Category Archives: European Law

This is not OK

IMG_20160626_123022On hearing the Brexit result, my grandad texted me saying “Hopefully we’ll find a way to fix things and make this OK”. Like me he was shocked, disappointed and hurt that this was the choice made by such a significant proportion of Brits.

But this is really not OK.

It is not OK that our futures will be determined by the reckless actions of less than half of the population. It is not OK that the Leave campaign used lies and propaganda to get their way. It is not OK for Britain to wash its hands of the refugee crisis, to leave our neighbours to deal with this humanitarian challenge, a challenge whose root causes can be linked to Britain’s past actions.

The EU isn’t to blame for the UK’s more deep-rooted problems which caused a large section of society to vote to leave an economic, social and legal structure which took decades to build. As the news sinks in (slowly – like an infection in a dirty wound), many are already mourning what they are about to lose.

Since the referendum, the mood on the street is uncomfortable and tense, several of my friends have witnessed acts of racist language and threatening behaviour, the slim margin of victory having bolstered the confidence of a racist minority. The Brexit referendum result seems to have been misunderstood by some as an open season on minorities and foreigners. It is terrifying that some people see this as a green light for acting out their small-minded violent fantasies. The far right are gloating over their perceived triumph, they feel that, with this result, all their reprehensible views have a stamp of approval, that racism has suddenly become socially acceptable.

This tension is by no means unique to the UK. In Germany where large numbers of refugees have been taken in, a change is tangible: faces have changed, attitudes are changing and society is polarising, many working hard to adapt and understand, while some view new arrivals with suspicion and fear. In France, Spain, Italy and Netherlands tensions are rising, as well as in other European states, although the most xenophobic tend to be those who, as yet, have few foreigners. But the EU itself is not to blame for the rise of the far right. In fact the EU as a body is in a much better position to deal with these poisonous political opportunists, in promoting dialogue and responding to the root causes. Yes the EU needs reform, yes there needs to be a more balanced approach in policy decisions, but fragmentation and less integration is not the answer to fighting common problems and dealing with them effectively.

Just over half of the voters chose “Leave” yet this translates into roughly a quarter of the UK’s population. Many British overseas citizens (including my parents) have lived in mainland EU for over 15 years and therefore couldn’t cast a vote despite the profound effect this result will have on their lives. Residents of the UK from mainland Europe were also denied a say. Most of the younger voters wanted to stay in the EU. While the young and aspirational saw opportunities for education, work, business or just friendship and culture, this door has now been slammed and is about to be bolted. We, and our kids will still be suffering the consequences of this referendum when many of the Brexiters are long gone. But this is not to say everyone who voted out was over 60, there was a significant number of young and middle aged people too.

I grew up thinking of myself as a European, my British passport was just as good as my neighbour’s German one.

Now, although not worthless, my passport has suddenly lost a lot of advantages.

I worry about, the rise of the far right as they gloat in victory, I’m also concerned about the unravelling of key laws and agreements, such as the Human Rights Act and the Northern Ireland peace treaty and of course the effect of Scottish independence. The consequences we and our children will face are uncertain, while the regret I predict as a certainty. But the feeling now in my gut, as a European is one of a personal attack on my identity, on my rights and on my British passport. The nastiness of the “Leave” campaign shook me, it opened up vile sentiments and a culture of open racism. It brought me into a country I couldn’t recognise or identify with.

The fear tactics employed by the “Leave” campaign terrify me, a stirring of hatred and suspicion that is reminiscent of Nazi propaganda.

The atmosphere is one of “us vs. them”, tribalism at its worst. And which tribe do I even belong to?

It feels as if the UK has become a collection of small islands floating away from one another, unable to listen and unable to communicate.

London, where so many of our EU “foreigners” live and work, voted overwhelmingly to stay.

Living in London is an incredible experience for one main reason – that London is London – it is bizarre, unique, overcrowded, stressful and inspiring. It’s the most diverse and accepting place I have ever lived, anyone, and really anyone can be a Londoner. I don’t want this to change London, London is an incredible enclave in a confused polarised fearful and frustrated world. People here can quite happily live side by side in cramped buildings regardless of their culture or race. In London you can go to the shop wearing whatever you like be it your PJs or a one legged PVC trouser suit, without anyone even so much as blinking an eye. Every single person here contributes to its energy and it’s vibrance its magic and its intensity. What would London be without immigration, what would it be without the free movement of people across Europe?

I just hope that whatever happens next, will be thought out carefully and clearly to prevent any more damage from knee-jerk reactions based on nationalist nostalgic fantasies. The last time populism triumphed in Europe, things did not end well.

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The Unitary Patent set to simplify the European patent process

At the end of last year, the European Parliament in Strasbourg adopted two draft regulations on the creation of the unitary patent as part of the “patent package” which also includes the creation of a Unified Patent Court (UPC).

The President of the European Patent Office (EPO), Benoît Battistelli welcomed the advantages of the unitary patent.

“Cutting the costs of patenting inventions in Europe will strongly benefit European enterprises, especially research centres and SMEs. The vision of the founding fathers of the EPO to equip the European economy with a truly supranational patent system can now become a reality, strengthening Europe’s competitiveness.”

The unitary patent will have effect in the 25 participating European states and will allow for a more straightforward European patent system. It is based on two regulations and an international agreement, the first regulation creates the instrument and the second deals with the applicable language regime for the new patent. The UPC is the third and last component of the “patent package” and will be set up under an international convention. This will create a unified patent litigation system and will function as a single patent jurisdiction concerning infringement and validity questions related to unitary patents.

The agreement establishing the UPC was signed by 24 states on the 19 February 2013 (followed by Bulgaria on 5 March 2013) and will enter into force once thirteen EU member states have ratified the package, including France, Germany and the UK.

The unitary patent will co-exist with national patents and the classical European patent, with which it shares the legal basis and the procedure for grant (as laid out in the European Patent Convention). The only difference will occur in the post-grant phase, and unitary patents will be treated as a single patent. Therefore they will no longer need to be validated or translated, nor will they need to be administered nationally in each and every state. This will not only simplify the patent process but it will also lead to massive savings in terms of time and costs. The changes should make Europe more attractive for innovation and investors, bringing it on a par with its competitors in Asia and the US.

Guest Post by Professor Martine Herzog Evans: Is Prison Leave a Privilege?

Martine Herzog-Evans is a Law Professor at the University of Reims, France and specialises in criminology and prison law.

The Case – European Court of Human Rights, Grand Chamber, Boulois v. Luxembourg, applic. n° 33575/04

Mr Boulois, was imprisoned in Luxembourg, he filed several requests in order to obtain prison leave, which were all rejected by the Prison Board. He then lodged an application for judicial review with the Administrative Court. However, the Administrative Court denied it had jurisdiction to examine the application. In his application against the Grand Duchy of Luxembourg, Mr Boulois claimed that Article 6§1 of the ECHR had been violated arguing that he did not have access to a fair hearing or to a court. After the First Section of the ECtHR ruled in his favour, the government of Luxembourg requested for the case to be referred to the Grand Chamber.

The Ruling

« The Court reiterates that for Article 6 § 1 in its “civil” limb to be applicable, there must be a dispute… over a “right” which can be said… to be recognised under domestic law» (§90)

«  the Court observes that section 6 of the 1986 Law defines prison leave as… a “privilege” which “may be granted” to prisoners in certain circumstances» (§96)

« Thus it was clearly the legislature’s intention to create a privilege… the present case concerns a benefit created as an incentive to prisoners ». (§98)

« … the applicant could not claim, on arguable grounds, to possess a “right”» (§101)

« Furthermore… although the Court has recognised the legitimate aim of a policy of progressive social reintegration of persons sentenced to imprisonment… neither the Convention nor the Protocols thereto expressly provide for a right to prison leave» (§ 102).

« There has therefore been no breach of Article 6 » (§105).

Observations

In some European states, release and prison management decisions such as whether to grant prison leave, are deemed ‘administrative’ and are made by the executive. However, in France and other European countries such as Belgium, Spain, Italy, Germany, they are deemed to be of a ‘penal’ nature and a judge makes the decision. This often consists of a  hearing, where a lawyer can defend the inmate and, appeal, and even access to the highest court (Padfield and al. 2010). It appears that there is no clear consensus in Europe as to the very nature of what French law calls ‘sentence management measures’.

Despite ruling in Ganci v. Italy (30 Oct. 2003, n° 41576/98) that Article 6 applied to a disciplinary sanction if it affected civil rights such as family contacts; and in Enea v. Italy (Gd Chamber,  17 Sept. 2009, n° 74912/01), that a security prison regime affecting visitation did affect ‘civil rights’; in Boulois, the Grand Chamber analyses the request for prison leave as not being of a ‘civil’ nature. According to Luxembourg’s legal system, prison leave is a ‘privilege’ which aims at ‘encouraging’ prisoners, this corresponds to the historical view that prison leave is used to control prisoner’s behaviour. In view of modern penological goals, prison leave now serves two purposes: firstly, to allow prisoners to prepare their future and inevitably – except for lifers – release (e.g. by trying to find a job) ; secondly, to keep in contact with their families. Family rights are particularly important as they play a key role in deterring crime and are protected under Article 8 (Maruna, 2001; Farrall, 2002).

Prison leave should not be seen as a ‘privilege’. As stated above, in most modern nations, it is no longer seen as being a purely behavioural tool. It is true that most legal systems contain provisions which state that inmates ‘may’ or ‘can’ be granted prison leave. The ECtHR has itself ruled several times that by using the word ‘can’ does not mean that the authority or judge has full discretionary power ( Lambourdière v. France, 2 Aug. 2000, n° 37387/97 and Camps n. France, 23 Nov. 1999, n° 42401/98). It has been argued numerous times (e.g. in Herzog-Evans, 2012), that such legal provisions should be interpreted reasonably. Indeed when the law states that an offender ‘can’ be released or granted prison leave, it does not imply that he has an absolute right to either. Conversely, it does not mean that once all legal conditions and requirements are met, the court or governing authority can still deny the offender’s application simply ‘because it can’. One should not confuse discretion with whim. According to a fairer interpretation, when a legal system uses the verb ‘can’, it means that once all legal requirements are met – and this should include the protection of the public – then the authority or court should grant release or prison leave. In other words, even when ‘can’ is used, there is indeed a right to prison leave once its conditions are met.

According to the Grand Chamber, however, there is no such thing as a European principle of ‘reintegration’. The court only refers to the conventions and protocols, without mentioning recommendations. Recommendations may be deemed as being mere ‘soft law’; nonetheless, they do represent a consensus between European countries. Precisely, and to quote only a few, the European Prison Rules (2006, preamble), the European Probation Rules (2010, section 2), and Recommendation (2003)22 (preamble) all refer to reintegration as being a fundamental principle. In other words there is indeed a consensus amongst European member states relating to the importance of reintegration.

Finally, one must look at the bigger picture: the right to a fair trial as laid out in Art. 6, is not only a humanitarian procedural luxury that Western countries can afford.  Fair trial is first and foremost the mark of a democracy. In most modern democracies, the right to a fair trial conquers more and more legal territories. In France, for instance, it now applies to disciplinary sanctions, solitary confinement decision-making, release, recall, and other sanctions. Besides, from the criminological viewpoint, Art.6 is an essential component of the legitimacy of justice. As empirical studies have shown (Tyler, 1990; Tyler and Huo, 2002) it fosters compliance (Liebling, 2007) – probably substantive compliance as opposed to instrumental compliance (Robinson and McNeill, 2008) – in other words it is essential to grant leave from prison in order to prevent reoffending.

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