CEJI Contribution Freedom, Security and Justice: What will be the future? Brussels, December 2008 Public Consultation A Secure Europe is an Inclusive Europe CEJI A Jewish Contribution to an Inclusive Europe, welcomes the opportunity to contribute to this consultation on the future of the European Union s Freedom, Security and Justice policy. The opening of this discussion to civil society and other parties is an indication that the European Union is indeed aiming to reshape the way in which Justice and Home Affairs matters are dealt with. CEJI hopes that a more holistic approach can be developed, reflecting the all-encompassing importance of the fields of freedom, security and justice, as crucial parts of the day-to-day well-being and safety of all Europeans. CEJI s contribution is based in its nearly 15 years of experience in the field of diversity and the combat against discrimination. As an educational organisation foremost, we witness the need for an inclusive and safe environment with equal opportunities, protections and obligations, so as to enable every citizen to flourish in and contribute to society as best they can. Since 2000, the European Union has taken several steps to combating discrimination and to creating a more inclusive Europe. Within CEJI s field of activities, these steps include the two Equality Directives of the year 2000 (2000/43/CE and 2000/78/CE) and the recently proposed Equality Directive. Equally important are the sustainable support from DG Education and Culture and DG Employment for projects that aim to combat exclusion and stimulate dialogue and activism against discrimination in all its forms, as well as the European Year 2007 for Equal Opportunities for All and the European Year 2008 of Intercultural Dialogue. The European Union as a whole seems then indeed to have prioritised the creation of a more inclusive, more safe union for all its citizens. In Freedom, Security and Justice policy the measures seem, however, to be more limited. The Framework Decision on Racism and Xenophobia was adopted by the Justice and Home Affairs Council on November 26 of this year, on the third attempt to find common ground between the Member States since the Framework Decision s first introduction in 2001. However, it is clear that the document is far from ideal, and that the standards it sets for minimum compliance are rather low. As such, this Framework Decision can be seen as a good first step, but as a first step only. The Union s Justice and Home Affairs policy for the coming years can, in our opinion, be better targeted to increasing the level of safety for European citizens. Safety, in CEJI s opinion, includes of course matters of policing, security and the creation of a pragmatic and better co-ordinated migration policy. Yet it does not stop there. An effective Justice and Home Affairs policy should also include the prevention of attacks on innocent citizens, especially when they are targeted for being different : for being Jewish, Muslim, gay or Roma. In this respect, CEJI believes that indeed, there is a need for better co-ordination, and
for a clearer focus on the criminalisation of racist and discriminatory acts, and on their prevention, all of which will help create not only a more inclusive but a free, safe and just European Union for all. 1. Improve the protection of fundamental rights 1.1. Do you think that the EU should promote respect of Fundamental Rights in Europe in addition to the activities of the Member States? Yes. CEJI believes that the European Union has a vital role in the promotion of fundamental rights and a significant responsibility to ensure not only that its own activities respect these standards but also that actions are taken in Member States to actively respect and protect fundamental rights. As the cornerstone of all legislation and of the democratic values of the European Union, fundamental rights are to be safeguarded throughout the Union and by the Union and its Member States. Moreover, fundamental rights should be recognised as the foundation upon which policy is built and the framework within which it operates. This is all the more true in the field of Freedom, Security and Justice. As the work of the European Union is grounded in the values of dignity, freedom, democracy, equality, the rule of law and respect for human rights, these values must indeed guide the Union in all aspects of its work, and especially in the work of the European Commission, as Guardian of the Treaties. An additional step, showing the European Union s resolve to safeguard fundamental rights, would be the ratification of and accession to various international human and fundamental rights instruments by the European Union. These would include the UN Convention on the rights of people with disabilities, the UN Convention on the Elimination of All forms of Racial Discrimination and the UN Convention on the elimination of Discrimination against Women. 1.2. Do you think that EU legislation promoting the implementation of fundamental rights such as data protection and fight against xenophobia and racism should be improved? Yes. The Treaties give the European Union a clear mandate to prevent and combat racism, xenophobia and discrimination. Future policy on Justice and Home Affairs must therefore develop mechanisms to ensure that the fight against racism, discrimination and xenophobia is pursued throughout the work of the European Union in this area, including through police cooperation and work towards a coherent judicial area in civil and criminal matters, data protection (for example, protection against ethnic profiling) and the fight against terrorism. While the adoption of particular legal instruments, such as the recently adopted Framework Decision on Combating Racism and Xenophobia as a Crime, is welcome, isolated steps such as these are not enough. With regard to this Framework Decision, CEJI urges the European Commission to carefully monitor the implementation of this instrument by the Member States, and to consult with a variety of actors, including from civil society, in doing so. Moreover, the delays in the formalisation of the Framework Decision demonstrated a worrying decline in the political commitment to this important issue as does the narrow scope of the instrument and its various opt-out clauses. To ensure that the Framework decision is then as effective as it can be, we believe that the European Commission should do its utmost to monitor its transposition and implementation in the Member States, to guarantee that the minimum standards of the instrument are met. This
should be combined with activities that would ensure the effective implementation of the legal standards in the Framework Decision, and that victims of racist crime and violence are ensured an effective access to redress. We further urge the European Commission to take up the Council s invitation to examine whether stronger measures are necessary. Solid tools are essential to the eradication of racist crime from Europe, and a directive on this topic would serve to robustly espouse the common values of the Union. CEJI hopes that in order to reach the point where anti-racism law is indeed enforceable by the European Commission, as well as by European citizens, a directive will soon take the place of this Framework Decision, and implores the European Commission to explore the possibilities of making this happen. We take heart from the precedent set by the European Court of Justice in September 2005 1 which annulled a third-pillar framework decision 2, ruling that the European Community indeed had competence to adopt criminal law instruments. CEJI believes that, as the rights of citizens have been clearly set out in the treaties, the Community has competence to deal with matters of racist crime in civil as well as in criminal law. Strengthened to the level of a directive, and complemented by the current and recently proposed Equality Directives, the Framework Decision on Racism and Xenophobia would then be a real step forward to fighting incitement nationally and in cases of transnational crimes such as cyberhate. A stronger, enforceable measure on discrimination and incitement to hatred would be a clear signal that the institutions of the Union view the protection of fundamental rights as the cornerstone of their mandates. 2. Develop EU citizenship 2.1. To facilitate the free movement of EU citizens within the EU do you think that the EU should do more to: (1) remove the remaining obstacles in the day-to-day life of EU citizens who move to another Member State? Yes. Migrants from within the EU are faced with various obstacles that need to be addressed in the context of the Justice and Home Affairs Policy. This includes economic, religious and ethnic exclusion and discrimination. Muslims and other religious minorities from one Member State can find that in their new home, their right to freedom of religion is more difficult to exercise, due to for instance a lack of recognition of their religion by their new country of residence, or due to a lack of understanding of their needs. Moreover, even those citizens who are members of a religion that is already recognised in their new home, such as Catholic Poles who move to Ireland, can find that they are excluded from certain schools or churches. It is crucial to sensitise all EU Member States to these consequences of increased mobility, both in the countries of origin and of destination. Similar barriers to the freedom of movement of EU-nationals occur regularly with other minorities, such as Roma, as do clear instances of discrimination and racism in their countries of destination. Thus enforcement of the legal rights to free movement must take particular account of the right to non-discrimination and must be undertaken swiftly in order to ensure an effective remedy for those subject to illegal deportation or other violations of the right to free movement. 1 2005/C 315/03 2 2003/80/JHA
Related issues on these matters include the lack of a minimum level of protection against racism as a crime and problems in securing the existing rights to non-discrimination, such as lack of transposition, lack of access to justice and wide exceptions to the principle of equal treatment. Moreover, to better aide the integration of migrants, and to ensure the protection of their rights to non-discrimination, more systematic strategies to assist with their integration into host societies are necessary at European and national level. Such strategies would include information provision on fundamental rights (in the language of the host country as well as in the migrants mother tongues), capacity building for individuals and for civil society organisations involved in migration and integration, and vocational skill development as well as intercultural training for the migrant and host society populations. (2) promote participation in elections to the European Parliament and in local elections? Yes, and specifically in the participation of ethnic and religious minorities in elections, both as voters and as candidates. Minorities are currently vastly underrepresented both in terms of voter turnout and in terms of representation in governments at all levels. Concrete measures are needed to improve this, starting with the upcoming European elections. 2.2. Do you think that the EU should do more in the field of promotion of the rights of children and the protection of women against violence? Yes, and in particular where related to women and children in migrant communities. There is a need for better coordination amongst social service agencies, and an enhanced understanding and meeting of the needs of migrant populations. In this way, there can be better prevention of the exploitation of women and children as well as more culturally sensitive (and more effective) methods for ensuring migrants integration and participation as equal citizens. Support services (e.g. child care, interpretation in hospitals, language training), job opportunities and community based initiatives should be improved with cross-cultural intelligence towards the empowerment of women. 3. Develop a common immigration policy for Europe 3.2. Do you think integration of legal immigrants should be further strengthened and that the EU could help Member States, for example by sharing information? Yes. A greater understanding of the social, political and cultural contexts from which migrants come will facilitate the creation of more effective and efficient strategies to assist with the integration of migrants in their new home communities. 6. Develop and promote a coherent judicial area for civil matters 6.1. Do you think that the EU should ensure mutual recognition between Member States (1) in respect of marriage, civil partnerships and civil status (names, marital status, descendants) (e.g. recognition of a family name or children's names in whichever European Union state you are living)? Yes. An increased respect for the civil and administrative status of people and families can only serve to increase the freedom of mobility by easing the transfer of families and of administrative histories, as this would take away a barrier that currently inhibits the freedom of movement, notably (but not only) of LGBT Europeans.
(2) of administrative documents, civil partnerships, registers of marriages, births and deaths (to be able to have one's birth or marriage certificate or other documents easily recognised in any other Member State)? Yes. An increased respect for the civil and administrative status of people and families can only serve to increase the freedom of mobility by easing the transfer of families and of administrative histories, given that this would take away another barrier that currently inhibits the freedom of movement, notably (but not only) of LGBT Europeans. 6.2. Do you think that the EU should develop a common EU approach on adoption? Yes. An increased respect for the civil and administrative status of people and families can only serve to increase the freedom of mobility by easing the transfer of families and of administrative histories, given that this would take away another barrier that currently inhibits the freedom of movement, notably (but not only) of LGBT Europeans. 7. Develop and promote a coherent judicial area for criminal matters 7.2. Do you think that the EU should have common minimum standards for the protection of crime victims? Yes, in particular in cases of crimes of exclusion, which would include not only discrimination and racist crime but also economic and social exclusion. This needs, however, to be complemented by a better harmonised policy on integration. Given the nature of racist crime it is also essential that targeted victim support initiatives be put in place, either through mainstream service provision or if appropriate through specific services dealing with racist crime. These services must be adequately supported to ensure the effective implementation of existing and new legislative provisions, and particularly in securing prosecutions. Civil society organisations (NGOs) provide victims with an essential complementary means of accessing support, and are as such a crucial party in this matter. These NGOs should be funded to provide alternative victim support services and complementary data collection mechanisms. To ensure the sustainability and long-term success of responses to victims of crimes, the needs of ethnic minority communities must be mainstreamed throughout the administration of justice. This requires the participation of ethnic minorities in all sectors of the system, and training and raising of awareness to sensitise majority actors (police officers, lawyers and judges) to the needs of ethnic minority communities. This needs to be complemented by capacity building and empowerment in the minority communities themselves. Exchanges of police officers and judges can aide in this process, and will make them better able to deal with the diverse population they are to be serving in the long term. 7.4. Do you think that the EU should harmonise criminal sanctions for cross-border crimes such as trafficking in human beings, sexual exploitation of children or environmental crime? Yes, and a particular focus is needed for crimes committed in cyberspace and on the internet. Only a harmonised approach to these issues can prevent the flight of hate speech and incitement on the internet to another, more permissive, EU Member State.
7.6. Do you think that the EU should improve cooperation between national judicial authorities and simplify cross-border prosecutions? Yes, and a particular focus is needed for crimes committed in cyberspace and on the internet. Only a harmonised approach to these issues can prevent the flight of hate speech and incitement on the internet to another, more permissive, EU Member State. 7.7. Do you think that the EU should encourage more exchanges between judges? Yes. This is a form of intercultural dialogue that will enable judges better to understand the more diverse population they will inevitably come into contact with as an outcome of the freedom of movement in the Union. 8. Reinforce the effectiveness of police cooperation 8.2. Do you think that the EU should encourage exchanges of police officers between different countries? Yes. This is a form of intercultural dialogue that will enable police officers better to understand the more diverse population they will inevitably come into contact with as an outcome of the freedom of movement in the Union. 9. Strengthen action to prevent and combat terrorism and specific forms of crime 9.3. Should the EU do more on high-tech crime and cybercrime, via the internet and other means of modern technology? Yes. Only a harmonised approach to these issues can prevent the flight of hate speech and incitement on the internet to another, more permissive, EU Member State. 11. Take advantage of new technologies In which of the following fields do you think that new technologies should be used for the development of an area of Freedom, Security and Justice? Protection of fundamental rights, including the fight against racist crime and discrimination, especially on the internet. Exchange of information Judicial cooperation Police cooperation 12. Develop the area of Freedom, Security and Justice in a globalized world 12.1 In which of the following areas do you think that cooperation with third countries is very important? Protection of fundamental rights Protection of children Rule of law Cyber crime, especially when related to the protection of fundamental rights. Police cooperation
13. Which (maximum five) areas or actions should in your opinion definitely be a priority for 2010-2014 in the area of Freedom, Security and Justice? Why? 1. Developing a comprehensive approach to combating Racism and Xenophobia that sees the fight against racism mainstreamed into all relevant areas of work, including through police cooperation and work towards a coherent judicial area in civil and criminal matters, data protection (for example, protection against ethnic profiling) and the fight against terrorism. 2. Ensuring the mainstreaming of fundamental rights, including the rights of ethnic and religious minorities, into all EU law and policy, especially within the field of education: by strengthening the European population s appreciation of diversity, intercultural skills and understanding of their fundamental rights, they will be better enabled and empowered to counteract more effectively all forms of discrimination and exclusion. 14. How do you think existing legislation in the area of Freedom, Security and Justice can be improved or simplified? Please, give (maximum five) examples? For what reasons? 1. Build upon the foundation set by the Framework Decision on Combating Racism and Xenophobia as a Crime to build effective protection for victims of racist crime. This would include active monitoring of the implementation of the Framework Decision, as well as an upgrade of this instrument to the level of a Directive, ensuring it is enforceable both by the European institutions and by individual Europeans. 2. Extension of the protection Against Discrimination on grounds of racial or ethnic origin, religion or belief and nationality to all areas of EU competence, including Justice and Home Affairs. CEJI a Jewish Contribution to an Inclusive Europe stands with individuals and organisations of all religions, cultures and backgrounds to promote a diverse and inclusive Europe. Our activities include delivering diversity education, facilitating and contributing to networks, advocacy at a European level, enhancing inter-faith and inter-cultural dialogue and facilitating Jewish participation. For further information, please contact Gidon van Emden, Policy Officer of CEJI, by email at gidon.vanemden@ceji.org, or by phone at +32-2-344-3444 (office) or +32-496-537-679 (mobile).