differences.

EU police and judicial cooperation before the Treaty of Lisbon: strengthening of the weakest link?

Three key questions arise from the encroachment of the European Union (EU) on national prerogatives in the administration of justice: What factors contribute to the weakest link collective action problem attending police and judicial cooperation within the EU? What were the substantive and institutional goals of the EU in this policy domain? What accounts for the rising level of police and judicial cooperation despite the persistence of barriers to cooperation and incentives to defect? This article first establishes the fundamental incentives and obstacles to cooperation in matters of transnational security threats in post-Westphalian Europe. It then proceeds to explore the evolution of police and judicial cooperation in Justice and Home Affairs between 1999 and 2009, to assess national contributions to police and judicial cooperation, and to consider the potential impact that the changes introduced by the Lisbon Treaty, Stockholm Programme and European Investigation Order. A final question is considered in the conclusion: Did the level and extent of police and judicial cooperation that emerged between 1999 and 2009 give rise to a community of practice that in turn fostered a nascent community of identity resilient enough to mitigate the weakest link technology of public goods production endemic to this policy domain?

Exporting EU integrated border management beyond EU borders: modernization and institutional transformation in exchange for more mobility?

The external dimension of European Union (EU) border management cooperation has recently been developed, in particular through the promotion of integrated border management (IBM). The European Commission has been keen to foster IBM, an attempt to reach EU standards in the absence of an EU common border service. Integrated border management is regulated under the Treaty of Lisbon, and the Stockholm Programme calls for its further development. This article analyses and compares the policy instruments promoting IBM standards beyond EU borders, namely the European Agency for Operational Cooperation at the External Border of the Member States of the EU (FRONTEX) (with the signature of Working Arrangements with the border services of third countries) and the activity of the EU Border Assistance Mission to the Republic of Moldova and to Ukraine (EUBAM) at the Ukrainian–Moldovan border. Moreover, it provides an empirical account of IBM activity carried out in the Eastern Partnership and Russia, and explains the reasons underlying the lack of IBM promotion in the southern Mediterranean countries.

The Rule of Law in the Area of Freedom, Security and Justice: Monitoring at home what the European Union preaches abroad

Most of the research on the rule of law in the European Union focuses on its external dimension. However, to be a credible rule of law promoter abroad, rule of law standards at home need to match what the EU preaches abroad. This article assesses developments regarding the strengthening of the rule of law in the Area of Freedom, Security and Justice heralded in 2009 as one of the objectives of the Stockholm Programme. Two mechanisms had been envisaged. First, a new peerreview mechanism, based on a Dutch initiative, would be introduced. Second, ambitions to improve the monitoring culture of Justice and Home Affairs instruments found some support in the strengthening of the relationship between the Council of Europe and the European Union. Not only the negotiations on the EU’s accession to the European Convention on Human Rights should improve the rule of law and mutual trust, but the EU could also better make use of the existing monitoring instruments of the Council of Europe. Inter-institutional tensions over the implementation of JHA policies, as well as turbulences surrounding the EU’s accession to the ECHR have nonetheless come to light and are explored in this article.

EU Environmental Crime and Punishment

Environmental crimes often have a transnational aspect and constitute a serious and growing problem that needs to be tackled at European level. Recent developments under the Lisbon Treaty can be regarded as an unambiguous authorisation for the reconsideration of all criminal law related regulation, including the current Directive 2008/99/EC of the European Parliament, and of the Council on the protection of the environment through criminal law in light of the new legal environment. The reconsideration is particularly relevant in so far as the 2008 directive does not lay down measures concerning the procedural part of criminal law, nor does it touch upon the powers of police, prosecutors or judges. Moreover, it does not contain provisions on the role of Europol/Eurojust in the fight against environmental crime. However, in accordance with Europol’s envisaged role by the Stockholm Programme, a former proposal made by the Danish government back in 2000 intended to include Europol in this work. It should also be emphasised that the investigation of environmental crime has its own difficulties. These difficulties multiply when the offence has a cross-border aspect and the cooperation of more than one member state’s law enforcement authority is required. The available legal tools in this regard are also emerging within the EU, and t need to be analysed. The creation of the so-called “EnviCrimeNet” 2011 is promising, however it a purely informal cooperation of national law enforcement experts, sharing non-operational information.In light of the post Lisbon EU legal framework, the current directive for environmental crime needs to be reassessed. The problem was also recognised by the Action Plan Implementing the Stockholm Programme, when it called for legislative proposals that would supplement Directive 2008/99/EC by protecting the environment through criminal law and Directive 2009/123/EC on ship-source pollution. This dissertation will focus on the potential for further development in the context of territorially based environmental crime.