EU Law Blog

Tillack wins in ECHR

Remember that business we wrote about a while ago concerning the journalist Martin Tillack who was "investigated" by OLAF for having obtained documents alleging corruption by Commission officials ?

At the instigation of OLAF, the Belgian police conducted raids and searched Mr Tillack’s home and office and basically trashed both places.

Mr Tillack then took his case to the European Court of Human Rights. He sued the Belgian state, alleging a breach of Article 10 of the European Convention on Human Rights (freedom of expression) and claimed damages.

He won. And he was awarded €10000 (US$ 14,834) in damages and €30000 (US$ 44,497.51) in costs.

The ECHR held that the right of a journalist to protect his or her sources was protected by Article 10 of the European Convention on Human Rights that protected freedom of expression. According to the Court the right to protect sources was not a mere privilege to be granted or taken away depending on the lawfulness or unlawfulness of their sources, but was part and parcel of the right to information, to be treated with the utmost caution in the case of Tillack where he had been under suspicion because of vague, uncorroborated rumors, as subsequently confirmed by the fact that he had not been charged. The Court also described the lamentable and heavy handed manner in which the raids took place. It noted that almost all of Tillack's working papers and tools were seized and placed under seal (16 crates of papers, two boxes of files, two computers, four mobile phones and a metal cabinet). The Belgian police and OLAF even contrived to lose a chest of papers for seven months.

The ECHR judgment is only available in French here. Or try this link.

European Arrest Warrant Framework Decision Upheld: Case C-303/05

The Court of Justice has upheld the validity of the Council Framework Decision 2002/584/JHA on the European Arrest Warrant.

The idea behind the Framework Decision on the European Arrest Warrant is to simplify the system for the surrender of suspects or convicted persons in one member State when they are sought by the authorities of another. In order to do that, certain offenses are listed in the Framework Decision that give rise to surrender on the basis of a European arrest warrant without verification of the "double criminality" of the act. "Double criminality" means that the act is a criminal offense in both country issuing the warrant and in the country of surrender. According to the Framework decision, there is no need to check that the act is a criminal offense in the state of surrender if it is an offense punishable in the issuing State by a custodial sentence for a maximum period of at least three years.

A Belgian association of lawyers, the "Advocaten voor de Wereld", challenged the Belgian implementing legislation (see generally this questionnaire) before the Belgian Court of Arbitration (which is in fact a court, not an arbitration panel). That Court then referred several questions to the Court of Justice on the validity of the Framework Decision itself.

The Court of Justice held that the Framework Decision was perfectly valid.

The ‘Advocaten voor de Wereld’ contended that the removal of verification of double criminality for certain offences listed in the Framework Decision was contrary to the principle of legality in criminal matters. According to that principle, legislation must define clearly offences and the penalties which they attract. The Court of Justice disagreed that the Framework Decision infringed that principle. It pointed out that the Framework Decision does not harmonize the criminal offences in question in respect of their constituent elements or of the penalties which they attract. Consequently, the exact nature of the offenses and the penalties applicable are still determined by the law of the issuing member State, which must respect fundamental rights and fundamental legal principles, including the principle of the legality of criminal offences and penalties. The fact that the Framework Decision dispenses with verification of double criminality for certain categories of offenses does not change the role or obligations of the issuing member State in that respect.

The ‘Advocaten voor de Wereld’ submitted that the Framework Decision infringed the principle of equality and non-discrimination because certain offenses were listed as not requiring "double verification" whereas other offenses continued to require it. Again the Court disagreed. It held that the offenses on the list of those no longer requiring "double verification" were serious ones, justifying the simpler procedure for extradition.

Rather oddly, the ‘Advocaten voor de Wereld’ submitted also the member States should have concluded a convention on the subject of extradition and not a Framework Decision. The Court conceded that the European arrest warrant could equally have been the subject of a convention, but it held that it is within the Council’s discretion to give preference to the legal instrument of the framework decision in the case where, as in the present, the conditions governing the adoption of such a measure are satisfied.

This judgment of the European Court of Justice is a neat sequel to the previous judgment of the German Constitutional Court of July 18th 2005 we noted a while back.

On the European Arrest Warrant generally, see this interesting House of Lords Report from 2006.

The ECJBlog also has a write up on the judgment of the Court of Justice.

Commission activities in the fight on terrorism

For some reason The Commission has published this weird list of things it has done to help in the war on terror. No explanation is given why such a list has been published. Nor is a reason given why only things done since 2004 are listed.

Still, it is a handy thing to look at.

Some of the items on the list are almost completely unrelated to anti-terror actions, such as the proposal for a new customs code. And many of the items are just reports.

More interesting are the items listed of things that remain to be done.

UPDATE: Of course ! The publication marks the third anniversary of the Madrid bombing. Many thanks for the comment and reminder. How insensitive of us not to have made the link. Apologies to all.

OLAF, the press and corruption: Case T-193/04

The facts which led to the judgment of the Court of First Instance in Case T-193/04 Hans-Martin Tillack v. Commission hardly evoke ee cummings' famous poem:

i sing of Olaf glad and big
whose warmest heart recoiled at war:

What happened was this. In February and March 2002, Mr Tillack, a journalist at the German magazine Stern, published two articles in which he alleged that there were instances of misfeasance by officials within the European institutions to which attention had been drawn by another official of the European Communities, a certain Mr Van Buitenen. The Commission's anti-fraud and corruption office, OLAF, carried out an investigation to identify the bureaucrats who were the source of the leak of the memorandum written by Mr Van Buitenen. OLAF stated in a press release of March 27th, 2002 that

‘it is not excluded that payment may have been made to somebody within OLAF (or possibly another EU institution) for these documents’

. Stern admitted to being in possession of the Van Buitenen memorandum but denied that it paid money to obtain documents. Mr Tillack complained of the OLAF press release of March 27th 2002 to the European Ombudsman, who, in a recommendation to OLAF, stated that making allegations of bribery without a factual basis constituted an instance of maladministration. In February 2004, OLAF sent information concerning suspicions of breach of professional secrecy and bribery to the public prosecutor in Brussels and Hamburg. An investigation into alleged corruption and for breach of professional secrecy was opened in Belgium. The Belgian police conducted raids and searched Mr Tillack’s home and office and basically trashed both places.

Mr Tillack was not thrilled and brought an action before the Court of First Instance to annul the measure by which OLAF sent information to the public prosecutor in Brussels and Hamburg, and for damages to compensate for the harm suffered.

The Court of First Instance dismissed Mr. Tillack's claims.

In the first place, the Court of First Instance held that there was no legally binding measure to annul. The action OLAF took by sending information to the national authorities has no binding legal effect on them because they remain free to decide what action should be taken following an OLAF investigation. Consequently, any investigation and prosecution by the national authorities is a matter within their sole and entire responsibility.

As for the action for damages, the Court held there was no direct causal link between OLAF sending the information to the Belgian judicial authorities and the damage alleged in order for liability to be established on that basis.

The interesting bit is where the Court of First Instance finds that the characterization of behavior as an ‘act of maladministration’ by the Ombudsman in his decision on Mr. Tillack's complaint does not mean, in itself, that OLAF’s conduct constitutes a sufficiently serious breach of a rule of law.

For good measure, Mr. Tillack's claims for injunctive relief were dismissed at first instance and on appeal.

Since then, you'll be relieved to learn, OLAF has turned its attention to the serious problem of garlic smuggling. To the relief of the vampires in the EU.

Case C-176/03, criminal law and its follow up

After all the excitement about Case C-176/03 Commission v. Council - establishing that the European Community and not just the European Union could prescribe criminal punishments in a Community directive or other measure - here's some follow-up. For our previous post on this, see here.

The Commission issued a Communication to the European Parliament and the Council "on the implications of the Court's judgment of 13 September 2005 (COM (2005) 583 final/2). That Communication sets out the Commission's thinking on what the Court's judgment means. There is an annex which lists all the other measures that are affected by the judgment.

The European Parliament's Committee on Legal Affairs issued a report also, followed by a resolution of June 14th 2006 voted in the Plenary.

The French Assemblée Nationale issued a "rapport d'information" on January 25th, 2006. And there are some interesting comments made by Judge Puissochet and Advocate General Léger to the European Committee of the French Senate here.

More recently, on July 28th 2006, the House of Lords EU Select Committee issued a compendious and interesting report on "The Criminal Law Competence of the European Community".

Presumption of innocence Green Paper

The Commission has recently published a Green Paper on the presumption of innocence.

You can download it here.

The idea is to examine whether the presumption of innocence is understood in the same way throughout the EU. The Green Paper discusses what is meant by the presumption of innocence and what rights stem from it. It provides a useful summary of the case law of the European Court of Human Rights. It also discusses briefly how the presumption of innocence fits with other EU legislation. There is the mention, now and again of the odd judgment in the antitrust field but how the presumption of innocence applies in antitrust cases is not specifically addressed.

Finally, the Green Paper states that there is always the possibility of proposing a Framework Decision on evidence-based safeguards if the results of the public consultation shows a need for it.

Disqualifications and criminal convictions

Well worth reading is the Commission's report on "Disqualifications arising from criminal convictions in the European Union". "Disqualifications" are those restrictions placed on a person from exercising certain defined rights or engaging in certain activities as a consequence of a criminal conviction. The cross-border implications are obvious : if a person is convicted in one member State and disqualified from exercising, say, a particular profession, what happens if he or she moves to another member States and tries to exercise that profession ? So, the Commission's report defines what is meant by "disqualification", gathers together and assesses all the EC legislation which deals with disqualifications and outlines some future approaches.

It is a sort of follow-on from the "green paper" on on the approximation, mutual recognition and enforcement of criminal sanctions in the European Union.

A very useful study.