Fundamental rights: challenges and achievements in 2013 - Annual

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Acronyms
ECHREuropean Convention on Human Rights
ANNUAL REPORT
2013
CJEUCourt of Justice of the European Union
(CJEU is also used for the time predating
the entry into force of the Lisbon Treaty
in December 2009)
EASO
European Asylum Support Office
ECRIEuropean Commission against Racism
and Intolerance
ECtHREuropean Court of Human Rights
EDPS
European Data Protection Supervisor
EU-MIDIS European Union Minorities and
Discrimination Survey
FRA European Union Agency for Fundamental
Rights
FRANETNetwork of Legal and Social Science
Experts (FRA)
LGBTLesbian, gay, bisexual and transgender
NHRI
National Human Rights Institute
NGO Non-governmental organisation
TEUTreaty on European Union
TFEUTreaty on the Functioning of the EU
UNUnited Nations
Note: A list of international and regional human rights conventions
and their abbreviations can be found in Chapter 10.
Fundamental rights:
challenges and
achievements in 2013
The FRA highlights the titles of the
EU Charter of Fundamental Rights by using
the following colour code:
Dignity
Freedoms
Equality
Solidarity
Citizens’ rights
Justice
A great deal of information on the European Union Agency for Fundamental Rights is available on the Internet.
It can be accessed through the FRA website at fra.europa.eu.
Europe Direct is a service to help you find answers
to your questions about the European Union.
Freephone number (*):
00 800 6 7 8 9 10 11
(*) Certain mobile telephone operators do not allow access to 00 800 numbers or these calls may be billed.
Cover picture: iStockphoto; European Commission; OSCE (Milan Obradovic)
More information on the European Union is available on the Internet (http://europa.eu).
FRA – European Union Agency for Fundamental Rights
Schwarzenbergplatz 11 – 1040 Vienna – Austria
Tel. +43 1580 30-0 – Fax +43 1580 30-699
Email: [email protected] – fra.europa.eu
Luxembourg: Publications Office of the European Union, 2014
ISBN 978-92-9239-456-1 (online version)
doi:10.2811/69283 (online version)
ISBN 978-92-9239-453-0 (print version)
doi:10.2811/69256 (print version)
© European Union Agency for Fundamental Rights, 2014
Reproduction is authorised, except for commercial purposes, provided the source is acknowledged.
Printed in Belgium
Printed on process chlorine-free recycled paper (PCF)
Fundamental rights:
challenges and
achievements in 2013
Foreword
2013 was characterised by an intense debate on how best to protect and promote the rule of law within the European
Union (EU). This year’s Focus section, ‘An EU internal strategic framework for fundamental rights: joining forces to
achieve better results’, therefore looks at how to improve the protection of fundamental rights within EU Member
States and the Union they are collectively building. To ensure that the EU and its Member States fulfil their legal
obligations, fundamental rights must become more firmly embedded in the EU’s policy cycle.
FRA’s 2011 Annual report dedicated its focus section to the theme ‘Bringing rights to life: The fundamental rights
landscape of the European Union’ describing the existing system of fundamental rights protection in Europe. Last
year’s focus examined ‘The European Union as a Community of values: safeguarding fundamental rights in times of
crisis’; it dealt with the question on how the existing system reacts under the stress test of different crisis phenomena.
Building on these previous focus sections, this year’s looks forward, offering some ideas for strengthening the Union’s
fundamental rights profile and rendering the efforts of different actors at all governance layers more efficient.
Based on the agency’s new Multi Annual Framework for 2013–2017, this year’s Annual report follows a slightly
revised structure including a chapter on the integration of Roma populations in Europe. The reader will also discover
another new chapter on ‘The Charter before national courts and non‑judicial human rights bodies’. In this chapter,
we throw light on a less prominent but very important aspect of the EU Charter of Fundamental Rights, namely its
use before national courts.
Looking at the future of FRA’s Annual report, the reader will see more changes in future: next year’s annual report
will become shorter and sharper. We thus seek to meet our stakeholders’ expectations who, over the past years,
have provided such valuable feedback on and recognition of our annual report.
As in past years, we would like to thank the FRA Management Board for its diligent oversight of the Annual report
from draft stage through publication, as well as the FRA Scientific Committee for its invaluable advice and expert
support. Such guidance helps guarantee that this important FRA report is scientifically sound, robust and well‑founded.
Special thanks go to the National Liaison Officers for their comments on the draft, thereby improving the accuracy of
EU Member State information. We are also grateful to various institutions and mechanisms, such as those established
by the Council of Europe, which continue to provide valuable sources of information for this report.
Maija Sakslin
Chairperson of the Management Board
Morten Kjaerum
Director
3
The FRA Annual report covers several titles of the
Charter of Fundamental Rights of the European Union,
colour coded as follows:
FREEDOMS
EQUALITY
JUSTICE
Asylum, immigration and integration
Border control and visa policy
Information society, respect for private life and data protection
The rights of the child and the protection of children
Equality and non-discrimination
Racism, xenophobia and related intolerance
Roma integration
Access to justice and judicial cooperation
Rights of crime victims
Contents
FOREWORD ����������������������������������������������������������������������������������������������������������������������������������������������������������������������������� 3
FOCUS
AN EU INTERNAL STRATEGIC FRAMEWORK FOR FUNDAMENTAL RIGHTS: JOINING FORCES
TO ACHIEVE BETTER RESULTS ���������������������������������������������������������������������������������������������������������������������������� 7
CHARTER
THE EU CHARTER OF FUNDAMENTAL RIGHTS BEFORE NATIONAL COURTS AND NON‑JUDICIAL
HUMAN RIGHTS BODIES ����������������������������������������������������������������������������������������������������������������������������������� 21
1
ASYLUM, IMMIGRATION AND INTEGRATION ������������������������������������������������������������������������������������������������������������ 37
1.1. EU faces challenges managing sea borders ���������������������������������������������������������������������������������������������������������� 38
1.2. CJEU provides authoritative interpretation of EU asylum law ���������������������������������������������������������������������������� 39
1.3. Member States slow to implement EU law safeguards: the example of effective
return‑monitoring systems �������������������������������������������������������������������������������������������������������������������������������������� 45
1.4. Some Member States require excessive or disproportionate fees for residence permits –
an example of practical obstacles for migrant integration �������������������������������������������������������������������������������� 48
Outlook ��������������������������������������������������������������������������������������������������������������������������������������������������������������������������������� 51
Annex ����������������������������������������������������������������������������������������������������������������������������������������������������������������������������������� 52
Index of Member State references ���������������������������������������������������������������������������������������������������������������������������������� 55
Endnotes ������������������������������������������������������������������������������������������������������������������������������������������������������������������������������ 56
2
BORDER CONTROL AND VISA POLICY ������������������������������������������������������������������������������������������������������������������������ 61
2.1. EU adopts and proposes new legislation ��������������������������������������������������������������������������������������������������������������� 61
2.2. Number of arrivals in southern Europe rises �������������������������������������������������������������������������������������������������������� 63
2.3. Large‑scale IT systems in the areas of borders and visas ���������������������������������������������������������������������������������� 65
2.4. Towards a focus that includes the fundamental right aspects of EU visa policy �������������������������������������������� 69
Outlook ��������������������������������������������������������������������������������������������������������������������������������������������������������������������������������� 71
Index of Member State references ���������������������������������������������������������������������������������������������������������������������������������� 72
Endnotes ������������������������������������������������������������������������������������������������������������������������������������������������������������������������������ 73
3
INFORMATION SOCIETY, RESPECT FOR PRIVATE LIFE AND DATA PROTECTION ����������������������������������������������������� 81
3.1. Mass surveillance revelations spark global concern ������������������������������������������������������������������������������������������� 81
3.2. EU recognises need for robust data protection regime �������������������������������������������������������������������������������������� 85
3.3. Information society: EU moves to protect and codify fundamental rights online ������������������������������������������ 89
Outlook ��������������������������������������������������������������������������������������������������������������������������������������������������������������������������������� 95
Index of Member State references ���������������������������������������������������������������������������������������������������������������������������������� 96
Endnotes ������������������������������������������������������������������������������������������������������������������������������������������������������������������������������ 97
4
THE RIGHTS OF THE CHILD AND THE PROTECTION OF CHILDREN �������������������������������������������������������������������������� 103
4.1. Europe takes steps to improve access to child‑friendly justice ����������������������������������������������������������������������� 103
4.2. Europe tackles violence against children ������������������������������������������������������������������������������������������������������������ 106
4.3. Europe takes aim at child poverty ������������������������������������������������������������������������������������������������������������������������ 112
Outlook ������������������������������������������������������������������������������������������������������������������������������������������������������������������������������� 116
Index of Member State references �������������������������������������������������������������������������������������������������������������������������������� 117
Endnotes ���������������������������������������������������������������������������������������������������������������������������������������������������������������������������� 118
5
EQUALITY AND NON‑DISCRIMINATION �������������������������������������������������������������������������������������������������������������������� 127
5.1
5.2
5.3
5.4
5.5
EU legislation on equal treatment between persons stalls ������������������������������������������������������������������������������ 127
Discrimination on all grounds persists in the EU ������������������������������������������������������������������������������������������������ 129
Discrimination hinders full participation in society �������������������������������������������������������������������������������������������� 131
Member States adopt measures to counter discrimination ����������������������������������������������������������������������������� 134
EU deploys EU structural funds in countering discrimination ��������������������������������������������������������������������������� 137
5
Outlook ������������������������������������������������������������������������������������������������������������������������������������������������������������������������������� 139
Index of Member State references �������������������������������������������������������������������������������������������������������������������������������� 140
Endnotes ���������������������������������������������������������������������������������������������������������������������������������������������������������������������������� 141
6
RACISM, XENOPHOBIA AND RELATED INTOLERANCE �������������������������������������������������������������������������������������������� 149
6.1 Racism, xenophobia and related intolerance again top political agenda ������������������������������������������������������� 149
6.2 Racism, xenophobia and related intolerance fuel incidents and brutal crimes �������������������������������������������� 151
6.3 Discriminatory ethnic profiling persists ��������������������������������������������������������������������������������������������������������������� 155
6.4 Responses to manifestations of racism, xenophobia and related intolerance ��������������������������������������������� 156
6.5 EU Member States need better official data collection to address racist crime effectively ����������������������� 158
Outlook ������������������������������������������������������������������������������������������������������������������������������������������������������������������������������� 159
Index of Member State references �������������������������������������������������������������������������������������������������������������������������������� 160
Endnotes ���������������������������������������������������������������������������������������������������������������������������������������������������������������������������� 161
7
ROMA INTEGRATION �������������������������������������������������������������������������������������������������������������������������������������������������� 169
7.1. European institutions renew political commitment to Roma inclusion and integration ������������������������������ 169
7.2. Member States begin implementation of national Roma integration strategies ����������������������������������������� 170
7.3. Member States target integration in four priority areas ���������������������������������������������������������������������������������� 173
7.4. Anti‑Gypsyism, hate speech and hate crime against Roma ����������������������������������������������������������������������������� 179
Outlook ������������������������������������������������������������������������������������������������������������������������������������������������������������������������������� 181
Index of Member State references �������������������������������������������������������������������������������������������������������������������������������� 182
Endnotes ���������������������������������������������������������������������������������������������������������������������������������������������������������������������������� 183
8
ACCESS TO JUSTICE AND JUDICIAL COOPERATION ��������������������������������������������������������������������������������������������������� 191
8.1. EU and other international actors take steps to strengthen the rule of law and justice systems ������������� 191
8.2. Member States reform court procedures to facilitate access to justice ��������������������������������������������������������� 197
8.3. Member States turn attention to non‑judicial mechanisms ����������������������������������������������������������������������������� 201
Outlook ������������������������������������������������������������������������������������������������������������������������������������������������������������������������������� 203
Index of Member State references ������������������������������������������������������������������������������������������������������������������������������� 204
Endnotes ���������������������������������������������������������������������������������������������������������������������������������������������������������������������������� 205
9
RIGHTS OF CRIME VICTIMS ���������������������������������������������������������������������������������������������������������������������������������������� 211
9.1. EU Member States take steps to enhance victims’ rights �������������������������������������������������������������������������������� 211
9.2. Member States enhance victims’ access to compensation ������������������������������������������������������������������������������ 214
9.3. Member States move to strengthen rights of victims of domestic violence
and violence against women �������������������������������������������������������������������������������������������������������������������������������� 215
9.4. EU focuses on enhancing rights of hate crime victims ������������������������������������������������������������������������������������� 218
9.5. Member States address rights of victims of trafficking and severe forms of labour exploitation ����������� 221
Outlook ������������������������������������������������������������������������������������������������������������������������������������������������������������������������������ 225
Index of Member State references ������������������������������������������������������������������������������������������������������������������������������� 226
Endnotes ��������������������������������������������������������������������������������������������������������������������������������������������������������������������������� 227
10 EU MEMBER STATES AND INTERNATIONAL OBLIGATIONS ������������������������������������������������������������������������������������ 233
10.1 Fundamental rights landscape grows ever more intricate ������������������������������������������������������������������������������ 233
10.2Member States accept new Council of Europe instruments ���������������������������������������������������������������������������� 234
10.3OSCE monitoring provides human rights feedback ������������������������������������������������������������������������������������������� 240
10.4Member States accept UN treaties ����������������������������������������������������������������������������������������������������������������������� 240
10.5National‑level monitoring and follow‑up supports human rights performance ������������������������������������������ 246
Outlook ������������������������������������������������������������������������������������������������������������������������������������������������������������������������������� 249
Index of Member State references ������������������������������������������������������������������������������������������������������������������������������� 250
Endnotes ���������������������������������������������������������������������������������������������������������������������������������������������������������������������������� 251
6
An EU internal strategic framework
for fundamental rights:
joining forces to achieve better results
The EU Charter of Fundamental Rights
before national courts and non-judicial
human rights bodies
FOCUS
An EU internal strategic
framework for fundamental
rights: joining forces to achieve
better results
The European Council will map out new strategic priorities in 2014 for the European Union (EU) in policy fields
linked to fundamental rights. A new European Parliament and European Commission will support the EU in
concluding the ratification of the European Convention on Human Rights (ECHR). To make sure that the EU and
its Member States, which form a community of values, fulfil their legal obligations, fundamental rights must
become more firmly embedded in the EU’s policy cycle: public authorities at all layers of governance must join
up to guarantee that the EU and its Member States fully conform to the Charter of Fundamental Rights of the
EU in Justice and Home Affairs, and all other policy fields in which they interact. This could best be provided
in a ‘Strategic EU Framework on fundamental rights’ complementing the newly presented EU Framework on
strengthening the rule of law. This focus section presents some first thoughts on how fundamental rights
considerations could feed more systematically into concrete policy making at national and EU level without
interfering with the principle of subsidiarity and the balance between the different layers of governance. Rather
than describing the format of such a strategic EU framework, this focus section presents ideas for some of its
potential content (‘tools’).
This focus section of the Annual report explores
how to improve the protection of fundamental rights
within EU Member States and the Union they are
collectively building. It thus forms the third pane in
a triptych of focus sections. The first presented the
fundamental rights landscape in Europe, that is the
standards, institutions and mechanisms existing at all
levels of governance of the United Nations (UN), the
Council of Europe, the EU and its Member States.1 The
second pane analysed whether and how to safeguard
fundamental rights in times of crisis, be it economic,
social or political.2
The evidence FRA has collected over the years
­consistently shows that there is no room for compla‑
cency. If fundamental rights are to be safeguarded, all
those involved must commit to them with vigour. The
rule of law debates, which gained intensity in 2013,
confirmed this, by focusing on how to ensure that all
EU Member States uphold the values of the Union as
enshrined in Article 2 of the Treaty on European Union
(TEU). The debates signalled clearly that respect for
these values cannot be taken for granted but requires
a shared and regularly renewed commitment by all
those concerned, at all levels of governance.3
“The Union is founded on the values of respect for human
dignity, freedom, democracy, equality, the rule of law
and respect for human rights, including the rights of
persons belonging to minorities. These values are common
to the Member States in a society in which pluralism,
non‑discrimination, tolerance, justice, solidarity and
equality between women and men prevail.”
Treaty on European Union (TEU), Article 2, OJ 2012 C 326
The year 2014 offers a window of opportunity to
­underline and promote these shared values. Indeed,
as the Stockholm Programme runs its course by the end
of the year, the EU will again need to define its strategic
priorities in policy fields relevant to fundamental rights,
including immigration, asylum, visa, border control,
integration, criminal justice and civil justice.4
During the year, the EU will continue to take decisive
steps towards acceding to the ECHR, thereby submitting
the Union to an external fundamental rights scrutiny
and further improving fundamental rights protection
in the EU. At the end of 2014, the transitional period for
police cooperation and judicial cooperation in criminal
matters elapses. In practice, this means that the jurisdic‑
tion of the Court of Justice of the European Union (CJEU)
7
Fundamental rights: challenges and achievements in 2013
will be extended and the European Commission will be
entitled to bring infringement procedures in additional
areas of relevance to fundamental rights to the court.5
The question then arises how the EU and its Member
States could establish a more structured frame‑
work for developing and implementing fundamental
rights‑related policies at various levels of governance,
and this in a joint effort. Such an internal framework
could be equivalent to the EU Strategic Framework and
Action plan, which has been guiding the EU’s external
human rights policies since 2012. Adopting such
a framework would show that EU practices at home
accord with what the EU projects to the outside world.6
Before suggesting 20 tools that could be used to make
such a framework a reality, this focus section outlines
how discussions on the EU’s values gained momentum
in 2013 and how fundamental rights fit into that picture.
Debate on EU values gains
momentum in 2013
The debate on the EU’s values gained intensity
and depth in 2013 as a result of proposals and ideas
tabled by the European Commission,7 the European
Parliament,8 ­ministers,9 academic writers10, policy con‑
sultants11 and civil society organisations.12 The idea of
a new instrument to protect the EU values in Article 2
of the TEU garnered increasing consensus, but views
diverged on the actors to involve, the procedures to
apply and whether or not to impose sanctions.13
In May 2013, the Council of the European Union called
for “consensus on what needs to be done in a system‑
atic way to protect fundamental rights even at a time
of severe economic crisis and to promote the rule of
law, while also respecting the national constitutional
traditions of the Member States”.14 The Council further
stressed the need “to take forward the debate [on the
rule of law] in line with the Treaties on the possible need
for and shape of a collaborative and systematic method
to tackle these issues”.
The Council of the European Union raised seven points
to guide this debate, stressing that the discussion and
respective proposals should:
1. be inclusive in terms of relevant bodies and
­participation of civil society;
2.be based on an agreed understanding of the
­problems to be addressed and methods applied;
3. guarantee full synergy and avoid overlaps, especially
with the Council of Europe;
4. identify the EU’s added value of action;
8
5. consider the full range of possible avenues and seek
consensus among Member States;
6. be based on transparency and equality;
7. aim at real positive impact on the lives of ordinary
persons.
The European Parliament also voiced its views, calling
on the European Council, the European Commission and
national parliaments to take action in order to protect
Article 2 values. It underlined, vis‑à‑vis the European
Commission, that infringement procedures are insuf‑
ficient to guarantee such respect. It also provided
benchmarks for “a new and more effective method of
safeguarding fundamental values”, including judicial
independence, synergy or respect for national consti‑
tutional traditions and equality among Member States.
The European Parliament called on national parliaments
to “enhance their role in monitoring compliance with
fundamental values and to denounce any risks of
deterioration of these values that may occur within
the EU borders”.15
On a more operational level, the European Parliament
reiterated that “the setting up of such a mechanism
[to safeguard fundamental rights] could involve
a rethinking of the mandate of the European Union
Agency for Fundamental Rights [FRA], which should
be enhanced to include regular monitoring of Member
States’ compliance with Article 2 TEU”.16 The parliament
recommended the creation of a “monitoring mecha‑
nism, to be dealt with by the [European] Commission
with exclusive priority and urgency, coordinated at the
highest political level and taken fully into account in the
various EU sectoral policies”.17
The European Parliament also recommended setting up
a commission to ensure the continued and robust use
of the eligibility prerequisites that states must currently
fulfil to join the EU, known as the Copenhagen criteria.
This commission would be a high‑level group that would
cooperate with existing mechanisms and structures to
ensure the Copenhagen criteria’s continued use.18 In
early 2014, the European Parliament reiterated these
proposals and called on the European Commission, “in
collaboration with the FRA, to adopt a decision estab‑
lishing this ‘new Copenhagen mechanism’, as it did
for the monitoring of corruption in the EU and in the
Member States, and to revise the FRA rules in order to
give it enhanced powers and competences”.19
In November 2013, the European Commission convened
the ‘Assises de la justice’ conference, where over
100 contributions to the discussions on the rule of law
and future of justice policies were submitted.20 The dis‑
cussions and submissions fed into the Commission’s
EU Justice Agenda for 202021 and into a new framework
to strengthen the Rule of Law.22
An EU internal strategic framework for fundamental rights: joining forces to achieve better results
“Today everybody mentions the situation in Hungary and
Romania. Are we sure that we will not see such a situation
again in a couple of weeks in another EU country? Now let
us be honest – and some of the parliamentarians have said
it very clearly – we face a Copenhagen dilemma. We are
very strict on the Copenhagen criteria, notably on the rule
of law in the accession process of a new Member State but,
once this Member State has joined the European Union, we
appear not to have any instrument to see whether the rule
of law and the independence of the judiciary still command
respect.”
“We as a European Union need to stand firm on our values
and on the rule of law, and that is why I think that we
need to put in place an objective mechanism to assess the
judicial systems in all of our […]Member States, because
our infringement procedures are too technical and too slow
to react to high‑risk situations concerning the rule of law,
and because the Article 7 procedure is a nuclear option that
should only be used by the Commission, Parliament and the
Council when there is really no other solution.”
Viviane Reding, Vice President of the European Commission, speech to
the European Parliament on 12 September 2012, Doc. 13780/12, PE 413,
Annex III, available at: http://register.consilium.europa.eu/doc/srv?
l=EN&t=PDF&gc=true&sc=false&f=ST%2013780%202012%20INIT
This framework is meant “to address and resolve
a ­situation where there is a systemic threat to the rule
of law”, complementing the infringement procedure
under Article 258 of the TFEU as well as the procedures
under Article 7 of the TEU.23 Rule of law is referred to as
“a constitutional principle with both formal and substan‑
tive components […] intrinsically linked to respect for
democracy and for fundamental rights”.24
The framework as presented by the European
Commission is “not designed to be triggered by indi‑
vidual breaches of fundamental rights or by a miscar‑
riage of justice”. Rather it will be activated in “situations
where the authorities of a Member State are taking
measures or are tolerating situations which are likely
to systematically and adversely affect the integrity,
stability or the proper functioning of the institutions
and the safeguard mechanisms established at national
level to secure the rule of law.”25
The European Commission envisages a three‑stage
­p rocess for the mechanism. First, the Commission
assesses if there are “clear indications of a systemic
threat to the rule of law”. Such an “assessment can
be based on the indications received from available
sources and recognised institutions, including notably
the bodies of the Council of Europe and the European
Union Agency for Fundamental Rights”.26 In this first
stage, the Commission could send a “rule of law opinion”
substantiating its concerns and allowing the EU Member
State to respond. The opinion would be made public,
but the exchanges with the Member States would, as
a rule, be kept confidential.
At a possible second stage, if the European Commission
finds that there is “objective evidence of a systemic
threat and that the authorities of that Member State
are not taking appropriate action to redress it”, it would
issue a “rule of law recommendation”. The Commission’s
assessment and conclusions would be based on a dia‑
logue with the Member State concerned.
At a third stage, the European Commission would
monitor the follow‑up to that recommendation. If the
EU Member State does not follow up the recommenda‑
tion in satisfactory fashion, the Commission will assess
the possibility of activating one of the procedures laid
down in Article 7 of the TEU.
This new rule of law framework clarifies how the
European Commission will, in the future, proceed
in situations where an EU Member State runs the
risk of violating the Article 2 values. It complements
both the European Commission’s first corruption
report as ­p resented in early 2014 27 and its efforts
to assist the EU and Member States to “achieve
more effective justice by providing objective, reli‑
able and comparable data on the functioning of the
justice systems of all Member States” through its
annual “Justice Scoreboard”.28
Protecting and promoting fundamental rights is a means
to prevent rule of law crises proactively. Moreover, less
regard for fundamental rights can indicate systemic
deficiencies in the rule of law.29 Given the persisting
fundamental rights challenges that FRA evidence
consistently identifies, and recognising the window of
opportunity offered by the incoming 2014–2019 legisla‑
tive period, EU Member States and institutions could,
therefore, consider complementing this rule of law
framework with a strategic fundamental rights frame‑
work. Bearing in mind the interdependencies between
the rule of law and fundamental rights (Table 0.1),
a renewed and enlarged commitment to fundamental
rights could be beneficial to the European Commission’s
rule of law framework.
Complementing the European Commission’s f­ ramework
on the rule of law with a strategic framework on
fundamental rights would allow the EU to take
three steps forward:
uu enable a more encompassing and substantial
­reading of the rule of law, covering explicitly all
fundamental rights corresponding largely to the
values in Article 2 of the TEU (see Table 0.1) – ar‑
eas where the EU undoubtedly plays a role and has
much to offer in terms of standards and procedures;
uu render the EU’s role more inclusive by involving
all relevant players, including the European Parlia‑
ment, the Council of the European Union and other
relevant EU bodies as well as relevant actors at na‑
tional level, such as national parliaments, bodies
with a human rights remit and civil society;
9
Fundamental rights: challenges and achievements in 2013
Table 0.1: TEU Article 2 values compared with the Charter of Fundamental Rights
Values as listed in Article 2 TEU Equivalence in the Charter (shaded Charter titles cover
the ­corresponding Article 2 values only partly)
Human dignity
Human dignity (Title I)
Freedom
Freedoms (Title II)
Democracy
Citizens’ rights (Title V)
Equality
Equality (Title III)
The rule of law
Justice (Title VI); Citizens’ rights (Title V)
Respect for human rights
All titles of the Charter
Rights of persons belonging to minorities
Equality (Title III)
Pluralism
Equality (Title III)
Non‑discrimination
Equality (Title III)
Tolerance
Equality (Title III)
Justice
Justice (Title VI)
Solidarity
Solidarity (Title IV)
Equality between women and men
Equality (Title III)
Source:FRA
uu not only address the behaviour of EU Member
States but also put emphasis on the EU’s own per‑
formance in terms of upholding the rule of law and
safeguarding fundamental rights.
Towards an EU strategic
framework on fundamental
rights
A renewed commitment to fundamental rights could
be instrumental in ensuring that the EU and its Member
States conform to their obligation to “respect the rights [as
laid down in the Charter of Fundamental Rights], observe
the principles and promote the application thereof”.30
Moreover, providing a new internal EU strategic frame‑
work would be beneficial to promote “the well‑being of
its peoples”, including social progress and social inclusion,
“social justice and protection, equality between women
and men, solidarity between generations and protec‑
tion of the rights of the child” – which are all explicit
and overarching EU aims.31 Adopting such a framework
would increase the consistency between the EU’s policies
towards other countries and the Union’s commitment to
its own institutions and its Member States.
10
Three questions arise when proposing a strategic
framework on fundamental rights:
•• What would an EU strategic framework deliver?
A well‑designed and implemented EU strategic
framework could help render the interventions of
the European Parliament, the Council of the EU and
the European Commission in the area of fundamen‑
tal rights more structured, better coordinated and
effective. Such a framework, which would include
existing strategies in specific sectors, would help
give effect to the Union’s obligation to comply with
fundamental rights in the development of its leg‑
islation and policies, as well as that of EU Member
States when they implement EU law. Such effects
would enhance the levels of trust between Mem‑
ber States’ legal systems and, among those who
live there, in the EU. The protection of fundamental
rights is considered as the value that is most repre‑
sentative of the EU.32 The protection of fundamental
rights is not only expected but also instrumental for
the EU’s functioning. High levels of trust between
national legal systems are essential in a system
such as the EU’s, which is built on mutual recog‑
nition and makes use of such instruments as the
European Arrest Warrant.33
An EU internal strategic framework for fundamental rights: joining forces to achieve better results
Whereas the values in Article 2 are “common to
the Member States”, the fulfilment of these fun‑
damental rights standards varies within the EU. As
the CJEU confirmed in the context of asylum law,
“European Union law precludes the application of
a conclusive presumption that the [responsible]
Member State […] observes the fundamental rights
of the European Union.”34 An EU strategic framework
could make evidence and assessments accessible to
form a basis for trust, allowing for reliable but not
not “conclusive”, presumptions that Member States
reach the shared standards. Equally, such a stra‑
tegic framework could provide further instruments
to guarantee that the EU itself conforms with the
Charter of Fundamental Rights, the ECHR and other
human rights standards.
•• How would an EU strategic framework achieve
this aim? Whereas the rule of law framework is
reaching out to areas beyond the scope of EU law,
an EU strategic framework on fundamental rights
would concentrate on areas covered by EU law and
pay respect to the principle of subsidiarity. It would
also be more encompassing than the framework for
strengthening the rule of law, as it would cover all
Charter rights (see Table 0.1); it would bring all ac‑
tors together; and it would establish a policy cycle
making the respect for the Charter a permanent
and operational policy consideration rather than an
ad hoc and crisis‑driven concern.
An EU strategic framework should start with the
EU itself, including the way EU law is created: legis‑
lation that is understood by both those to whom it
is addressed and its intended beneficiaries, and that
is perceived as legitimate, could be better imple‑
mented at all layers of governance. An EU strategic
framework would – through tools such as those
proposed in the following section – help ensure
that fundamental rights are taken into account at
all stages of enforcement. EU law is typically imple‑
mented not by EU bodies but by a variety of actors
at different layers of governance, including the local
level. An EU strategic framework could substantially
contribute to more coordination, cooperation and
participation. The 20 tools proposed below should
be able to enhance the quality of legislation and
to lead to better implementation and higher levels
of trust without any of them extending the field of
EU law application or necessitating any changes to
the EU treaties.
•• Who are the relevant actors in such an EU ­strategic
framework? Against the backdrop of the EU sys‑
tem’s multilevel character, a strategic EU frame‑
work would need to involve the EU level as well
as the national, regional and local levels so that all
fundamental rights actors can join efforts within
their respective competencies. Such a joined‑up
approach would aim at achieving shared objectives
while optimising the potential for synergies.
FRA evidence shows that institutions and procedures
at international, European, national,regional and local
levels tasked with the protection of fundamental rights
should better coordinate responses to fundamental
rights, ensuring that the various components work
well together without leaving gaps in rights protection.35
By way of illustration, FRA submits for consideration
20 tools that could form part of a future EU strategic frame‑
work. To facilitate readability, these tools are divided into
clusters at three levels: EU, Member State and general.
Taken together, the three clusters form building blocks
for a genuine EU internal fundamental rights strategy
that would link all relevant actors in a fundamental
rights policy cycle. Investing in the implementation of
only some of these tools could contribute to increasing
consistency between the EU’s external and internal
behaviour in the area of fundamental rights protection.
Tools at EU level
1.Assessing
fundamental
rights
implications
EU-level tools
Ex ante
assessments
Legislative
mainstreaming
To avoid the EU legislature
Implementation
unnecessarily compro‑
guidelines
mising fundamental rights
and exceeding “the limits
Peer evaluation
imposed by compliance
Rights-proofed
with the principle of pro‑
EU funds
portionality in the light of
[…] the Charter”,36 various
Policy cycle
EU mechanisms assess
fundamental rights impacts
Annual
consultation
and the compatibility of
forthcoming EU legisla‑
Cooperation with
tion with human rights
Council of Europe
standards. These could be
reviewed to identify poten‑
tial improvements. Such an
exercise could look into the practical application of dif‑
ferent mechanisms such as the European Commission’s
Strategy for the effective implementation of the Charter
of Fundamental Rights by the European Union,37 the
Council’s Guidelines on methodological steps to be
taken to check fundamental rights compatibility in
the Council’s preparatory bodies 38 or the European
Parliament’s Rule 36 on “respect for the Charter of
Fundamental Rights of the European Union”.39 It would
also be worth exploring how to involve independent
external expertise where doubts arise about compat‑
ibility with the Charter of Fundamental Rights; and how
to involve grass‑roots civil society organisations when
assessing upcoming EU legislation’s potential impacts.40
11
Fundamental rights: challenges and achievements in 2013
Such avenues could further increase the efficiency and
transparency of the existing mechanisms. Moreover,
such mechanisms should also be used where the EU is
involved in austerity measures: the European Parliament
called on the Troika composed of the European Central
Bank, the European Commission and the International
Monetary Fund to ensure compliance with fundamental
rights, “as failure to comply constitutes an infringement
of EU primary law”.41
2.Mainstreaming fundamental rights as
required by primary law
Fundamental rights should not be reduced to a function
of imposing limits on legislation and public adminis‑
tration. Fundamental rights have a dual role: they
do not act just as a shield; they are also an enabling
‘sword’ that can point towards the design, adoption and
implementation of certain initiatives, thereby fencing
potential violations.42 In certain instances, this active,
galvanising function is not an option but a legal obliga‑
tion. According to the TFEU, the Union must “in all its
activities” aim to “eliminate inequalities, and to pro‑
mote equality, between men and women” (Article 8),
to “take into account requirements linked to the pro‑
motion of a high level of employment, the guarantee
of adequate social protection, the fight against social
exclusion, and a high level of education, training and
protection of human health” (Article 9) and to “combat
discrimination based on sex, racial or ethnic origin,
religion or belief, disability, age or sexual orientation”
(Article 10). As the Lisbon Treaty approaches its fifth
anniversary as a binding treaty in late 2014, it is time
to assess how the EU legislator has delivered on this
transversal fundamental rights obligation to promote
fundamental rights actively throughout all policy fields.
It is also important to check the competence basis in
EU treaties that can be used to improve the enjoyment
of fundamental rights in the different policy fields (see
Tool 8, on the cooperation between the EU and the
Council of Europe).43
3.Developing implementation guidelines
EU law is often the result of difficult compromises
achieved after long negotiations, so sometimes it is
vague or contains broad scope for exceptions or dero‑
gation at national level. The CJEU has, for example,
issued over 20 rulings since 2009 clarifying provisions
of the EU asylum acquis alone.44 It would therefore be
useful to introduce, especially in policy contexts that are
sensitive in terms of fundamental rights, explanations
that can guide national authorities in implementing
EU legislation in a way that avoids violating funda‑
mental rights. Recent examples include the European
Commission’s guidance on the implementation of the
Family Reunification Directive, 45 the Victims Directive46
and the Free Movement Directive.47 Where such guid‑
ance aims specifically at protecting and promoting
12
fundamental rights – such as the guidance FRA offers
on personal name records 48 or on apprehending
irregular migrants49 – it could form an important ele‑
ment of an EU strategic framework on fundamental
rights. Implementing guidelines could also serve the
strategic framework in advising on how fundamental
rights concerns should be taken into consideration when
implementing legislation that is not specific to funda‑
mental rights, such as a regulation on specific EU funds
(see Tool 5).
4.Establishing peer‑monitoring and
peer‑evaluation practices
A true fundamental rights culture requires the regular
and independent monitoring of how relevant legislation
is applied. Schengen evaluations covering sea borders
should review, for example, as part of their overall
assessment, if instructions and training provided to law
enforcement officers patrolling sea borders adequately
address fundamental rights and in particular the prin‑
ciple of non‑refoulement. To this end, evaluators should
be provided with appropriate guidance and training on
fundamental rights. Ex post evaluation of legislation is
especially useful if fed into a reform of EU legislation and
policies as part of a fundamental rights policy cycle. To
provide for a general evaluation format across all Justice
and Home Affairs policies, the European Commission
could submit a proposal according to Article 70 of the
TFEU, “laying down the arrangements whereby Member
States, in collaboration with the Commission, conduct
objective and impartial evaluation of the implementation
of the Union policies”. The results of such an evaluation,
which involves input from independent expert bodies and
civil society organisations, should be reported back to the
European and national parliaments and feed directly into
the fundamental rights policy cycle (see Tool 7).
5.Guaranteeing that use of EU funds
is ‘fundamental‑rights‑proof’
EU funds are administered in a decentralised way. It is
important to ensure that all EU‑financed projects and
activities adhere to the obligations flowing from the
Charter of Fundamental Rights. The EU should make this
explicit in the operational parts of the respective legal
instruments rather than in their preambles.50 In addition,
ex ante conditionalities could be introduced whenever
the EU provides funds. The regulation laying down such
conditionalities for Structural Funds disbursals adopted at
the end of 201351 was an encouraging example but could
be expanded and improved. When reviewing expendi‑
tures, the Court of Auditors should take into account ex
ante conditionalities, and other provisions related to
fundamental rights, in ‘basic measures’, or secondary
provisions on which an expenditure is based. The pos‑
sibility of introducing sanctions should be considered in
cases where the use of EU funds infringes fundamental
rights. Moreover, it appears important that any bodies
An EU internal strategic framework for fundamental rights: joining forces to achieve better results
set up at national level to decide which projects receive
EU funding, such as boards, include ‘fundamental rights
focal points’ from relevant departments of the admin‑
istration as well as independent fundamental rights
experts. These fundamental rights experts could be
selected from academia, national human rights institu‑
tions (NHRIs) or non‑governmental organisations (NGOs).
All tools developed for the planning, implementation and
evaluation of EU‑funded projects should incorporate fun‑
damental rights in an effective and meaningful manner.
This not only helps protect and promote fundamental
rights but also avoids tensions with EU primary law and
obligations under international law.52
6.Creating an EU fundamental rights
policy cycle
At the end of 2012, the European Parliament called for
“the launch of a ‘European fundamental rights policy
cycle’, detailing on a multiannual and yearly basis the
objectives to be achieved and the problems to be solved”.
Such a cycle should “foresee a framework for institu‑
tions and the FRA, as well as Member States, to work
together by avoiding overlaps, building on each others’
[...] reports, taking joint measures and organising joint
events with the participation of NGOs, citizens, national
parliaments, etc.”53 It would help ensure that national
experiences feed into EU‑level policy developments,
and that EU‑level developments are implemented on the
ground. It would further allow better coordination of the
policies of the European Parliament, the Council of the
European Union and the European Commission that are
relevant to fundamental rights, rendering their respec‑
tive roles and interventions more efficient. A policy cycle
would also, for example, assign specific objectives to the
different fundamental rights reports which the European
Parliament, the European Commission and FRA deliver
annually. Such a policy cycle would ensure that these
reports are presented in a timely manner to feed best
into the relevant processes. The development of an
EU action plan on fundamental rights would be an appro‑
priate framework for a fundamental rights cycle; such an
action plan could be inspired by some of the promising
practices existing at national level (see Tool 12).
7.Increasing coordination at EU level
through an annual consultation
meeting
Assigning ‘fundamental rights focal points’ in relevant
units of the European Parliament, Council of the EU and
European Commission administrations could support the
work and impact of the parliament’s Committee on Civil
Liberties, Justice and Home Affairs (LIBE), the Council
of the EU’s Working Party on Fundamental Rights,
Citizens Rights and Free Movement of Persons (FREMP)
and the relevant units in the European Commission’s
Directorate‑General Justice. Moreover, the European
Commission, the European Parliament and the Council
of the EU could benefit from periodic consultation with
relevant stakeholders and experts, bringing them
together with independent EU expert bodies, such as
FRA, the European Data Protection Supervisor (EDPS),
the European Ombudsman and representatives from
the Committee of the Regions, the European Economic
and Social Committee, the European network of national
equality bodies (Equinet), the European Network of
NHRIs and the European Network of Ombudsmen, as
well as EU‑level umbrella organisations representing
NGOs. Such an annual consultation meeting should
establish communication channels with national‑level
actors by, for instance, allowing prior online submis‑
sions to a dedicated web forum, which could structure
input and feedback in a systematic way. Such a regular
fundamental rights consultation meeting would ideally
take place before the European Commission finalises its
annual work programme, to guarantee that its results
feed into EU‑level legislative and policy planning. The
exercise should ensure that those attending have an
opportunity to provide feedback, including on the effec‑
tiveness of measures taken to safeguard fundamental
rights in the implementation of EU law. There should be
full transparency on whether and how such feedback
and input are taken into account.
8.
eveloping greater synergies between
D
the EU and the Council of Europe
In line with the “guidelines on the Relations between
the Council of Europe and the European Union” adopted
in 2005 by the Heads of State and Government of the
Member States of the Council of Europe, both inter‑
national organisations “should work towards joint
activities, when they add value to their respective
endeavours [… and] consult regularly at all appropriate
levels, including the political level, to make better use
of each other’s relevant expertise”.54 In addition to
the EU joining selected Council of Europe conventions,
the cooperation,55 which at technical level is already
active, fruitful and efficient,56 should be construed as
a two‑way process also covering the Council of Europe’s
political bodies. To increase the level of implementation
of Council of Europe standards, the EU could offer its
legal leverage, including the principles of supremacy
and direct effect. In this regard, the guidelines stress
that the “European Union shall strive to transpose
those aspects of Council of Europe Conventions within
its competence into European Union Law”.57 To make
this commitment more operational, it would be timely
to map existing EU legislation covering issues dealt
with in Council of Europe conventions and explore the
potential to complement the already existing acquis
with new EU legislation. Another concrete project of
close cooperation providing added value would be the
establishment of a shared European fundamental rights
information system that would increase the accessibility
and visibility of the standards, reports and analysis pro‑
duced by the Council of Europe (see Tool 18).
13
Fundamental rights: challenges and achievements in 2013
Tools at Member
State level
9.Recognising the
local dimension
of multilevel
protection of
rights
(Sub-)national
tools
Multilevel
protection
National
cooperation
National
parliaments
The subnational – that is,
regional and local – dimen‑
Action plans
sion of fundamental rights
is the one that is closest to
Awareness raising
the individual and hence
Independent
of the utmost importance.
monitoring
For the EU’s external rela‑
tions, the Council of the
Business
EU emphasised that local
authorities and their asso‑
ciations are “important
actors for change in reducing poverty and in pro‑
moting human rights and democracy [and] are key
to the enhancement of public sector accountability
to citizens, as well as promoting justice and core
principles of equality including the rights of women
and girls, ensuring transparency, and broad‑based
participation in the public sphere, building resilience
and reaching out to all citizens, including vulnerable
groups”.58 The same could be said for the situation
within the EU. FRA has underlined in various contexts
that it is important that different actors at the national
and the sub‑national level join their efforts to protect
and promote fundamental rights, which play an essen‑
tial role in this regard. The Committee of the Regions
adopted the Charter for multilevel governance in
Europe, reaffirming the importance of “coordinated
action by the European Union, the Member States
and regional and local authorities according to the
principles of subsidiarity, proportionality and partner‑
ship, taking the form of operational and institutional
cooperation in the drawing up and implementation of
the European Union’s policies”.59 This Charter empha‑
sises that multilevel governance helps governments
at different levels and in different states “to learn
from each other, experiment with innovative policy
solutions, share best practices and further develop
participatory democracy, bringing the European Union
closer to the citizens.” One of the objectives of multi‑
level governance as outlined in the Charter is precisely
“ensuring maximum fundamental rights protection at
all levels of governance”. Pilot research conducted by
FRA has identified a number of steps that can be taken
to enhance the implementation of fundamental rights
at local and regional levels. A joined‑up e‑toolkit for
local, regional and national public officials is available
at the FRA website.60
14
10.Increasing cooperation at
national level
Cooperation between different bodies contributes to
the effectiveness of the rights enshrined in the Charter.
The need is not so much to establish new mechanisms
and procedures as to develop further the available
resources, existing channels and forums for regular
exchanges and synergies between existing structures.61
Such increased levels of cooperation and coordination
are particularly important in countries organised in
a federal structure, in which the implementation of
fundamental rights falls under the competences of
different levels of authorities. Ombudsperson institu‑
tions, NHRIs, equality bodies, data protection authori‑
ties, national parliamentary committees dealing with
fundamental rights issues and local authorities that are
closest to the citizens could develop more concrete syn‑
ergies, for example by setting up formal and/or informal
fundamental rights networks (see also Tool 14).
11.Recognising the role of national
parliaments
EU directives are binding on the Member States about
the result to be achieved, but leave to national parlia‑
ments the choice of form and methods. This is of special
relevance where directives are likely to raise funda‑
mental rights concerns, as was the case, for instance,
with the Data Retention Directive. The Treaty of Lisbon
increased the relevance of national parliaments by
giving them a role in evaluating EU policy implemen‑
tation in the former third pillar and in the activities of
Eurojust and Europol.62 National parliaments also play
a special role at EU level in developing judicial coopera‑
tion in civil matters based on the principle of mutual
recognition of judgments.63 Against this background,
the national parliamentary committees dealing with
fundamental rights could possibly be brought together
in an EU‑wide network and gain more direct access to
the relevant EU developments.64
12.
Establishing national action plans
National action plans (NAPs) in the area of fundamental
rights protection have proved to be “useful tools for
clarifying the authorities’ responsibilities and for iden‑
tifying and addressing gaps in human rights protec‑
tion”.65 EU Member States such as Croatia, Finland, the
Netherlands, Spain, Sweden and the United Kingdom
(Scotland) have experience with such action plans
and a number of other Member States including
Austria and Greece are considering introducing NAPs.
The integration of international reporting obliga‑
tions into a NAP process can improve the coordina‑
tion of reporting and would render it more efficient
and cost‑effective. Such a combined approach could
also provide for the exchange of promising practices
between Member States. Moreover, NAPs and their
An EU internal strategic framework for fundamental rights: joining forces to achieve better results
evaluations could feed into the national positions in
the EU legislative process and hence link the different
layers of governance so that experiences and evidence
from the ground do not get lost but rather contribute
to an EU fundamental rights policy cycle (see Tool 6).
13.Increasing rights awareness
within the EU
Data collected by FRA, as well as Eurobarometer
­surveys, show that rights awareness tends to be very
low among both the general population and minority
groups. This is true of the Charter of Fundamental
Rights, in general,66 as well as with relevant legislation,
more specifically. In the case of equality legislation, for
example, almost 60 % of 23,500 immigrants and ethnic
minorities interviewed by FRA “were either unaware or
unsure about the existence of legislation covering […]
non‑discrimination on the basis of racial or ethnic
origin.”67 In relation to equality legislation, such low
rates of rights awareness are especially striking since
the relevant EU directives set out an explicit obligation
to make rights known.68 EU Member States, with the
support of the EU, should revamp their plans to better
target their awareness‑raising efforts.
14.Ensuring strong and independent
national‑level monitoring
To improve access to justice, the EU and its Member
States should keep non‑judicial and quasi‑judicial
bodies, as well as courts, in mind. All EU Member States
should appoint or establish NHRIs with a view to their
full accreditation (A‑status) under the so‑called Paris
Principles.69 Currently, only 11 of the 28 EU Member
States have fully compliant (A‑status) NHRIs and
an additional seven have NHRIs with B‑status. The
EU could establish or promote similar minimum stand‑
ards for the independence and effectiveness of other
bodies with a human rights remit, in particular those
required under EU law, such as equality bodies or data
protection authorities. Current EU legislation does
not provide clear standards, but recent CJEU jurispru‑
dence points to shortcomings in the independence of
data protection authorities.70
15.Creating a business environment
that respects and promotes
fundamental rights
EU law establishes duties between private parties
and regulates large areas of economic activity in
EU Member States. It is, therefore, important that
EU law recognise economic players’ special respon‑
sibilities with regard to fundamental rights as the
proposed Directive on non‑financial information dis‑
closure does,71 or that it acknowledge the importance
of social, labour and environmental concerns as the
legislative package for the modernisation of public
procurement does.72 The renewed EU strategy on
corporate social responsibility (CSR) identifies human
rights as a prominent aspect and requires enterprises
to have in place a process to integrate human rights
into their business operations in close collaboration
with their stakeholders.73 As part of its strategy, the
European Commission published an Introductory guide
to human rights for SMEs and human rights guidance
for three sectors: employment and recruitment agen‑
cies; information and communication technology; and
oil and gas. The guide and other guidance strengthen
the link between the EU’s CSR activities and the United
Nations Guiding Principles on Business and Human
Rights (UNGPs). EU Member States are encouraged to
develop national action plans to implement the UNGPs.
Where Member States decide to develop stand‑alone
action plans (see Section 10.5.3), they should make
sure that fundamental rights protection is prominently
integrated into these.
General tools
16.Involving
civil society
organisations
(CSOs) in policy
development
and assessment
General tools
Civil society
Trust
enhancement
Information
system
Indicators
Civil society is a main
stakeholder in the field of
Promising
practices
fundamental rights protec‑
tion. For the EU’s external
relations, it is recognised
that there is a need to
“develop country roadmaps for engagement with
CSOs, to improve the impact, predictability and vis‑
ibility of EU actions, ensuring consistency and synergy
throughout the various sectors”.74 Increasingly, the EU is
also involving civil society within the EU in contexts rel‑
evant to fundamental rights. The experience of FRA with
its Fundamental Rights Platform,75 for instance, inspired
the establishment of similar mechanisms at Frontex and
Easo. It appears the right time to make civil society input
possible on a wider scale, so that relevant NGOs are
heard when the impact of upcoming EU legislation is
assessed or where the implementation of existing legis‑
lation is reviewed. It would also be beneficial to provide
at national level regular channels and allow key civil
society actors to meet, exchange experiences and best
practices and formulate proposals for the improvement
and implementation of policies. Building on FRA’s experi‑
ence with its Fundamental Rights Platform, establishing
similar platforms at national level could be considered
where comparable tools do not yet exist. The shaping
of fundamental rights policies through participation of
various segments of society is one of the key concerns
of the Paris Principles for NHRIs.
15
Fundamental rights: challenges and achievements in 2013
17.Investing in transnational trust and
accessibility of fundamental rights
knowledge
Mutual trust can be enhanced by fostering transnational
contacts between practitioners. National judges and
other law enforcement agencies should be trained to
make certain that, in cooperating with their counter‑
parts from other EU Member States, they take into
account their duty under EU law to ensure that no deci‑
sion implementing EU law violates either substantive
standards or procedural rights that are embodied in
the EU Charter of Fundamental Rights or in the general
principles of EU law. To underpin such measures, the
EU should provide sufficient funds for the relevant
EU funding schemes. Training modules and a general
guide on the scope of the Charter might also be helpful
instruments.76 FRA has developed – in cooperation with
the Council of Europe and the European Court of Human
Rights (ECtHR) – a series of handbooks on CJEU and
ECtHR case law in targeted areas.77 Additional hand‑
books could be prepared to raise awareness among
legal practitioners about the scope of the Charter’s
safeguards. The European fundamental rights informa‑
tion system, proposed below, could also cover national
case law referring to the Charter as well as the role
of the Charter before non‑judicial bodies, thereby pro‑
viding evidence of how the Charter is, de facto, used
at national level.
18.Establishing a European fundamental
rights information system
The EU could also provide funds for the creation of
a European fundamental rights information system that
would form a hub, bringing together, in an accessible
manner, existing information from the United Nations
(UN) (mainly from the treaty bodies and special pro‑
cedures but also from other sources), the Council of
Europe (monitoring mechanisms and expert bodies),
the Organization for Security and Co‑operation in
Europe, the EU (data from the European Commission,
including Eurostat; FRA; Council working parties such as
Genval, the Working Party on General Matters including
Evaluation, or SchEval, the Working party on Schengen
Evaluation Mechanisms; the European Ombudsman;
etc.). Such a system would enhance transparency and
objectivity and increase awareness about European and
international standards, especially those of the Council
of Europe in the EU context. It would also allow prac‑
titioners to make an informed assessment of a given
country’s fundamental rights situation in a specific area.
19.Developing fundamental rights
indicators
To allow comparable assessments of fundamental
rights legislation, policies and their effects, it is
important to develop fundamental rights indicators.
16
The indicators should be organised in a systematic
framework, such as that applied by FRA, which is built
on that of the UN Office of the High Commissioner
for Human Rights. This ‘S‑P‑O’ (structure–process–
outcome) framework captures the situation on the
ground (outcome) and policy and structure levels.
Reliance on such an information system should not,
of course, be a substitute for a case‑by‑case assess‑
ment required in the practical application of mutual
recognition, since each individual case confronting
a national authority may present its own particulari‑
ties. A system of indicators would also only indicate
concerns, not replace a thorough contextualisation
and analysis in detail when indicators point to the
need for such. The need for developing reliable and
objective fundamental rights indicators is increas‑
ingly recognised. For instance, in the context of
monitoring and evaluating national strategies for
Roma integration, the Council recommended Member
States to make use of “any relevant core indicators or
methods of empirical social research or data collection
for monitoring and evaluating progress on a regular
basis, particularly at the local level, enabling efficient
reporting on the situation of Roma in the Member
States with the optional support of the European
Union Agency for Fundamental Rights”.78
20.Exchanging promising practices
across borders in a spirit of a shared
‘fundamental rights culture’
The EU and its Member States should approach the
revamping of their shared ‘fundamental rights culture’
by exchanging promising practices through more and
better‑structured multilateral and bilateral contacts.
Such a culture would perceive constructive critique as
a natural part of a shared desire to pool forces and expe‑
riences to raise the bar in the area of fundamental rights
protection. To give just one example: the European
e‑justice portal could become a suitable access point for
promising practices on how best to live up to EU stand‑
ards on justice.79 It could, for instance, offer a search
function for vetted practices. FRA initiated a modest
attempt in this regard with an online toolkit for public
officials, which includes examples under various head‑
ings of how to better join up fundamental rights. 80
Simple and practical tools are needed to ensure that
fundamental rights standards are upheld in practice.
The identification of such practical tools is again to be
based on an open exchange of experiences. To give an
example from the area of home affairs: Member States’
experts and the European Commission in collaboration
with FRA developed concrete practical guidance on
apprehension practices in the form of ‘dos and don’ts’
for immigration law enforcement officials.81 Practical
support to mainstream fundamental rights at the opera‑
tional level should be a priority for the allocation of
funds (for instance under the future Internal Security
Fund and the Asylum and Migration Fund; see Tool 5).
An EU internal strategic framework for fundamental rights: joining forces to achieve better results
Conclusion
The EU and its Member States have come a long
way in developing their community of values, even
if economic, social and political crises in several
Member States put these values under stress. Debates
on how to safeguard the EU’s founding values, as
enshrined in Article 2 of the TEU, gained in depth and
intensity in 2013. These values are shared between
the EU and its Member States and include respect
for human dignity, freedom, democracy, equality, the
rule of law, respect for human rights and the rights
of persons belonging to minorities, but also pluralism,
non‑discrimination, tolerance, justice, solidarity and
equality between women and men. The Charter of
Fundamental Rights largely covers these values and
further defines them.
Against the backdrop of major policy discussions and
developments that will occur in 2014, this focus sec‑
tion proposes a toolbox with which a new EU strategic
fundamental rights framework could be shaped. Since
such a framework would be ‘co‑owned’ by the EU and
its Member States, it could strengthen the commit‑
ment to fundamental rights at the EU, national and
sub‑national levels. Some of the tools proposed here
are relevant mainly at the EU level, others at the (sub-)
national level and still others at both levels. The list of
20 tools proposed is neither exhaustive nor definitive;
other tools could be added, discussed and used.
In any event, making use of such a toolbox could help
shape an EU internal framework for fundamental rights
that mirrors the existing external fundamental rights
framework. This would send a strong signal to the out‑
side world, showing that the EU and its Member States
are prepared to ‘walk their talk’ and thus increase the
consistency between the Union’s internal and external
behaviour. The challenge now is to get all the actors
concerned to make use of these tools to achieve the
expected result: promoting fundamental rights to safe‑
guard the rule of law.
Strategic framework toolbox
EU-level tools
(Sub-)national tools
General tools
Ex ante
assessments
Multilevel
protection
Civil
society
Legislative
mainstreaming
National
cooperation
Trust
enhancement
Implementation
guidelines
National
parliaments
Information
system
Peer evaluation
Action plans
Indicators
Rights-proofed
EU funds
Awareness
raising
Promising
practices
Policy cycle
Independent monitoring
Annual consultation
Business
Cooperation with
­Council of Europe
17
Fundamental rights: challenges and achievements in 2013
Endnotes
http://www.biicl.org/files/6758_main_report_15_11_2013_
commission_consultation.pdf; Centre for European Policy
Studies (2013), The Triangular Relationship between
Fundamental Rights, Democracy and the Rule of Law in the
EU. Towards an EU Copenhagen Mechanism, http://www.
ceps.be/ceps/dld/8617/pdf.
All hyperlinks accessed on 30 April 2014.
1
FRA (2012), Bringing rights to life: The fundamental rights
landscape of the European Union, Luxembourg, Publications
Office of the European Union (Publications Office),
http://fra.europa.eu/en/publication/2012/bringing-rightslife-fundamental-rights-landscape-european-union.
2
FRA (2013), The European Union as a Community of
values: Safeguarding fundamental rights in times of crisis,
Luxembourg, Publications Office, http://fra.europa.eu/
en/publication/2013/european-union-community-valuessafeguarding-fundamental-rights-times-crisis.
3
European Commission (2014), A new EU framework
to strengthen the rule of law, COM(2014) 158 final,
11 March 2014, http://ec.europa.eu/justice/
effective-justice/files/com_2014_158_en.pdf.
4
See FRA’s contribution to the consultation processes leading
up to the new document: FRA (2013), Fundamental rights in
the future of the European Union’s Justice and Home Affairs,
http://fra.europa.eu/sites/default/files/fra_submission_
on_the_future_of_eu_ justice.pdf. See also FRA (2009),
The Stockholm Programme: A chance to put fundamental
rights protection right in the centre of the European Agenda,
http://fra.europa.eu/sites/default/files/fra_uploads/538FRA-comments-on-Stockholm-Programme.pdf.
5
See Art. 10 of Protocol No. 36 on transitional provisions,
OJ C 326, 26 October 2012.
6
Council of the European Union (2012), EU strategic
framework and action plan on human rights and democracy,
adopted in June 2012, www.consilium.europa.eu/uedocs/
cms_data/docs/pressdata/EN/foraff/131181.pdf.
7
8
9
10
11
18
Reding, V. (2013), ‘The EU and the rule of law: What next?’,
speech given at CEPS on 4 September 2013, http://europa.
eu/rapid/press-release_SPEECH-13-677_de.htm.
See e.g. European Parliament, Resolution of
3 July 2013 on the situation of fundamental rights:
Standards and practices in Hungary (pursuant to the
European Parliament resolution of 16 February 2012),
http://www.europarl.europa.eu/sides/getDoc.
do?type=TA&language=EN&reference=P7-TA-2013-315
See, for example, the letter sent by four EU Member
State foreign affairs ministers to the President of the
Commission, highlighting the need for a new and more
effective mechanism to safeguard fundamental values in
Member States, see Council of the European Union (2013),
Council conclusions on fundamental rights and rule of law
and on the Commission 2012 Report on the Application of
the Charter of Fundamental Rights of the European Union,
Justice and Home Affairs Council meeting, 6 and 7 June
2013, p. 2, http://www.consilium.europa.eu/uedocs/cms_
data/docs/pressdata/en/jha/137404.pdf, and Council of the
European Union (2013), ‘3235th Council meeting General
Affairs’, Press release, 22 April 2013, p. 8, http://www.
consilium.europa.eu/uedocs/cms_Data/docs/pressdata/EN/
genaff/136915.pdf
See e.g. Closa, C., Kochenov, D. and Weiler, J. H. H.
(2014), ‘Reinforcing rule of law oversight in the
European Union’, RSCAS 2014/25, http://cadmus.eui.eu/
bitstream/handle/1814/30117/RSCAS_2014_25_FINAL.
pdf?sequence=3.
See e.g. Advisory Council on International Affairs (2014),
The rule of law, safeguard for European Citizens and
foundation for European Cooperation, http://www.aivadvies.nl/ContentSuite/upload/aiv/doc/webversie_AIV87_
ENG_2(1).pdf; Bingham Centre for the Rule of Law (2013),
Safeguarding the Rule of Law, Democracy and Fundamental
Rights: A Monitoring Model for the European Union,
12
Joint NGO statement on the forthcoming European
Commission Communication on safeguarding the rule
of law in the EU, 10 March 2014, http://www.hrdn.eu/
hrdn/eu-internal-human-rights-policy.php?menu_
selected=124&sub_menu_selected=1020&language=US
13
For an overview, see, for example, Democracy Reporting
International (2013), ‘Proposals for new tools to protect
EU values: An overview’, Briefing Paper 43, http://www.
democracy-reporting.org/files/dri-bp-guiding_principles_
for_new_tools_to_protect_eu_values_2013-11-11-3_rms.
pdf; Toggenburg, G. N. (2013), ‘Was soll die EU können
dürfen, um die EU‑Verfassungswerte und die
Rechtsstaatlichkeit der Mitgliedstaaten zu schützen?’, ÖGfE
Policy Brief 10, 2013, http://www.oegfe.at/cms/uploads/
media/OEGfE_Policy_Brief-2013.10.pdf.
14
Council of the European Union (2013), Council conclusions
on fundamental rights and rule of law and on the
Commission 2012 Report on the Application of the Charter
of Fundamental Rights of the European Union, Brussels, p. 5,
point 11.
15
European Parliament, Resolution of 3 July 2013 on
the situation of fundamental rights: Standards and
practices in Hungary (pursuant to the European
Parliament resolution of 16 February 2012), para. 64,
http://www.europarl.europa.eu/sides/getDoc.
do?type=TA&language=EN&reference=P7-TA-2013-315.
16
Ibid., para. 80.
17
Ibid., para. 70.
18
Ibid., para. 79.
19
European Parliament, Resolution as of 27 January 2014
on the situation of fundamental rights in the European
Union, para. 10, http://www.europarl.europa.eu/
sides/getDoc.do?type=REPORT&reference=A7-20140051&language=EN&mode=XML.
20See ­discretionary hyphenhttp://ec.europa.eu/justice/
events/assises-justice-2013/index_en.htm.
21
COM(2014) 144 final as of 11 March 2014, ­discretionary
hyphenhttp://ec.europa.eu/justice/effective-justice/files/
com_2014_144_en.pdf.
22COM(2014) 158.
23
Ibid., p. 3.
24 Ibid., p. 4.
25
Ibid., p. 6.
26 Ibid., p. 7.
27
European Commission (2014), EU anti‑corruption report,
COM(2014) 38 final as of 3 February 2014, http://ec.europa.
eu/dgs/home-affairs/e-library/documents/policies/
organized-crime-and-human-trafficking/corruption/docs/
acr_2014_en.pdf.
28 See COM(2013) 160 final as of 27 March 2013; and
COM(2014) 155 final as of 11 March 2013.
29 Compare von Bogdandy, A. and Ioannidis, M. (2014),
‘Systemic deficiency in the rule of law: What it is, what
has been done, what can be done’, Common Market Law
Review, Vol. 51,No.1,pp. 59–96, 76.
30 Charter of Fundamental Rights of the European Union,
Art. 51 (1).
31
Treaty on European Union, OJ C 83, 30 March 2010, Art. 3,
p. 13.
An EU internal strategic framework for fundamental rights: joining forces to achieve better results
32
See e.g. Eurobarometer 69, Values of Europeans, p. 21,
http://ec.europa.eu/public_opinion/archives/eb/eb69/
eb69_values_en.pdf.
33
See Council Framework Decision of 13 June 2002 on the
European arrest warrant and the surrender procedures
between Member States, in OJ L 190, 18 July 2002.
34 CJEU, Joined cases C-411/10 and C-493/10, N. S. v. Secretary
of State for the Home Department and M. E. and Others v.
Refugee Applications Commissioner & Minister for Justice,
Equality and Law Reform, 21 December 2011, para. 105.
35
See FRA (2013), Joining up fundamental rights: Toolkit
for local, regional and national public officials, http://fra.
europa.eu/en/joinedup/home; and FRA (2012), Bringing
rights to life: The fundamental rights landscape of the
European Union, Luxembourg, Publications Office, http://
fra.europa.eu/en/publication/2012/bringing-rights-lifefundamental-rights-landscape-european-union.
36 See CJEU, Joined cases C-293/12 and C-594/12, Digital Rights
Ireland Ltd v. The Minister for Communications, Marine and
Natural Resources, The Minister for Justice, Equality and Law
Reform, The Commissioner of the Garda Síochána Ireland
and The Attorney General and Kärtner Landesregierung,
Seitlinger and Others, 8 April 2014.
37
50 Compare consideration No. 24 of COM(2011) 751 final,
consideration No. 4 of COM(2011) 753 final or consideration
No. 3 of COM(2011) 750 final.
51
See Regulation (EU) No. 1303/2013, OJ L 347 as of
20 December 2013, pp. 320–469.
52
The Convention on the Rights of Persons with Disabilities
(CRPD), Article 4 (1) (c), requires parties to take into account
the protection and promotion of rights “in all policies and
programmes”.
53
European Parliament (2012), resolution of 12 December 2012
on the situation of fundamental rights in the European
Union, para. 20, http://www.europarl.europa.eu/sides/
getDoc.do?type=TA&reference=P7-TA-2012-0500&language
=EN&ring=A7-2012-0383.
54 Council of Europe, Committee of Ministers (2005), Action
Plan, CM(2005) 80 final, 17 May 2005, www.coe.int/t/dcr/
summit/20050517_plan_action_en.asp.
55
COM(2010) 573 final, 19 October 2010.
38 Council of the European Union (2011), Guidelines on
methodological steps to be taken to check fundamental
rights compatibility in the Council’s preparatory bodies,
Council Doc 10140/11 18 May 2011, http://register.consilium.
europa.eu/doc/srv?l=EN&f=ST%2010140%202011%20INIT.
39 See: rule 36 on “respect for the Charter of Fundamental
Rights of the European Union”.
40 Compare also de Witte, B., et al (2010), Legislating
after Lisbon, p. 29, http://www.eui.eu/Projects/EUDO/
Documents/EUDO-LegislatingafterLisbon(SD).pdf.
41
49 FRA (2013), Apprehension of migrants in an irregular
situation: Fundamental rights considerations, http://fra.
europa.eu/sites/default/files/fra-2013-apprehensionmigrants-irregular-situation_en.pdf.
European Parliament (2014), Resolution of 13 March 2014 on
Employment and social aspects of the role and operations
of the Troika (ECB, Commission and IMF) with regard to
euro area programme countries, 2014/2007(INI), www.
europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//
TEXT+TA+P7-TA-2014-0240+0+DOC+XML+V0//EN.
42 de Schutter, O. (n.d.), The new architecture of fundamental
rights policy in the EU, http://cms.horus.be/files/99907/
MediaArchive/Presentation_110215_ODeSchutter_2FRAND.
pdf.
43 Compare in this regard, for instance, European Commission
(2010), European Disability Strategy, 2010-2020,
COM(2010) 636 final, 15 November 2010.
44 For an overview, see FRA (2013), Fundamental rights:
Challenges and achievements in 2012, Annual Report,
Luxembourg, Publications Office, Chapter 1, http://fra.
europa.eu/sites/default/files/fra-2013-safeguardingfundamental-rights-in-crisis_en.pdf. Some of the cases
listed as pending have since been decided.
45 European Commission (2014), Communication on guidance
for application of Directive 2003/86/EC on the right to
family reunification, COM(2014)210 final as of 3 April 2014.
46 European Commission (2013), Ares (2013)3763804,
19 December 2013, http://ec.europa.eu/justice/criminal/
files/victims/guidance_victims_rights_directive_en.pdf.
47 European Commission (2009), COM(2009) 313 final as of
2 July 2009.
48 FRA (2014), Twelve operational fundamental rights
considerations for law enforcement when processing
Passenger Name Record (PNR) data, http://fra.europa.
eu/sites/default/files/fra-2014-fundamental-rightsconsiderations-pnr-data-en.pdf.
For the priorities for 2014–2015, see Council
document 16444/13, 19 November 2013, http://register.
consilium.europa.eu/doc/srv?l=EN&t=PDF&gc=true&sc=fals
e&f=ST%2016444%202013%20INIT.
56 See, for example, the overview of the cooperation
between the European Union Agency for Fundamental
Rights and the Council of Europe, July 2012 to
June 2013, http://fra.europa.eu/sites/default/files/
fra-coe-cooperation-overview-2012-2013_en.pdf.
57
Guideline No. 5 (Appendix 1 of the Action Plan).
58 Council Conclusions of 22 July 2013 on Local Authorities in
Development, Council document 12459/13, 22 July 2013,
http://register.consilium.europa.eu/doc/srv?l=EN&t=PDF&g
c=true&sc=false&f=ST%2012459%202013%20INIT.
59 Committee of the Regions (2014), Resolution on the
Charter for multilevel governance in Europe, 3 April 2014,
http://www.cor.europa.eu/en/activities/governance/
Documents/mlg-charter/en.pdf.
60 http://fra.europa.eu/en/joinedup/home.
61
FRA (2010), National human rights institutions in the
EU Member States: Strengthening the fundamental
rights architecture in the EU I, Luxembourg, Publications
Office, http://fra.europa.eu/sites/default/files/
fra_uploads/816-NHRI_en.pdf.
62 Arts. 70, 85 and 88 of the TFEU.
63
Arts. 81 of the TFEU.
64 A comparable structure exists for parliamentary
committees dealing with EU integration (the Conference of
Parliamentary Committees for Union Affairs of Parliaments
of the EU).
65 Council of Europe, Commissioner for Human Rights (2014),
background paper on national action plans.
66 For proposals to increase awareness about the Charter,
see FRA (2012), Bringing the Charter to life: Opportunities
and challenges of putting the EU Charter of Fundamental
Rights into practice, http://fra.europa.eu/sites/default/files/
copenhagen-seminar-report.pdf.
67 FRA (2010), EU‑MIDIS, Data in Focus 3: Rights awareness
and equality bodies – strengthening the fundamental
rights architecture in the EU III, Luxembourg, Publications
Office, p. 3, http://fra.europa.eu/sites/default/files/
fra_uploads/854-EU-MIDIS_RIGHTS_AWARENESS_EN.PDF.
68 See Art. 10 of Council Directive 2000/43/EC implementing
the principle of equal treatment between persons
19
Fundamental rights: challenges and achievements in 2013
irrespective of racial and ethnic origin, OJ 2000 L 180 (Racial
Equality Directive) or Art. 12 of Council Directive 2000/78/
EC establishing a general framework for equal treatment in
employment and occupation, OJ 2000 L 303 (Employment
Equality Directive).
69 UN, General Assembly (1993), The principles relating to the
status and functioning of national institutions for protection
and promotion of human rights (The Paris Principles),
Resolution A/RES/48/134, 20 December 1993. See also FRA
(2012), Handbook on the establishment and accreditation
of national human rights institutions in the European Union,
Luxembourg, Publications Office.
70CJEU, Commission v. Germany, C-518/07, 9 March 2010;
and Commission v. Austria, C-614/10, 16 October 2012. See
also the Advocate General’s Conclusions, Commission v.
Hungary, C-288/12, 10 December 2013.
71
European Commission (2013), COM(2013)207 final.
72
The package was proposed in late 2011 and adopted in
early 2014, for information see: http://ec.europa.eu/
internal_market/publicprocurement/modernising_rules/
reform_proposals/index_en.htm.
73
European Commission (2011), Communication from the
Commission to the European Parliament, the Council,
the European Economic and Social Committee and the
Committee of the Regions: A renewed EU strategy 2011–14
for corporate social responsibility, COM(2011) 681 final,
25 October 2011, p. 14, Section 4.8.2, http://eur-lex.europa.
eu/LexUriServ/LexUriServ.do?uri=COM:2011:0681:FIN:EN:
PDF.
74 European Commission (2012), The roots of democracy
and sustainable development: Europe’s engagement with
civil society in external relations, COM(2012) 492 final
as of 12 September 2012, p. 9, http://eur-lex.europa.eu/
LexUriServ/LexUriServ.do?uri=COM:2012:0492:FIN:EN:PDF.
20
75
For more information, see the FRA website ­(http://fra.
europa.eu/en/cooperation/civil-society) and Kjaerum, M.
and Toggenburg, G. N. (2012), ‘The Fundamental Rights
Agency and civil society: Reminding the gardeners of their
plants’ roots’, European Diversity and Autonomy Papers,
EDAP 02/2012, available at: http://webfolder.eurac.edu/
EURAC/Publications/edap/2012_edap02.pdf.
76 FRA (2012), ‘Bringing the Charter to life: Opportunities
and challenges of putting the EU Charter of Fundamental
Rights into practice’, Copenhagen Seminar Report, Danish
Presidency of the Council of the European Union and
EU Agency for Fundamental Rights, http://fra.europa.eu/
sites/default/files/copenhagen-seminar-report.pdf.
77 See FRA (2013), Handbook on European law relating to
asylum, borders and immigration, Luxembourg, Publications
Office, http://fra.europa.eu/en/publication/2013/handbookeuropean-law-relating-asylum-borders-and-immigration.
78 Council of the European Union (2013), Council
recommendation on effective Roma integration measures
in the member states, http://www.consilium.europa.eu/
uedocs/cms_data/docs/pressdata/en/lsa/139979.pdf.
79 Available at: ­https://e-justice.europa.eu/home.do?action=
home&plang=en.
80 Available at: http://fra.europa.eu/en/joinedup/home.
See examples at, for instance: http://fra.europa.eu/en/
joinedup/tools/communicating-fundamental-rights/
engaging-public/champions.
81
FRA (2014), Twelve operational fundamental rights
considerations for law enforcement when processing
passenger name record (PNR) data, http://fra.europa.
eu/sites/default/files/fra-2014-fundamental-rightsconsiderations-pnr-data-en.pdf.
The EU Charter of Fundamental
Rights before national courts and
non‑judicial human rights bodies
The Charter of Fundamental Rights of the European Union (Charter), the EU’s human rights bill, expresses the
values at the heart of the Union which all Member States have pledged to uphold. Although a new instrument, it
is gaining in use and prominence. As the Charter approaches its fifth anniversary as a binding document in
December 2014, it is timely to explore its impact. Much is already known about how the Charter works at the
level of the EU. Indeed, the Charter primarily addresses the EU, including its institutions and bodies. However,
there is more to the Charter, namely its use at national level. The Charter binds the EU Member States and
thereby all its authorities at various levels of governance, including regions or municipalities when they are
acting in the scope of EU law. One indicator of how the Charter penetrates national legal systems is its use in
national court rooms. For the first time, the FRA Annual report looks at national court judgments and the use of
the Charter by national bodies with a human rights remit such as national human rights institutions, equality
bodies and Ombudsperson institutions, thereby throwing light on a lesser‑known side of the Charter’s life.
The Charter of Fundamental Rights of the European
Union (Charter) is cited across EU legislative and admin‑
istrative acts, European Parliament petitions and
European Ombudsman cases. Similarly, it is carving an
ever deeper imprint into jurisprudence, with a steady
rise in mentions of its provisions by the Court of Justice
of the European Union (CJEU). The number of decisions
in which the CJEU (in all its formations: Court of Justice,
General Court and Civil Service Tribunal) quotes the
Charter in its reasoning, for example, more than quad‑
rupled in three years to 114 decisions in 2013
from 27 in 2010 (some 7 % of the total number of deci‑
sions in 2013 as opposed to 2 % in 2010, see Figure 0.1),1
whereas the general number of CJEU decisions in the
same time increased only from 1,152 in 2010 to
1,587 in 2013 – a rise in three years of almost 38 %. In
2013 alone, the CJEU referenced the Charter more often
than in the nine years from the Charter’s proclamation
in late 2000 to the end of 2009, when it became legally
binding with the entry into force of the Lisbon Treaty.
The CJEU’s increasing number of citations makes the
Charter relevant in practice, as demonstrated by the
greater interest from national courts which can refer
cases to the CJEU. Such requests for preliminary rulings
by national courts invoking the Charter increased from
18 in 2010 to 27 in 20112 and reached 41 in 2012. In 2013,
9 % of the cases that national courts referred to the
CJEU (41 of them) cited the Charter.3 Figure 0.2 shows
the rise in such references over the years and the
Charter title that the courts referenced.
Figure 0.1: Number of decisions in which the CJEU
references the Charter in
its reasoning, 2010–2013
120
114
100
87
80
60
47
40
27
20
0
2010
2011
2012
2013
Source: FRA 2013, based on CJEU data
21
Fundamental rights: challenges and achievements in 2013
Figure 0.2: Total number of requests for preliminary rulings in which national courts mention the Charter,
by Charter title, 2010–2013
45
40
35
30
25
20
15
10
5
0
2010
I. Dignity
2011
II. Freedoms
2012
III. Equality
IV. Solidarity
2013
V. Citizens' rights
VI. Justice
Note: This chart excludes cases concerned with Title VII (general provisions) of the Charter.
Source: European Commission (2014), 2013 report on the application of the EU Charter of Fundamental Rights, p. 8
Figure 0.3: Number of requests for preliminary rulings in which national courts mention the Charter,
by EU Member State, 2010–2013
25
20
15
10
5
0
AT BE BG CY CZ DE DK EL EE ES
FI FR HR HU IE
2010
2011
IT
LT LV LU MT NL PL PT RO SE
2012
SI SK UK
2013
Note: Croatia is included as from the date it joined the EU, 1 July 2013.
Source: Data available with the European Commission
Figure 0.4: Requests for preliminary rulings: total number and number referring to the Charter,
by EU Member State, 2013
120
97
100
80
62
60
46
40
26
20
6
0
26
24
19
10
1
2
3
7
2
6
5
32
3
4
AT BE BG CY CZ DE DK EL EE ES
1
20
3
2
4
FI FR HR HU IE
9
IT
10
5
5
17
14
12
1
14
12
1
1
1
43
LT LV LU MT NL PL PT RO SE SI SK UK
32 % 4 % 20 % 0 % 0 % 2 % 0 % 0 % 67 % 12 % 25 % 13 % 0 % 10 % 0 % 15 % 0 % 0 % 0 % 0 % 11 % 8 % 7 % 6 % 0 % 0 % 75 % 0 %
Total number
Number referring to fundamental rights
Note: The percentage figure below the country code corresponds to the share of requests for preliminary rulings referring to
the EU Charter of Fundamental Rights.
Source: FRA 2014; CJEU (2014), Annual Report 2013
22
The EU Charter of Fundamental Rights before national courts and non‑judicial human rights bodies
When looking at the EU Member States’ courts and how
often they refer to the Charter when approaching the
CJEU for a preliminary ruling, no overall trend appears.
As shown in Figure 0.3, Austria shows a definite rise in
Charter‑related requests, but most Member States do
not display such a clear‑cut trend (e.g. Belgium, Bulgaria,
Ireland and Italy). Some Member States’ courts have
yet to make a single reference to the Charter in their
requests for preliminary rulings by the CJEU since the
Charter entered into force. Besides Croatia, which joined
the EU only in July 2013, this applies to Cyprus, Denmark,
Hungary and Slovenia.
However, national courts also use the Charter beyond
requests to the CJEU for preliminary rulings. Indeed, only
a fraction of cases in which national courts refer to the
Charter reach the CJEU. The Charter is regularly used in
national courtrooms. Nevertheless, so far the attention
has been focused on the EU institutions’ Charter use, for
instance before the CJEU.4 Less light has been thrown
on how national courts use the Charter.5
Given that EU law is mainly implemented at national level
through national institutions, the national judiciary’s use
of the Charter is an important facet to examine. Every
judge at national level serves two masters, the national
and EU systems, and has hence to apply – where appro‑
priate – EU law, including the Charter. In fact, national
courts began using the Charter before it became legally
binding. In some of these cases, they even used the
Charter to prevent the application of contradictory
national norms.6 It thus appears timely and important
to take up the Council of the European Union’s recent
call and follow the Charter’s use in national courtrooms.
“The Council considers it important to follow developments
in evolving case‑law and notes the Fundamental Rights
Agency’s work in publishing regular updates in this regard.”
Council of the European Union (2013), Council conclusions on
­fundamental rights and rule of law and on the Commission 2012
­Report on the Application of the Charter of Fundamental Rights
of the ­European Union, Justice and Home Affairs Council meeting
­Luxembourg, 6 and 7 June 2013, Point 2, available at: www.consilium.
europa.eu/uedocs/cms_Data/docs/pressdata/en/jha/137404.pdf
To examine national developments, FRA asked its
Franet contractors to provide key information across
the 28 EU Member States on national case law refer‑
ring to the Charter. More specifically, FRA requested
information on up to five national judgments, preferably
from the highest courts, including constitutional courts,
supreme courts and the highest administrative courts
which used the Charter in their reasoning.
For Belgium, Bulgaria, Slovenia and Sweden, Franet
experts did not identify any judgments satisfying this
request. For the other Member States, FRA received
information on 70 judgments altogether, 50 of which
were delivered by a high court. Since the national
experts were asked to identify the five most relevant
judgments and in many Member States fewer than
five were found, this set of judgments probably rep‑
resents a good proportion of the most relevant 2013
Charter references made before the 28 EU Member
States’ national courts. Nevertheless, the sample is still
limited, since references to the Charter before lower
courts will often not be traceable because these sorts
of decisions are not public and courts’ registers do not
mark Charter references.
Very often, the national court only reports that ­parties
referred to the Charter but does not picking up the
Charter in its own legal arguments. In Belgium, for
instance, the Constitutional Court in 2013 handed down
judgments referring to Article 47, Article 18 and Articles
20, 21, 26 and 34 of the Charter without relying on these
provisions in its own reasoning.7 The 70 judgments that
were included in the sample did not contain such refer‑
ences to the Charter.
The Charter’s ‘national life’ also unfolds outside the
courtroom before other bodies with a human rights
remit, such as national human rights institutions
(NHRIs), equality bodies and Ombudsperson institu‑
tions. Therefore, this chapter offers some additional
information on the use of the Charter outside court‑
rooms in the Section on ‘How non‑judicial bodies at
national level use the Charter’.
How national courts deploy
the Charter
The most relevant policy fields
Of the relevant judgments that national courts handed
down in 2013, the most prevalent substantive areas
were on asylum and immigration. Out of the 70 judg‑
ments analysed for the year 2013, the largest group,
namely 14 judgments, concerned these two fields.
Other prominent areas for the year were tax law
(nine judgments) and consumer protection (six judg‑
ments). There were also four judgments in each of the
following fields: employment, social security, expro‑
priation/compensation and administrative procedures.
These findings are similar to those of 2012, when FRA
looked into 240 national judgments by 15 EU Member
States’ courts and found that half dealt with asylum
and immigration issues. 8 Asylum and immigration
unsurprisingly comprise the lion’s share of rulings,
because they are defined principally by EU secondary
law and are highly sensitive from a fundamental rights
point of view.
The patterns of reference to the Charter differ between
national and CJEU judgments. For the CJEU, 114 decisions
referred to the Charter in 2013;9 in contrast to national
courts, these judgments dealt principally with the EU
23
Fundamental rights: challenges and achievements in 2013
Figure 0.5: Charter‑related judgments, national or CJEU, by policy area (%)
National judgments
CJEU judgments
21 %
21 %
39 %
57 %
13 %
21 %
9%
9%
10 %
Asylum and immigration
Tax law
Common Foreign and Security
Consumer protection
Other areas
Employment
Competition
Asylum and immigration
Other areas
Source: FRA, 2013, own data
Common Foreign and Security Policy, as well as with
competition policies. The EU plays a strong role in both
these fields, with competition policy a prime example
of an area in which the EU is also entrusted with
implementation. Other very prominent areas – again,
similar to the situation before national courts – included
employment (particularly employment at EU institu‑
tions), and asylum and immigration.
Charter rights that receive most
prominent use
The right to an effective remedy and a fair trial
(Article 47) was the Charter right most frequently
referred to in national courtrooms. Indeed, this right
and the right to good administration (Article 41)
together accounted for almost a quarter (23 %) of all the
national references analysed. The Charter’s horizontal
provisions on its application and scope (Articles 51
and 52) represent almost another quarter (22 %) of the
national judgments. The right to privacy and family life
(Article 7), the rights of the child (Article 24) and the
right to non‑discrimination (Article 21) were referred to
in one in five of the cases (19 %) analysed. Additionally,
25 of the remaining Charter articles received one
or two references.
In the national judgments analysed, 22 Charter ­articles
received no mention at all. These concern some rights
not easily compromised by EU law, including the right
to life (Article 2), the right to the integrity of the person
(Article 3) and the prohibition of slavery and forced
labour (Article 5). Others left unmentioned concern
rights that are especially relevant to policy fields where
the EU’s competence is limited, such as the right to
marry and found a family (Article 9), the freedom of
arts and science (Article 13) or the right to education
(Article 14). It is also not surprising that national courts
24
failed to refer to rights that address the EU level, such
as the right to access to documents (Article 42), related
to the European Ombudsman (Article 43), the right to
petition (Article 44), or diplomatic and consular pro‑
tection (Article 46). An easy explanation does not,
however, suggest itself for the entire picture. Of the
12 rights listed under the Charter’s ‘solidarity’ title, for
instance, the national judgments analysed made no
mention of eight.
When comparing the 2013 national court decisions
analysed with the 114 CJEU decisions that refer to the
Charter, both differences and similarities emerge. The
right to an effective remedy and a fair trial is used most
often, at both the EU and national levels. The right to
good administration comes second, again in both CJEU
and national court references. Finally, both the CJEU
and national courts give the right to non‑discrimination
similar importance. However, these 2013 judgments
also reveal differences. Close to 10 % of the national
judgments analysed referred to the rights of the child,
but the CJEU share is much smaller: it mentioned
Article 24 in just three of its 114 Charter‑related deci‑
sions. The right to private and family life (Article 7)
also features more prominently in the national cases
analysed than in the CJEU’s 2013 decisions. In contrast,
the CJEU refers more often to the right to property
(Article 17) and the freedom to conduct a business
(Article 16). With regard to the horizontal provisions in
Title VII of the Charter, national courts often referred
to the Charter’s field of application (Article 51). The
CJEU invoked this article less often, preferring instead
to refer to the scope and interpretation of rights and
principles (Article 52). This reflects the nature of the
articles. Article 51 incorporates EU Member States as
Charter addressees, whereas the Charter’s interpre‑
tation (Article 52) falls as a core task to the CJEU as
interpreter of EU primary law.
The EU Charter of Fundamental Rights before national courts and non‑judicial human rights bodies
Figure 0.6:References to Charter articles in national court and CJEU decisions, by article (% of total Charter
references in decisions analysed)
35 %
30 %
25 %
20 %
15 %
10 %
5%
7
-P
ri
fa vat
m e
ily an
co 16
lif d
nd e
uc Fr
t a ee
bu dom
sin t
es o
17
s
-P
ro
pe
rty
be 20
fo - e
re q
th ua
e lit
la y
w
di
sc 21
rim in No
a n
24 tion -R
th ight
e s
ch of
ild
ad
m 41
in 47
ist G
ra oo
-E
tio d
48
ffe
n
-P
ct
i
re
an ve
su
d rem
m
fa e
an pti
ir d
tri y
d on
rig o
al
f
ht in
of no
de ce
fe nc
nc e
e
51
ap - F
pl iel
ica d
tio of
n
52
-S
of c
rig op
ht e
s
Ot
he
rr
ig
ht
s
0%
Member States
CJEU
Note: The category ‘other rights’ contains different rights for national courts and the CJEU.
Source: FRA, 2014
The reach of the Charter and the scope
of EU law
not appear to make any difference to the outcome
of these cases.
National procedural laws differ substantially on
the degree to which the arguments put forward
by the parties determine the scope of the proceed‑
ings. Consequently, whether or not a Court can raise
a ‘Charter argument’ independently (ex officio) dif‑
fers from state to state.10 In 2013, out of the 70 cases
examined, 31 included an earlier invocation by parties.
In a further 33 cases, the adjudicating Court raised the
Charter as a legal argument in its reasoning without
the parties having done so.11 Thus, the Charter enters
national courtrooms not only by the initiative of the
parties but also through the national courts, which
themselves often invoke the Charter as a legal source.
The Charter was invoked, as were other international
documents, in, for instance, a Czech Republic case
concerning the violation of human dignity. A woman
who was chained to a toilet for four hours in a psychi‑
atric hospital died, allegedly as a result of insufficient
supervision.12 In other cases, the Charter functioned as
an “additional confirmation” of the rights guaranteed
by the European Convention of Human Rights (ECHR).13
In cases appearing to fall outside the scope of EU law,
the Charter often served to strengthen rights guaran‑
teed by national constitutional law. In a judgment from
Portugal, for instance, Article 53 of the Constitution,
laying down the right to job security, is described as
central element in the constitutional architecture
whose “extreme importance […] is […] consolidated by
its condition as a principle of European public law, as
stated in […] Article 30 of the EU Charter of Fundamental
Rights”.14 Sometimes national courts used the Charter
to interpret national law. In an Italian case concerning
gender balance in an executive body of a municipality,
the court referred to Charter Articles 21 and 23, con‑
cluding that “a normative corpus exists and it should
become the tool for interpreting the domestic legal
order”.15 Another Italian court judgment, while recog‑
nising that the Charter did not apply to the case at hand,
seemed to say that this would not necessarily limit its
interpretative value. The Italian court underlined that
Since the Charter addresses the EU Member States
“only when they are implementing Union law”
(Article 51), one critical argument for a national court
to refer to the Charter would seem to be that EU law
applies to the case at hand. Although this holds true
in part for courts, parties do not necessarily appear to
check whether or not EU law applies. However, there
are also national judgments in which the Court uses
the Charter in its reasoning in cases that do not dis‑
play any link with EU law. In most of these cases, the
Charter was referred to in a rather superficial manner;
the court did not explicitly state whether or not the
Charter directly applies. In any event, the Charter did
25
Fundamental rights: challenges and achievements in 2013
the Charter was an expression of common principles of
European legal systems and therefore had – as a source
of interpretation – a function within the national legal
system even outside the scope of EU law.16
In contrast, however, other national courts have denied
the Charter’s interpretive function precisely because
they recognise the case as falling outside the scope
of EU law. In a judgment from Portugal, for instance,
the court recalls that the Charter applies to the
EU Member States only when they are implementing
EU law. Accordingly, the constitutional court found that
the interpretation of what is the right to a fair trial as
enshrined in the Portuguese Constitution is not “directly
bound up in the hermeneutical assessment emitted by
the Charter”. Rather, what should apply is an “autono‑
mous interpretation, founded within the precinct of
internal constitutional rule‑making, even”, the court
continues, “if it is unable to disregard the enlightening
function of other external sources about the contents
of the fundamental rights in question”.17
When the national courts examine whether or not
the facts of a case fall within the scope of EU law,
their approaches differ widely. In some judgments,
a detailed assessment is provided. This assessment
sometimes includes reference to the case law of the
CJEU in general or to specific judgments. An Austrian
court,18 for instance referred to the CJEU judgment in the
Åkerberg‑Fransson case19 and a Danish court20 referred
to the CJEU judgment in the Marks & Spencer case.21
In some judgments, the national court even provides
a detailed assessment of the facts of the case against
the CJEU’s case law concerning the scope of law. Such
was the case when an Irish court referred to the CJEU
judgment in the Zambrano case and the subsequent
CJEU case law, and presented the respective principles
of EU law.22 There are also examples where judgments
deal with the scope of EU law by referring to state‑
ments in earlier national court judgments or opinions
from academic literature.23
At the other end of the spectrum, there are national
judgments that do not even raise the question of the
Charter’s applicability and yet nevertheless provide
an interpretation of the Charter. In a Slovak Republic
case, for instance, a regional court invoked the Charter
without examining its scope and applicability and stated
that “Article 98” would oblige all EU Member States to
ensure a high level of consumer protection. What is
meant, instead, is obviously Article 38, not 98, and it
merely states that “Union policies [not Member States]
shall ensure a high level of consumer protection”.24
In general, it appears that national courts do not
­consistently address in their judgments the question
of whether or not the Charter applies. While national
courts frequently quoted Article 51 on the field of appli‑
cation of the Charter, such a reference rarely led them to
26
decide how the situation at stake would qualify under
this provision. 25 Equally, few judgments provide an
interpretation of Article 51, even if they identify a wider
or a more restrictive reading of the Charter’s scope.
A judgment from Malta might serve as an example of
the latter type of reading. The Maltese court stated
that the Charter was “totally unrelated [to the facts
of the case] as the rights in the Charter only apply to
administrative acts of the European Institutions and
to the regulations, directives and decisions emerging
from the Treaties”.26
The standing of the Charter in the
national legal system
In many cases analysed, the Charter was used to
add (additional) legal heft to the interpretation of
a national law provision, including cases dealing with
national constitutional law. To give an example from
Spain, the Constitutional Court referred to its standing
case law when stating that treaties and international
agreements including EU law may constitute “valuable
interpretive criteria of the meaning and scope of the
rights and freedoms recognised by the Constitution”.
The court underlined that these “valuable interpretive
criteria” also includes the interpretation developed by
the organs established in those treaties and interna‑
tional agreements.27 Such judgments reveal that the
Charter’s guiding function is not necessarily limited
to cases where EU law in general and the Charter
in particular apply.28
Less frequent were judgments using the Charter to
­interpret EU secondary law, although there is an example
from France in the context of the Free Movement
Directive (2004/38/EC). There are also cases where the
Charter, secondary law and national law implementing
EU legislation are looked at from the perspective of
a triangular relationship, as a German judgment did. At
stake was the scope of Article 2 (2) of the Employment
Directive (2000/78/EC), which says that the directive
“shall be without prejudice to measures laid down by
national law which, in a democratic society, are neces‑
sary for public security, for the maintenance of public
order and the prevention of criminal offences, for the
protection of health and for the protection of the rights
and freedoms of others.” The case concerned alleged
age discrimination in a regional provision, which required
house inspectors to be no older than 70. The national
court admitted that the provision did indeed compromise
Article 21 of the Charter, but it argued that this intrusion
was justified in accordance with Article 52 (1) of the
Charter. The justifications for interference under that
article are, the court said, “for the very same reasons”
as those justifying interferences with fundamental rights
under national constitutional law.29
In the United Kingdom, the standing of the Charter in
the national legal system was addressed explicitly in
The EU Charter of Fundamental Rights before national courts and non‑judicial human rights bodies
some judgments and consequently picked up in the
political debate. In a case concerning an asylum seeker
who was returned to his country of origin, the claimant
argued that the UK government interfered with his
rights under Article 7 of the European Charter, among
others, by causing private information to be disclosed to
his home country’s authorities. In the end, the claim was
dismissed. However, the judge referred to the judgment
of the CJEU in the case N. S. v. Secretary of State for the
Home Department,30 stressing that:
“The constitutional significance of this d
­ ecision
can hardly be overstated. The Human Rights
Act 1998 incorporated into our domestic
law large parts, but by no means all, of the
European Convention on Human Rights.
Some parts were deliberately missed out by
Parliament. The Charter of Fundamental Rights
of the European Union contains, I believe, all
of those missing parts and a great deal more.
Notwithstanding the endeavours of our political
representatives at Lisbon it would seem that
the much wider Charter of Rights is now part
of our domestic law. Moreover, that much
wider Charter of Rights would remain part of
our domestic law even if the Human Rights
Act were repealed.”31
In another judgment, a national court in the United
Kingdom took a more operational approach to the
standing of the Charter. The case concerned two appli‑
cants: a cook at the Sudanese embassy and a member
of the domestic staff of the Libyan embassy. Both
had made claims arising out of their employment and
were met with pleas of state immunity. These pleas
were upheld by two separate employment tribunals
and both parties appealed. The claimants invoked
Article 47 of the Charter and argued that the State
Immunity Act 1978 (SIA), which provides for state
immunity in UK law, should be disapplied to the extent
the claims fell within the material scope of EU law. The
employment appeal tribunal addressed the question
whether a direct application of the Charter implies that
national law contrary to the Charter must be disapplied
in a claim litigated between private individuals. The
Court stated that the claims relating to discrimina‑
tion, harassment and breaches of the Working Time
Regulations were subject to Article 47 of the Charter,
but those for unfair dismissal and minimum wages
were not. The Court concluded that, whereas the
Human Rights Act “does not permit the disapplica‑
tion of any statutory provision, […] EU law requires it
where it concerns the material scope of EU law”; thus,
for the claims covered by EU law, certain provisions of
the SIA were “to be disapplied”.32 The discussions that
were sparked by these judgments led the European
Scrutiny Committee in the House of Commons to pre‑
pare a report on the application of the Charter in the
UK, which will be presented in 2014.
The sample of cases analysed here does not contain
cases where the standing of the Charter was addressed
in other Member States, but this should not lead to the
conclusion that national courts in other countries did
not address the Charter’s legal standing. A look back
to 2012 is instructive in this regard. The Constitutional
Court in Austria had referred to a principle of equiva‑
lence and concluded that the rights of the Charter can
be invoked as constitutional rights and, within the
scope of the Charter, constitute a standard of review
in the proceedings of constitutional complaints, in par‑
ticular pursuant to specific provisions of the Austrian
Constitution (Articles 139 and 149).33 In the same year,
the Constitutional Court of Romania said that Charter
provisions are applied when checking constitutionality,
basing this Charter role on the Romanian constitution’s
integration clause in Article 148.34 In 2013, a national
court in France stressed, in a case concerning the lack of
suspensive effect of an appeal against expulsion orders,
that the national judge does not have the power under
the Code of Administrative Justice to rule on the com‑
patibility of such laws with the provisions of an inter‑
national convention or reject their application under
the European Union law. However, the court added that
the situation is different where these legal dispositions
appear to be manifestly incompatible with European
Union law requirements, which was – according to the
national court – not the case.35 In a case in Cyprus, the
parties referred in their argumentation to the Charter
as higher‑ranking law. The court, however, limited itself
to establishing that Articles 20 and 21 of the Charter are
largely identical to the national constitution’s provisions
and “for that reason” there was no need to refer a ques‑
tion of interpretation to the CJEU.36
The Charter and other non‑national
legal sources
Even if the Charter within the EU system is the most
prominent legal source of fundamental rights, it is by
no means the only relevant document in the field.
The Charter text makes the link to the ECHR explicit.
Article 52 (3) of the Charter establishes that the
“meaning and the scope” of the rights in the Charter
are linked to the corresponding rights in the ECHR. This
parallelism is reflected in national case law. In nearly
two thirds of the 69 national judgments, reference was
made to the ECHR. Just as the data collection for 2012
revealed, there is a degree of parallelism in using the
ECHR and the Charter.
A few judgments explicitly mention the relationship
between the Charter and the ECHR by referring to
Article 52 (3) and underlining that the meaning and
the scope of the rights mentioned in both instruments
are the same. In Romania, a court identified Charter
Article 41 as a benchmark for the administrative con‑
duct of EU Member States’ public authorities. Where the
state complies with this benchmark, protection ensured
27
Fundamental rights: challenges and achievements in 2013
by Article 6 of the ECHR is guaranteed.37 Conversely,
in a judgment from the Netherlands, the national
court, “not taking into consideration whether in this
case the law of the Union is implemented in the sense
of [A]rticle 51”, checked the national norms against
Article 6 of the ECHR and concluded that national law
is not contrary to Article 6 of the ECHR and therefore,
given the similarity of the provisions in the ECHR and the
Charter, also not contrary to Article 47 of the Charter.38
Where national courts are confronted with differences
in wording between the Charter and the ECHR, European
Court of Human Rights (ECtHR) case law may play
a special role. For instance, unlike the ECHR’s wording,
the Charter establishes in Article 47 (2) that everyone
shall have “the possibility” of being advised, defended
and represented in judicial proceedings. Given ECtHR
case law establishing that a statutory obligation to be
represented by a lawyer before certain courts does
not infringe Article 6 of the ECHR, a national court in
Germany developed case law clarifying that such an
obligation is thus also in line with Article 47 of the
Charter.39 In another judgment delivered by a German
court, EU secondary law was interpreted not through
CJEU case law but through that of the ECtHR. The judg‑
ment concerned the Free Movement Directive and how
it relates to homosexual relationships. Since the ECtHR
subsumes questions of sexual self‑determination and
of one’s sex life under the term ‘private life’ protected
by Article 8 (1) of the ECHR, the court saw no need for
a preliminary ruling by the CJEU. Against the background
of the EctHR’s case law, the national court had no doubts
on the classification of homosexuality and considered
the feature of “sexual orientation” to be an element
which forms identity as defined in Article 10 (1) (d) of
EU Directive 2004/83/EC.40
Unlike the ECHR, Charter Article 53 also recognises
other international agreements to which the Union or
all the EU Member States are party. Where national
courts use the Charter in their reasoning, they some‑
times refer in parallel to other international documents.
Such parallel references are not as frequent as parallel
references to the ECHR. Most prominently featured
is the UN Convention on the Rights of the Child, to
which six judgments referred. Judgments also made
three references to the Universal Declaration of Human
Rights; two references to the International Covenant on
Economic, Social and Cultural Rights; two references to
the International Covenant on Civil and Political Rights;
two references to the European Social Charter; and one
reference to the Convention on the Elimination of All
Forms of Racial Discrimination.
National courts and the Court of Justice
of the European Union
In 41 of the 70 judgments analysed, the CJEU was not
mentioned at all. However, 13 judgments referred to the
28
court in general terms and 17 also referred to specific
CJEU judgments. National courts might also refer to CJEU
case law more generally, as a judgment from Poland
shows. In this example, the national court denied
a violation of Article 47 of the Charter, “as neither this
provision nor the Court of Justice of the European Union
provide such procedural requirements”. 41 Other judg‑
ments gave concrete and detailed reference to CJEU
judgments, at times setting them into the perspective
of national law. In a ruling from Slovakia, for instance,
the national Constitutional Court’s conclusions are set
in relation to the CJEU’s conclusions.42
Figure 0.7 References to the CJEU in
the context of the Charter in
national judgments (analysed)
12
40
16
Judgments containing general
references to the CJEU
Judgments containing references
to specific case law of the CJEU
Judgments not referring at all to the CJEU
in the context of the Charter
Source: FRA, 2014
The CJEU’s jurisprudence was used to provide guidance
in the interpretation of national constitutional law out‑
side the scope of EU law, for example in a judgment
from Spain. In a case concerning the civil legislation
that regulates the order of surnames in Spain and civil
registration of names, the national court used the CJEU
judgment in C-208/09, the Sayn‑Wittgenstein case, to
stress that the name of a person is an element of his
or her identity and privacy, whose protection is guar‑
anteed by Article 7 of the Charter.43
Some preliminary references were sparked by a doubt
concerning the interpretation of a Charter right, without
it necessarily translating into questions explicitly men‑
tioning the Charter. In some cases, national courts do
not share a party’s view that the Charter right in ques‑
tion was not clear in a given context. For instance, in
an Austrian judgment, the court saw no need to ask
for clarification on the (non-)applicability of Article 47
in the context of national electricity legislation. 44 In
a case from Lithuania, the Supreme Court decided to
stay the proceedings and refer to the CJEU question
in the context of Article 47 of the Charter and the
applicability of consumer protection rules. The case
concerned a contract concluded between a practising
lawyer and a natural person; it was unclear if this
The EU Charter of Fundamental Rights before national courts and non‑judicial human rights bodies
contract should be viewed as concluded between
a customer and a business service provider, which
would make consumer protection rules applicable. In
an Estonian case concerning Article 47 of the Charter,
the question arose whether a circuit court was entitled
to suspend the procedure and refer the case to the
CJEU for a preliminary ruling.45 The case concerned an
Estonian–Latvian Territorial Cooperation Programme
implemented under the EU’s cohesion policy. The deci‑
sions of the programme’s monitoring committee could
not be appealed against, raising the question of their
conformity with the Charter, especially with Article 47.
The Netherlands made a preliminary reference to the
Court of Justice in the context of the Charter right to
good administration (Article 41). 46 The national court
sought guidance from the CJEU on how to read the “right
of defence” in the administrative context. The Dutch
court acknowledges CJEU case law, recognising that this
right is now also laid down in Article 41 of the Charter. It
notes, however, that CJEU case law shows that the right
is not absolute and that the Charter, “according to its
wording, is only addressed to institutions, bodies, offices
and agencies of the Union”. A judgment delivered in
Portugal illustrates a case in which the court discussed
in detail whether or not to refer it to the CJEU.47 In a case
concerning a legal amendment to lower the pension
rights of former communist security officials, a regional
Court in Poland requested the CJEU for a preliminary
ruling whether the amendment was not infringing with
Charter Articles 1 (human dignity), 17 (right to property),
20 (equality before the law), 21 (non-discrimination)
and 47 (right to an effective remedy and to a fair trial).
For this case, Protocol No. 30 on the applicability of the
Charter is of relevance. 48
How non‑judicial bodies at
national level use the Charter
Fundamental rights generally, and the Charter
­specifically, should be embedded within the work of all
entities that provide and support access to justice at all
levels of government. Courts alone do not carry out this
function. A range of bodies with a human rights remit,
some of which are considered non‑judicial in that they
do not adjudicate cases, also play a crucial role. Some
of these bodies are called quasi‑judicial; they adjudicate
cases but are not courts of law. EU Member States have
a wide range of such bodies, whose powers, goals and
operations vary greatly.
To explore the extent to which these bodies make
use of the Charter and related EU fundamental rights
law, the European Commission (DG Justice, C1) started
in 2013 to collect information from NHRIs accred‑
ited under the Paris Principles, equality bodies and
ombudsperson institutions as well as specific ombud‑
sperson institutions for children. The information was
collected through the respective European networks
of these four types of bodies, and FRA was asked to
provide an analysis.
The categorisation into the four types of bodies
­mentioned is not clear cut: an NHRI can at the same time
serve as an equality body and also as an ombudsperson
institution, and any of these bodies could also have
an explicit mandate regarding children, thus forming
part of the European network for such bodies. In addi‑
tion, a designated equality body is a requirement for
all Member States under EU law, 49 whereas no such
legal requirement exists for the other bodies. Basically,
each Member State could have an entity in each of the
four categories, but, commonly, Member States do
not have all types. Some states have more than one
of a particular type of body; the United Kingdom, for
example, has separate NHRIs for Scotland and Northern
Ireland, as well as one for England and Wales (for more
details on NHRIs, see Chapter 8 on access to justice
and judicial cooperation and Chapter 10 on EU Member
States and international obligations). A short question‑
naire containing six broad questions was sent to the
relevant bodies in all EU Member States. The questions
concerned the role of the Charter in:
1.training
2. awareness raising
3. processing complaints
4. advising government
5. litigating cases before courts
6.mediation.
Each of the six areas contained subquestions to quantify
the responses, such as how many persons had under‑
gone training on the Charter or how many cases had
related to the Charter. Not all the questions would be
applicable to all bodies; some provide training, others
advise governments and yet others process complaints
or litigate on behalf of complainants.
The time frame about which answers should be
­p rovided was between the entry into force of the
Charter, in December 2009, and the questionnaire’s
cut‑off date, 31 October 2013. The last two areas, litiga‑
tion and mediation, were an exception: answers about
them were to refer solely to 2013.
All told, there are approximately 100 bodies of
the four types across the 28 EU Member States. In
total, there were 43 responses to the questionnaire.
Bodies across all four types responded from 25 of
the 28 EU Member States. Among the respondents
were five specialised in children and five regional
Ombudsperson institutions (from Italy and Spain). The
European Ombudsman also responded.
Of the six questions, some received more concrete
responses, largely because of the nature of the issues
29
Fundamental rights: challenges and achievements in 2013
they cover being more or less precise. Awareness
raising, in particular, tends to be done through general
campaigns on, say, equality. A particular role for the
Charter, or relevant EU legislation which the question‑
naire also addressed, cannot usually be distinguished.
Training has a similar nature in that it tends to cover
issues and principles, drawing on the most relevant
sources which may include UN, Council of Europe and
EU law. But again, specific references to EU fundamental
rights standards might not be needed for training, so it
is difficult to pinpoint the role these standards play in
training. Still, it is clear from the responses, in particular
from the equality bodies, that the transposed EU law on
equality is very influential.
Processing complaints and advice is more easily
­associated with EU fundamental rights. The same applies
to litigation where the bodies in question have judicial
functions or can support or bring cases before courts.
Finally, the sixth area, mediation, is difficult to associate
with any legal standards, given that legal arguments
are probably not at the core of such a process. The brief
overview of the responses below consequently focuses
on those provided to Questions 3, 4 and 5.
Comparability is essential for detailed analysis. The
diversity of the organisations that responded to ques‑
tions that were intentionally brief and straightforward
did not allow for a strong comparative framework. For
this reason, the number of bodies responding positively
or negatively should be read as a general indication
rather than as a detailed review.
Training and awareness raising
About half of the bodies (22 of the 43 that responded)
provided training related to the Charter and or EU leg‑
islation. The scope of the training varied from general
staff‑only training to outreach including thousands of
participants. Twenty‑one bodies said they provided no
training, with six explaining that training was outside
their mandate. A few said they limited their training
focus to the ECHR or, for bodies active in this area, to
the UN Convention on the Rights of the Child.
More concrete examples of engagement with EU
­fundamental rights instruments include the Romanian
Institute of Human Rights. It organises a week‑long
summer course every year, to which a Charter module
was added after the entry into force of the Lisbon Treaty
in 2009. Practitioners and academics participate, some
30 per year.
The Parliamentary Ombudsman in Sweden organised
internal training for some 50 persons covering the
Charter in greater detail. The Public Defender of Rights
in Slovakia said it covers the Charter right to good
administration (Article 41) in all staff training.
30
Slightly fewer than half (18) of the bodies provided
awareness raising on EU fundamental rights. About
half (22) responded negatively, with five stating that it
was not within their mandate. A few others said they
focused on the ECHR and the UN Convention on the
Rights of the Child. The Mediator in Luxembourg said it
planned a campaign on Article 41 of the Charter.
Processing complaints
Of the 43 bodies which responded, 26 processed
complaints using EU fundamental rights. Seventeen
answered no. Of these, 12 responded that they had not
yet received any complaints related to EU fundamental
rights. Two said that they were not mandated to deal
with complaints or cases.
Complaints that refer to EU fundamental rights appear
to be limited. The European Ombudsman replied that
some 13 % of cases referred explicitly to the Charter.
The Parliamentary Ombudsman in Sweden estimates
that only applicants include such references in a mere
1 %–3 % of complaints. It could not identify any case
where the Charter would have had a clear and trace‑
able impact on the outcome. The Defender of Rights in
France estimated the equivalent number to be a frac‑
tion of 1 %. The Ombudsman in Greece concluded
that in some 2 %–3 % of cases the complainant would
invoke the Charter. The Advocate of the Principle of
Equality, the equality body in Slovenia, reported that
15 % of complaints made reference to EU fundamental
rights, but that in the majority of these cases the EU
element was provided by the Advocate of the Principle
of Equality, not the complainant.
As for the Charter’s influence on substantive issues, the
European Ombudsman stressed public administration
and the related relevance of Charter Article 41, as did the
Parliamentary Ombudsman in Finland. The Ombudsman
in Greece, the equality body, referred to discrimina‑
tion against Roma. Other equality bodies, including the
National Centre for Human Rights in Slovakia and the
Centre for Equal Opportunities and Opposition to Racism
in Belgium, also noted that the equality title of the
Charter was influential. The Parliamentary Ombudsman
in Finland also mentioned cases concerning freedom of
movement, access to healthcare and discrimination on
the basis of religion.
Advising government
Around half (21) of the bodies that replied to the survey
provide advice to governments on the basis of the
Charter or related EU legislation. Of those responding,
17 answers were negative, with 10 of the bodies not
having a mandate to provide such advice. Of those
lacking a mandate on the Charter, four reported that
they were authorised to advise on the basis of other
instruments, such as the constitution or international
The EU Charter of Fundamental Rights before national courts and non‑judicial human rights bodies
treaties. The National Commission for the Promotion of
Equality in Malta reported that it had used EU secondary
legislation on discrimination to provide advice. Although
the Charter is a relative newcomer among human rights
instruments and many bodies do not have mandates
explicitly referencing the Charter, the act establishing
the Danish Institute for Human Rights contains an
explicit reference to the Charter as part of the basis on
which the body should operate.50 The Human Rights
Defender in Poland has advised the government on
the basis of the Charter in relation to age discrimina‑
tion, gender equality, rights of persons with disabilities
and data protection.
Litigating cases before courts
and mediation
Litigation before courts based on EU fundamental rights
law was used by just over a quarter (12) of the bodies
responding. This also reflects the limited mandate of
many of the bodies. In fact, out of 30 responses saying
that the body did not litigate, 18 said that their mandate
prevented them from bringing cases before a court.
Another four of those 30 responses said they had not
dealt with any cases related to EU fundamental rights
law. One of the 43 responses was not clear on whether
or not litigation was possible.
Four of the bodies provided explicit examples of how
the Charter had related to their litigation work. The
Public Defender of Rights in the Czech Republic assisted
a court case that concerned discrimination. The Human
Rights Defender in Poland has motioned the constitu‑
tional court, supported by the Charter in relation to the
freedom of assembly, rights of persons with disabilities
and data protection. The Commissioner for Fundamental
Rights in Hungary has sought the Charter’s support
when bringing cases to the constitutional court con‑
cerning data protection, right to an effective remedy
and to a fair trial, freedom of information, the right
to property and the right to social security. The Public
Defender in Spain reported that claimants use Article 41
of the Charter to argue that bodies within the public
administration should justify their decisions.
Five of the bodies referred to mediation in the context
of EU fundamental rights. Thirty‑five responded nega‑
tively. Of these, 12 responded that the reason was a lack
of mandate for it. Six of the 35 stated that it would be
possible to rely on EU fundamental rights if there were
a case appropriate for mediation.
Conclusion
It is in the fields of asylum and immigration that national
courts most often refer to the Charter of Fundamental
Rights of the European Union. More than one in five
of the cases analysed deal with these policies (21 %).
The Charter right that national courts most commonly
refer to is the right to an effective remedy and a fair
trial (Article 47). Together with the right to good admin‑
istration (Article 41), these rights formed a quarter of
all the references to the Charter in the 2013 judgments
analysed. This reflects the situation before the CJEU,
which invokes Articles 41 and 47 in half of all the cases
in which it refers to the Charter.
Of all the cases in which national courts referred to the
Charter, 22 % were devoted to the Charter’s horizontal
provisions, encompassing its scope (Article 51) and
interpretation (Article 52). Despite these provisions’
prominence before national courts, their judgments
rarely analyse the Charter’s reach in detail. The Charter
is often rather superficially referred to as a means of
interpretation, without the question of whether or not
the Charter applies being addressed.
Occasionally, national courts also refer to the Charter
in their reasoning in cases that clearly fall outside the
scope of EU law. As an expression of the values on
which the Union is built and to which all Member States
adhere, the Charter thus reverberates beyond EU law.
National courts tend to cite in parallel the Charter, which
is the EU human rights bill, and the ECHR, the Council
of Europe’s human rights treaty. In nearly two thirds of
the judgments analysed, the courts paired references
to the Charter and the ECHR.
The Charter is also used and referred to before
bodies with a human rights remit, including NHRIs,
Ombudsperson institutions and equality bodies.
However, given the diversity of these institutions, the
role of the Charter is more mixed and less pronounced
than before national courts. Just like the national courts,
the bodies with a human rights remit often refer both to
the Charter and to human rights treaties, although the
latter see more use than the former. Many of the bodies
are specialised equality bodies, which tend to draw
on the Charter’s equality title. However, other rights,
including to data protection and to good administration,
are also highlighted before such bodies. Nevertheless,
there remains potential for much greater use of the
Charter before bodies with a human rights remit.
31
Fundamental rights: challenges and achievements in 2013
Endnotes
All hyperlinks accessed on 30 April 2014.
1
European Commission (2012), 2011 report on the
application of the EU Charter of Fundamental Rights, p. 8,
http://ec.europa.eu/justice/fundamental‑rights/
files/charter_report_en.pdf; European Commission
(2013), 2012 report on the application of the EU Charter
of Fundamental Rights, p. 24, http://ec.europa.eu/justice/
fundamental‑rights/report/2012/index.html.
2
European Commission (2012), 2011 report on the
application of the EU Charter of Fundamental Rights, p. 8,
http://ec.europa.eu/justice/fundamental‑rights/files/
charter_report_en.pdf.
3
European Commission (2014), 2013 report on the application
of the EU Charter of Fundamental Rights, p. 7.
4
European Parliament (2012), ‘Main trends in the recent
case law of the EU Court of Justice and the European
Court of Human Rights in the field of fundamental
rights’, PE462.446, http://www.europarl.europa.eu/
RegData/etudes/etudes/join/2012/462446/IPOL‑LIBE_
ET(2012)462446_EN.pdf. A recent example is de Burca, G.
(2013), ‘After the EU Charter of Fundamental Rights: The
Court of Justice as a human rights adjudicator’, Maastricht
Journal, Vol. 20, No. 2, pp. 168–184.
5
6
For exceptions confirming the rule, see de Visser, M. (2013),
‘National constitutional courts, the Court of Justice and
the protection of fundamental rights in a post‑Charter
landscape’, Human Rights Review; Bazzocchi, V. (2011), ‘The
European Charter of Fundamental Rights and the courts’, in
Di Federico, G. (ed.), The EU Charter of Fundamental Rights,
Springer, pp. 55–75.
Italy, Corte Appello Firenze sez. lav (2007), judgment
of 9 June 2007, quoted by Amici, F., Papa, V,. and Sacca
E., (2009), The courts and the Nice Charter: Technical
arguments and interpretative activity, p. 259, http://csdle.
lex.unict.it/Archive/AC/Dossiers/EU%20law/20120206101728_INT_dossier12_fund‑rights_2009pdf.pdf; Italy,
Tribunale Ravenna (2008), judgment of 16 January 2008,
quoted ibid., p. 268.
7
Belgium, Cour constitutionnelle/Grondwettelijk Hof,
No. 73/2013, 30 May 2013, No. 107/2013, 18 July 2013, and
No. 124/2013, 26 September 2013.
8
Similarly, the ACA general report on the implementation
of the Charter (seminar of 24 November 2011) states: “The
area of law in which the Charter seems to have played the
most prominent role to date is immigration and asylum law:
apart from Spain, Hungary and Austria, the Charter has had
an impact (to a greater or lesser extent) in this area of law
in every country.” ACA, General report, www.aca‑europe.
eu/seminars/DenHaag2011/Gen_Report_en.pdf.
9
For the list of the 114 decisions, see the annex to European
Commission (2014), 2013 report on the application of
the EU Charter of Fundamental Rights, Luxembourg,
Publications Office.
10 See Association of the Councils of State and Supreme
Administrative Jurisdictions of the European Union (2012),
General report, p. 10, www.aca‑europe.eu/seminars/
DenHaag2011/Gen_Report_en.pdf.
11 In some of the judgments, it remained unclear whether or
not the Charter had already been referred to by the parties.
12 Czech Republic, Nejvyšší soud, Case 30 Cdo. 3223/2011,
14 May 2013, www.nsoud.cz/Judikatura/judikatura_ns.nsf/
WebSearch/BDA2B059E16E4F1EC1257B97002EB949?
openDocument&Highlight=0; see, similarly, Poland,
Sąd Apelacyjny w Białymstoku, Case I SA/Wa 1012/13,
17 April 2013, http://orzeczenia.bialystok.sa.gov.pl/
content/$N/150500000001006_II_AKzw_000665_2013_
Uz_2013-04-17_001.
32
13 Poland, Wojewódzki Sąd Administracyjny w Warszawie,
Case I SA/Wa 1012/13, 6 May 2013, http://orzeczenia.nsa.
gov.pl/doc/020019FFCB.
14 Portugal, Tribunal Constitucional, Case 754/13,
29 August 2013, www.tribunalconstitucional.pt/tc/
acordaos/20130474.html.
15 Italy, Tribunale regionale amministrativo (TAR) – Rome
(second section), Case 633, 21 January 2013.
16 Italy, Corte Suprema di Cassazione, Case 41, 3 January 2013.
17 Portugal, Tribunal Constitucional, Case 117/12,
15 July 2013, http://www.tribunalconstitucional.pt/
tc/acordaos/20130404.html; for a similar emphasis
on autonomy, see Portugal, Tribunal Constitucional,
Case 274/2013, 23 May 2013, www.tribunalconstitucional.
pt/tc/acordaos/20130274.html.
18 Austria, Verwaltungsgerichtshof, judgment 2012/15/0021,
19 March 2013, www.ris.bka.gv.at/Dokument.wxe?Abfrage=
Vwgh&Dokumentnummer=JWT_2012150021_20130319X00.
19 CJEU, Case C-617/10, 26 February 2013.
20 Denmark, Landsskatteretten, Case 04-0002640, judgment
of 4 June 2013, www.afgoerelsesdatabasen.dk/ShowDoc.
aspx?q=04-0002640&docId=dom‑lsr-04-0002640-full.
21 CJEU, C-446/03, Marks & Spencer, 13 December 2005.
22 See Ireland, High Court (2013), Case IEHC 246s, judgment
of 30 April 2013, especially para. 50, www.courts.ie/
judgments.nsf/6681dee4565ecf2c80256e7e0052005b/917c1
eda50f25d3d80257b8f002fbcb7?OpenDocument.
23 See Austria, Oberster Gerichtshof, judgment 8 Ob 7/13g,
4 March 2013, at 2.3, www.ris.bka.gv.at/Dokumente/Justiz/
JJT_20130304_OGH0002_0080OB00007_13G0000_000/
JJT_20130304_OGH0002_0080OB00007_13G0000_000.pdf.
24 See Slovakia, Okresný súd Piešťany, Case 7C/127/2012,
judgment of 1 August 2013, www.justice.gov.sk/
Stranky/Sudne‑rozhodnutia/Sudne‑rozhodnutie‑detail.
aspx?PorCis=3622CDA6-5E78-47D8-9B3C‑B6962D4019EA&P
ojCislo=169769.
25 Examples of judgments explicitly denying that the scope of
the Charter is activated are Hungary, Alkotmánybírósága,
Case 3140/2013, judgment of 24 June 2013; Netherlands,
Centrale Raad van Beroep, Case BZ2161, judgment of
22 February 2013, http://deeplink.rechtspraak.nl/uitspra
ak?id=ECLI:NL:CRVB:2013:BZ2161; Netherlands, Centrale
Raad van Beroep,Case 1090, judgment of 12 July 2012,
http://deeplink.rechtspraak.nl/uitspraak?id=ECLI:NL:C
RVB:2013:1090.
26 Malta, Criminal Court of Appeal, Case 98/2011, judgment of
15 July 2013.
27 Spain, Tribunal Constitucional, Case 61/2013, judgment of
14 March 2013, http://hj.tribunalconstitucional.es/HJ/docs/
BOE/BOE‑A-2013-3797.pdf.
28 See Spain, Tribunal Constitucional, Case 167/2013, judgment
of 7 November 2013, http://hj.tribunalconstitucional.es/HJ/
docs/BOE/BOE‑A-2013-11678.pdf.
29 Germany, Hessischer Verwaltungsgerichtshof,
Case 7 C 897/13.N, judgment of 7 August 2013,
http://openjur.de/u/642867.html.
30 CJEU, Case C-411/10, N.S. v. Secretary of State for the Home
Department, judgment of 21 December 2011.
31 United Kingdom, High Court (Queen’s Bench Division –
Administrative Court), Case EWHC 3453 (Admin), judgment
of 7 November 2013.
32 United Kingdom, Employment Appeal Tribunal,
Case UKEAT 0401_12_0410, judgment of 4 October 2013,
www.bailii.org/cgi‑bin/markup.cgi?doc=/uk/cases/
UKEAT/2013/0401_12_3004.html&query=Janah+and+v+and
+Libya+and+Benkharbouche+and+v+and+Embassy+and+of
+and+the+and+Republic+and+of+and+Sudan%92&method=
boolean.
The EU Charter of Fundamental Rights before national courts and non‑judicial human rights bodies
33 Austria, Verfassungsgerichtshof, Case U466/11; U1836/11,
judgment of 14 March 2012, www.ris.bka.gv.at/
Dokumente/Vfgh/JFT_09879686_11U00466_2_00/
JFT_09879686_11U00466_2_00.html.
34 Romania, Curtea Constituţională a României,
Case 1021D/2012, judgment of 20 November 2012,
www.ccr.ro/files/products/D0967_12.pdf.
35 France, Haute Cour administrative, judge for urgent cases,
Case No. 371316, judgment of 23 August 2013, www.
legifrance.gouv.fr/affichJuriAdmin.do?oldAction=rechJuriAd
min&idTexte=CETATEXT000027990506&fastReqId=8853375
19&fastPos=34.
36 Cyprus, Supreme Court, Civil Appeal No. 77/2012, judgment
of 13 February 2013, www.cylaw.org/cgi‑bin/open.pl?file=/
apofaseis/aad/meros_1/2013/1-201302-77-12PolEf.htm.
37 Romania, Înalta Curte de Casaţie și Justiţie,
Case 2001/54/2011, judgment of 22 January 2013.
38 Netherlands, Administrative Jurisdiction Division
of the Council of State, Case BZ2265, judgment of
25 February 2013, http://deeplink.rechtspraak.nl/uitspraak?
id=ECLI:NL:RVS:2013:BZ2265.
39 Germany, Bundesfinanzhof, Case X K 11/12, judgment of
6 February 2013, para. 13, www.bundesfinanzhof.de/
entscheidungen/entscheidungen‑online.
40 Germany, Verwaltungsgerichtshof Baden‑Württemberg,
Case A 9 S 1872/12, judgment of 7 March 2013, http://lrbw.
juris.de/cgi‑bin/laender_rechtsprechung/document.py?Geri
cht=bw&GerichtAuswahl=VGH+Baden‑W%FCrttemberg&Ar
t=en&sid=4f6610e44d88e7782a6911dc4ee61600&nr=16837
&pos=0&anz=1.
41 Poland, Naczelny Sąd Administracyjny, Case II OZ 327/13,
judgment of 1 August 2013, http://orzeczenia.nsa.gov.pl/
doc/46581FD26A.
42 Slovakia, Ústavný súd Slovenskej republiky,
Case II. ÚS 499/2012-47, judgment of 10 June 2013,
http://portal.concourt.sk/SearchRozhodnutia/rozhod.
do?urlpage=dokument&id_spisu=499748.
44 Austria, Oberster Gerichtshof, Case 8Ob7/13G, judgment
of 4 March 2013, www.ris.bka.gv.at/Dokumente/Justiz/
JJT_20130304_OGH0002_0080OB00007_
13G0000_000/JJT_20130304_OGH0002_0080OB00007_
13G0000_000.pdf.
45 Estonia, Riigikohtu halduskolleegium, Case 3-3-1-2-13,
judgment of 21 March 2013, http://www.nc.ee/?id=11&tekst
=RK/3-3-1-2-13.
46 Netherlands, Hoge Raad, Case BR0671, decision of
22 February 2013: http://deeplink.rechtspraak.nl/uitspraak?
id=ECLI:NL:HR:2013:BR0671.
47 Portugal, Supremo Tribunal de Justiça, Case 149/11.4YFLSB,
judgment of 26 June 2013, www.dgsi.pt/jstj.nsf/954f0ce6ad
9dd8b980256b5f003fa814/f3a3d72faffbb1c180257b160053d
34b?OpenDocument.
48 Poland, Częstochowa Regional Court, R. Panczyk v. Ministry
of Interior and Administration, IV U 147/02, 20 December
2013. See also consolidated versions of the TEU and
TFEU Protocol No. 30 on the application of the Charter
of Fundamental Rights of the European Union to Poland
and to the United Kingdom, http://eur-lex.europa.eu/
legal-content/EN/TXT/?uri=OJ:C:2012:326:TOC.
49 Council Directive 2000/43/EC of 29 June 2000 implementing
the principle of equal treatment between persons
irrespective of racial or ethnic origin (Racial Equality
Directive), OJ 2000 L 180, p. 22, Art. 13; Council Directive
2004/113/EC of 13 December 2004 implementing the
principle of equal treatment between men and women in
the access to and supply of goods and services (Gender
Goods and Services Directive), OJ 2004 L 373, p. 37, Art. 12;
Directive 2006/54/EC of the European Parliament and of
the Council of 5 July 2006 on the implementation of the
principle of equal opportunities and equal treatment of
men and women in matters of employment and occupation
(recast) (Gender Equality Directive), OJ 2006 L 204, p. 23,
Art. 20.
50 Act No. 553 of 18 June 2012, Art. 2 (6).
43 See Spain, Tribunal Constitucional, Case 167/2013, judgment
of 7 November 2013, http://hj.tribunalconstitucional.es/HJ/
docs/BOE/BOE‑A-2013-11678.pdf.
33
Asylum, immigration and integration
Border control and visa policy
Information society, respect for
­private life and data protection
Freedoms
1
Asylum, immigration and integration ������������������������������������� 37
1.1. EU faces challenges managing sea borders ����������������� 38
1.2. CJEU provides authoritative interpretation
of EU asylum law ������������������������������������������������������������ 39
1.3. Member States slow to implement
EU law safeguards: the example of effective
return‑monitoring systems ������������������������������������������� 45
1.4. Some Member States require excessive
or disproportionate fees for residence permits –
an example of practical obstacles for migrant
integration ����������������������������������������������������������������������� 48
Outlook �������������������������������������������������������������������������������������� 51
Annex ���������������������������������������������������������������������������������������� 52
Fundamental rights: challenges and achievements in 2013
UN & CoE
EU
January
February
March
April
May
June
January
February
23 July – In Suso Musa v. Malta,
the ECtHR clarifies the concept
of detention “to prevent an
unauthorised entry” under
Article 5 (1) of the ECHR.
It considers that, if a state
enacts legislation explicitly
authorising the entry or stay
of immigrants pending an
asylum application, an ensuing
detention for the purpose of
preventing an unauthorised
entry may raise an issue about
the lawfulness of detention
under Article 5 (1) f of the ECHR
July
August
September
October
November
6 December – The UN High
Commissioner for Refugees
launches an emergency
operation to improve
conditions for refugees and
asylum seekers in Bulgaria
December
25 March – The European Commission tables proposal to revise the directive on admission
of students (COM(2013) 151 final)
March
April
30 May – In Arslan, the CJEU confirms that a person who applies for asylum from
pre‑removal detention can, under certain conditions, continue to be kept in detention
May
4 June – In ZZ, the CJEU interprets the provision of the Free Movement Directive (2004/38/EC)
on notification of grounds for refusing residence, which allows Member States to refrain
from disclosing certain information on grounds of state security
4 June – The European Asylum Support Office (EASO) starts a Special Support Plan in Italy
6 June – In MA, the CJEU rules on the application of the Dublin Regulation to
unaccompanied minors, placing particular importance on the best interests of the child
17 June – The European Commission publishes the 4th Annual Report on Immigration and
Asylum, calling for forward‑looking policies on migration
26 June – Four revised EU asylum instruments are published in the Official Journal
June
4 July – European Parliament adopts a resolution on the impact of the crisis on access to
care for vulnerable groups
July
August
10 September – In M.G. and N.R., the CJEU rules on the applicability of Article 41 (2) (a) of
the Charter to decisions prolonging pre‑removal detention
19 September – The CJEU rules that entry bans should normally not extend beyond five
years (Filev, Osmani)
24 September – In Demirkan, the CJEU rules that the standstill clause in Article 41 of the
Additional Protocol to the Ankara Agreement prevents states from imposing new and
more stringent procedural or financial requirements on Turkish nationals, other than those
that were already in force at the time the agreement came into being. The clause does not
apply to Turkish nationals who wish to make use of – rather than provide – services
September
17 October – EASO starts an operation in support of Bulgaria
October
7 November – In X, Y and Z, the CJEU provides guidance on homosexual asylum seekers
14 November – In Kaveh Puid, the CJEU provides further guidance on the extent of the
rights of asylum seekers subject to a transfer under the Dublin Regulation in the light of
Article 4 of the Charter
29 November – The European Commission announces a grant of €5.6 million in emergency
funding to deal with increased arrivals in Bulgaria
November
4 December – The European Commission adopts the Communication on the work of the
Task Force Mediterranean (COM(2013) 869 final)
December
36
1
Asylum, immigration
and integration
Almost 400 migrants died off the Italian island of Lampedusa in October 2013. That underlined how dangerous it
can be for those in need of protection to reach the European Union (EU). In response to the tragedy, the European
Commission set up the Task Force Mediterranean together with EU Member States. The EU also completed the
second phase of the harmonisation of EU asylum laws in 2013, publishing four revised asylum instruments,
including two directives on asylum procedures and reception conditions of asylum seekers, and revised Dublin
and Eurodac regulations. These new EU laws do not, however, translate immediately into harmonised Member
State practices. The chances that an asylum petition will be accepted still vary widely, hinging largely on the
Member State in which it is lodged. The challenge is, therefore, to close this gap by identifying and addressing
obstacles to common practice. The difficult negotiations that led to the EU asylum framework, for example,
have created rules that are often complex, vague or unclear in their relationship to the rights set forth in the
EU Charter of Fundamental Rights.
This chapter does not aim to provide a comprehensive
overview of the many developments which took place
in 2013 in the field of asylum, immigration and integra‑
tion. For this, references to other sources are provided.
After a brief description of the discussions triggered
by the tragedy near Lampedusa in October 2013, the
chapter focuses on three specific issues that illustrate
a broader challenge to fundamental rights relating to
the topics of this chapter, namely the gap between
theory and practice. Although the introduction of fun‑
damental rights safeguards at the EU level is important,
this does not automatically mean that they are applied
by EU Member States. Even less does it mean that such
application occurs in a harmonised manner. Each of the
following sections describes hurdles that need to be
overcome to have EU law applied in practice. Section 1.1
describes the role of the judiciary in clarifying how
EU law should be applied. Section 1.2 illustrates the slow
pace of implementation of EU law safeguards using the
example of forced return monitoring. Section 1.3 looks
at practical obstacles in implementation, exemplified
by fees for residence permits.
On asylum, the forthcoming annual report by the
European Asylum Support Office (EASO) will describe
major developments in 2013. These will include the
Key developments in the area of asylum,
immigration and integration
• In a Task Force Mediterranean communication, the
European Commission proposes a set of actions to reduce
the death toll in the Mediterranean sea following a tragic
incident near Lampedusa.
• The conflict in Syria creates over 2.2 million refugees, mainly
in the Middle East; two EU Member States establish ad hoc
admission procedures for Syrians.
• The second phase of the harmonisation of EU asylum policies
draws to a close in June 2013 with the publication of four
revised instruments of EU law.
• The Court of Justice of the European Union issues seven
preliminary rulings relating to asylum. In one of these, the
court highlights the importance to be given to Article 24 (2)
of the EU Charter on Fundamental Rights regarding the rights
of the child and in particular to the best interests principle.
• The European Court of Human Rights clarifies that detention
“to prevent an unauthorised entry” under Article 5 (1) f of the
European Convention on Human Rights is not allowed where
an asylum seeker has the right under EU law to enter and
stay in a state pending examination of an asylum request.
37
Fundamental rights: challenges and achievements in 2013
• A code of conduct for joint return operations
coordinated by Frontex is adopted, which also covers
forced return monitoring.
• Negotiations on the draft Seasonal Workers Directive
come to an end, with the Council of the European Union
and the European Parliament reaching political agreement
on the text.
• The European Commission publishes a proposal to review
the directive on the admission of students, which also
covers au pairs.
sudden increase of Western Balkan asylum applicants
in Hungary and, more importantly, the situation in
Bulgaria, where irregular border crossings and appli‑
cations for international protection rose substantially
in the second half of 2013, triggering an emergency
response by EASO and the United Nations High
Commissioner for Refugees (UNHCR). For other issues
that continued to be concerns in 2013, such as immi‑
gration detention and the situation of migrants in an
irregular situation, the reader may consult various pub‑
lications by civil society organisations.1 For an update on
EU anti‑trafficking policies, see the EU anti‑trafficking
website (http://ec.europa.eu/anti‑trafficking/). For
other developments in the field of legal migration and
integration, the reader can consult the regular bulletins
by the European Migration Network.
1.1.
EU faces challenges
managing sea borders
A boat carrying some 500 migrants capsized near the
Italian island of Lampedusa on 3 October. The resultant
deaths of 366 persons illustrated an alarming and
unresolved gap in the EU’s protection of individuals’
core rights (see also Section 2.1, on border control
and visa policy).
Although the EU is taking action to combat smuggling
and trafficking in human beings, both within the EU as
well as to or from third countries, it has so far done
little to offer alternative ways to seek safety for those
who flee persecution or serious harm. Two comprehen‑
sive reports, the first published by FRA in March 20132
and the second by the UN Special Rapporteur on the
human rights of migrants in April 2013,3 describe in
detail the fundamental rights challenges linked to
the management of sea borders. Both reports note
this management’s impact on the human rights of
migrants and present several suggestions on how to
improve the situation.
The Special Rapporteur calls for a human rights‑based
approach to border management, whereby the
rights of migrants should be the first consideration.
Repressive measures alone have been shown to be
38
counterproductive, driving migrants further under‑
ground and increasing the power of smuggling rings.
As suggested in Section 2.1, another consequence is
that flows simply move from one part of the EU external
border to another.
FRA ACTIVITY
Protecting fundamental rights
at Europe’s southern sea borders
In March 2013, FRA published the first report from
its research on third‑country nationals at external
borders. The report notes, for example, that fish‑
ermen should not
face negative conse‑
quences, including
the risk of criminal
proceedings for hu‑
man smuggling, if
they rescue mi‑
grants at sea. Coop‑
eration with third
countries should not
lead to circumvent‑
ing
fundamental
rights safeguards:
joint operations with
third countries must
be conditional on full respect for fundamental
rights. The report, which offers some 50 opinion
to address the gaps FRA identified, says that op‑
erational plans and other documents guiding joint
operations or patrols with third countries must be
drafted in such a way as to mitigate the risk of
fundamental rights violations. In particular, guide‑
lines should have clear provisions on the use of
force, the prohibition of torture, inhuman or de‑
grading treatment or punishment, and respect for
the principle of non‑refoulement.
Source: FRA (2013), Fundamental rights at Europe’s southern sea
borders, Luxembourg, Publications Office of the European Union
(Publications Office)
Following the Lampedusa tragedy in October 2013,
European leaders discussed what action to take. In
a 10 October press release, the UNHCR called for
10 urgent measures to prevent further tragedies and
improve burden sharing. They range from strengthening
Mediterranean search and rescue capacity, through set‑
ting up a predictable mechanism for disembarkation of
migrants in a safe place, to reinforcing protection sys‑
tems in transit countries from where migrants embark.
On 18 October, Italy started operation Mare Nostrum,
deploying military vessels to increase its search and
rescue capacity in the central Mediterranean. According
to the Italian Ministry of Interior, by the end of 2013
Mare Nostrum had assisted 4,323 persons in 34 search
and rescue operations.
Asylum, immigration and integration
At the EU level, the Justice and Home Affairs Council
asked the European Commission to convene a task force
to identify the tools which the EU has at its disposal
to prevent such tragedies and which could be used in
a more effective way. 4 The European Council gave it
the job of identifying priority actions to be taken in
the short term based on the principles of prevention,
protection and solidarity.5 The European Parliament
stressed that the Lampedusa tragedy should be
a turning point for Europe.6
As requested, the European Commission established the
Task Force Mediterranean with EU Member States and
relevant agencies, including FRA. The task force pre‑
sented its results on 4 December, suggesting 38 actions
which either had already begun or could start in the
short term. These include measures in five areas:
cooperation with third countries; reinforced refugee
protection; the fight against trafficking and smuggling;
better border surveillance; and enhanced solidarity with
Member States dealing with high migration pressure.7
The actions focus on combating international crime
and preventing, in cooperation with third countries,
migrants from embarking on perilous crossings. Little
reference is made to enhancing rescue at sea (pri‑
marily in relation to building capacities in North Africa),
although the task force includes actions to strengthen
border surveillance. Operational cooperation with third
countries must be in full compliance with fundamental
rights. On 20 December, the European Council wel‑
comed the task force’s proposed actions and called for
a full‑fledged effort to implement them. It also asked
the European Commission to report back to the Council
on their implementation.8
A number of the task force’s actions have the potential
to reduce the risk of deaths at sea or otherwise protect
migrants’ fundamental rights, but the opportunity for
a more wide‑ranging policy change in external border
management was missed. Legal avenues for refugees
to reach safety remain very limited, thus keeping them
dependent on smugglers in many cases. Similarly, the
task force is very cautious in exploring joint asylum
processing by EU Member States.
The discussion in the task force raised again the issue of
intra‑EU solidarity, with Member States at the external
borders of the EU calling for more support from other
Member States. Mediterranean EU Member States
highlighted the particular challenges in dealing with
persons who are often traumatised following a perilous
sea crossing, stressing that their humanitarian needs
differ from those of applicants for international protec‑
tion arriving by air. According to Eurostat (migr_asyap‑
pctza, extracted on 2 May 2014), 70 % of all asylum
applications lodged in the EU in 2013 were registered in
five EU Member States. In descending order of applica‑
tions, Germany, France, Sweden, the United Kingdom
and Italy received the lion’s share of the total number of
applications – an argument used to counter the southern
EU Member States’ calls for more solidarity measures.
The issue remained largely unresolved, possibly also
because the situation in the Mediterranean would
require geographically broader international solidarity.
A joint commitment by all Mediterranean states and
with the support of other affected or interested coun‑
tries, both within and without the EU, seems necessary
to address unsafe migration by sea and to reduce the
number of tragedies like the one which occurred off
Lampedusa in October 2013. With its humanitarian and
fundamental rights tradition, the EU would be best
placed to initiate a process aiming to achieve this.
1.2. CJEU provides
authoritative
interpretation of
EU asylum law
This section touches upon a first obstacle in
­implementing EU law. It describes the role of courts,
and of the CJEU in particular, in clarifying and developing
EU law. In the field of asylum, EU law has been adopted
after long and often difficult negotiations, resulting in
compromise texts which are difficult to apply, leaving
the task of clarifying these provisions to the courts
and practitioners. Furthermore, the law’s relationship
to fundamental rights enshrined in the Charter may be
unclear. Despite all harmonisation efforts to date, there
are major differences between how Member States
adjudicate asylum claims.
The second phase of harmonisation of the EU asylum
acquis was completed in June 2013. Although they keep
the main building blocks of the acquis unchanged, the
revisions are important from a fundamental rights
point of view. The most important changes include
the regulation at EU level of the detention of asylum
seekers; access by the police and Europol to the Eurodac
database containing fingerprints of all international
protection applicants; and the strengthening of safe‑
guards for vulnerable persons requesting asylum. In
addition, the revised Dublin Regulation introduces an
early warning mechanism to prevent the deterioration
or collapse of asylum systems, with EASO playing a key
role. The agreed legal texts are complex and often diffi‑
cult to understand, even for specialists. Table 1.1 lists the
three most important changes relating to fundamental
rights for each of the four revised instruments.
While harmonisation is progressing, overcoming the
large differences in practice appears more difficult.
Many EU Member States continued to implement
training, quality initiatives and other measures, with
the support of EASO, the UNHCR and other actors, to
39
Fundamental rights: challenges and achievements in 2013
Table 1.1: EU asylum instruments revised in 2013
Revised
instrument
Original
instrument
Three main changes relating to fundamental rights
Geographical
applicability
Dublin Regula‑
Dublin Regu‑
tion (EU)
lation (EC)
No. 604/2013
No. 343/2003
(recast)
·Prohibits transfer of asylum seekers to Member
States whose asylum system are facing systemic
deficiencies;
·offers children stronger safeguards;
·requires personal interview before transfer deci‑
sions taken
All EU Member States
and Schengen Associ‑
ated Countries (SAC)
Eurodac Regu‑
lation (EU)
No. 603/2013
(recast)
Eurodac Regu‑
lation (EC)
No. 2725/2000
·Gives police and Europol access to Eurodac as
of 2015 to prevent, detect or investigate serious
crimes;
·strengthens language on the duty to inform
data subjects of the purpose of personal data
processing;
·European Commission’s Eurodac evaluation must
also address whether law enforcement’s Eurodac
access has led to indirect discrimination against ap‑
plicants for international protection
All EU Member States
except Ireland, which
is not bound by the
recast version; all
SAC, but further
negotiations required
with them regard‑
ing police access to
Eurodac
Reception
Conditions
Directive
2013/33/EU
(recast)
Reception
Conditions
Directive
2003/9/EC
·Regulates detention of asylum seekers, introduc‑
ing safeguards, but allowing detention of children
under certain circumstances;
·requires that asylum seekers be given effective ac‑
cess to the labour market no later than nine months
from the date of their application;
·introduces new safeguards for vulnerable appli‑
cants, including a duty to put in place a system to
identify vulnerable persons
All EU Member
States, except
Denmark. Ireland and
the United Kingdom
are not bound by the
recast version
Asylum
Procedures
Directive
2013/32/EU
(recast)
·To enhance the quality of first‑instance asylum
procedures, makes new provisions on staff training,
gender‑sensitive procedures, personal interview
and special procedural guarantees for applicants
Asylum Proce‑
with specific needs;
dures Directive
·limits application of accelerated asylum procedures;
2005/85/EC
·strengthens the right to an effective remedy
against a negative asylum decision, requiring that
removal be suspended automatically or, in limited
exceptions, upon request
All EU Member
States, except
Denmark. Ireland and
the United Kingdom
are not bound by the
recast version
Note: Schengen Associated Countries (SAC) are Iceland, Liechtenstein, Norway and Switzerland.
Source: FRA, 2014
enhance the quality of asylum decisions and to bring
Member State practices closer together.9 Nevertheless,
the chances of obtaining asylum still vary consider‑
ably depending on the Member State in which an
application is submitted.
Figure 1.1 compares EU Member States’ national
asylum authorities’ decisions on three nationalities
from which a significant number of persons have
been granted protection by Member States. To ensure
comparability, the graphs include only Member States
with more than 50 decisions for a particular nationality
dating from 2013. Figure 1.1 shows not only that there
are substantial differences between persons granted
40
protection – refugee status, subsidiary protection
status, humanitarian status (i.e. a form of national pro‑
tection) – and those rejected. It also shows significant
differences in applying the definitions of ‘refugees’
and ‘beneficiaries of subsidiary protection’, which
impact on the rights and prospects of integration of
those allowed to stay.
Figure 1.1 must be interpreted with caution, as divergent
practices by national asylum authorities are one, but
not the only, reason for the differences in the statistics.
Other factors include variations in the profile of appli‑
cants from a specific country present in EU Member
States, the incorrect recording of applicants’ nationality
Asylum, immigration and integration
Figure 1.1: National first‑instance asylum authorities’ decisions on three nationalities (%)
Eritrea
100
90
80
70
60
50
40
76
30
20
31
10
0
5
6
MT
IT
Rejected
18
19
20
UK
NL
DE
Refugee status
SE
Subsidiary protection status
FR
Humanitarian status
Somalia
100
90
80
70
60
50
83
40
62
30
47
20
62
49
38
27
10
10
0
IT
NL
Rejected
10
ES
16
16
FI
MT
Refugee status
AT
UK
DE
Subsidiary protection status
BE
DK
SE
FR
Humanitarian status
41
Fundamental rights: challenges and achievements in 2013
Figure 1.1: (continued)
Syria
100
90
80
70
60
50
40
30
20
10
0
MT
PL
BG
Rejected
5
5
5
6
9
10
11
13
13
14
FR
BE
DE
ES
CZ
RO
SE
NL
DK
UK
Refugee status
Subsidiary protection status
17
18
AT
FI
37
40
CY
EL
47
26
HU
IT
Humanitarian status
Notes: The data cover only three nationalities and include only EU Member States with more than 50 decisions taken on each of
these nationalities in 2013. Data on humanitarian status not available for Austria, Belgium, Bulgaria, France and Hungary.
Source: Eurostat, migr_asydcfsta, data extracted on 24 March 2014
and the fact that Dublin transfers may be recorded
as negative decisions.
the past five years in the number of CJEU rulings in the
field, as Figure 1.2 illustrates.
National courts and the CJEU continued to play an
­important role in clarifying and interpreting EU law.
National courts in 2013 submitted eight requests to
the CJEU for preliminary rulings relating to the asylum
acquis.10 These primarily concern the interpretation of
the Qualification Directive. Unlike in previous years, no
new case on the interpretation of the Dublin Regulation
was submitted to the CJEU in 2013.
As Figure 1.2 illustrates, a comparatively large
number of judgments (eight) relates to the interpreta‑
tion of the Dublin Regulation (cases listed in yellow).
Persons in Dublin procedures were also the subject
of two ECtHR judgments on the return of a Somali
from the Netherlands to Italy and of a Sudanese
from Austria to Hungary.11 Although the ECtHR did not
object to either of these transfers, the cases illus‑
trate that the application of EU asylum law continues
to raise questions concerning its compatibility with
basic human rights.
At the same time, in 2013, the CJEU issued seven
judgments, providing guidance on the application
of the Dublin Regulation (four), the Qualification
Directive (one), the Asylum Procedures Directive (one)
and the possibility of prolonging pre‑removal detention
under the Return Directive in case a person in return
procedures seeks asylum (one). Table 1.2 outlines the
main elements of the CJEU rulings.
The increasing role the CJEU plays in interpreting the EU
asylum acquis indicates that practitioners have many
questions on its application. By the end of 2013, the
CJEU had ruled on 20 requests for preliminary rulings
submitted by national courts. Since its first two rulings
on asylum in 2009, there is a clear upward trend over
42
Half of the CJEU judgments listed in Figure 1.2 relate
to the Qualification Directive. As described in the FRA
2012 Annual report, the questions referred to the CJEU
concern clarifications on the situation of Palestinians,
cessation and exclusion from refugee status and the
scope of persons entitled to subsidiary protection. In
addition, two judgments provide more clarity on the
meaning of persecutions on the grounds of religion
and sexual orientation.
The body of CJEU and ECtHR case law related to asylum is
growing. Coupled with very detailed, but often unclear,
Asylum, immigration and integration
Table 1.2: CJEU 2013 preliminary rulings on the EU asylum acquis
Case reference
Judgment
H. I. D. and B. A. v.
Refugee Applica‑
tions Commissioner
and Others, Case
C-175/11, 31 January
Asylum Procedures Directive (2005/85/EC)
Article 23 (3) and (4) of the directive allows Member States to prioritise or process ap‑
plicants from a certain country of origin through accelerated procedures, but the basic
principle and guarantees set out in Chapter II of that directive must be complied with
Mehmet Arslan v.
Policie ČR, Krajské
ředitelství policie
Ústeckého kraje,
odbor cizinecké pol‑
icie, Case C-534/11,
30 May
Return Directive (Directive 2008/115/EC)
The directive does not apply to persons seeking international protection as long as they
are in the asylum procedure
If asylum seekers lodge an application from pre‑removal detention, EU Member States
may keep them in detention if, after an assessment on a case‑by‑case basis of all the
relevant circumstances, the application is found to have been made solely to delay or
jeopardise the enforcement of the return decision and it is objectively necessary to pre‑
vent the person concerned from permanently evading return
Zuheyr Frayeh Halaf
v. Darzhavna agent‑
sia za bezhantsite
pri Ministerskia
savet, Case C-528/11,
30 May
Dublin Regulation (EC) No. 343/2003
If an EU Member State is not indicated as responsible by the criteria in Chapter III of the
regulation, it is allowed to examine an application for asylum even though no circum‑
stances exist which establish that the humanitarian clause in Article 15 of that regula‑
tion is applicable. Such possibility is not conditional on the Member State responsible
under those criteria having failed to respond to a request to take back the asylum seeker
concerned
The Member State in which the asylum seeker is present is not obliged, during the
process of determining the Member State responsible, to ask the Office of the UNHCR to
present its views
MA and Others v.
Secretary of State
for the Home De‑
partment, C-648/11,
6 June
Dublin Regulation (EC) No. 343/2003
Where an unaccompanied minor with no member of his or her family legally present in
the territory of an EU Member State has lodged asylum applications in more than one
Member State, the Member State in which that minor is present after having lodged an
asylum application there is to be designated the ‘Member State responsible’
The CJEU noted that the effect of Article 24 (2) of the Charter on the rights of the child,
in conjunction with Article 51(1) thereof on the Charter’s field of application, is that the
child’s best interests must also be a primary consideration in all decisions adopted by the
Member States relating to the issue at stake in this concrete case
Minister voor
Immigratie en
Asiel v. X, Y and Z,
C-199/12 to C-201/12,
7 November
Qualification Directive (Directive 2004/83/EC) and its application to homosexuals:
·homosexuals can be regarded as a particular social group;
·the criminalisation of homosexual acts per se does not constitute an act of persecu‑
tion, unless applied also in practice;
·when assessing an application for refugee status, the competent authorities cannot
reasonably expect an asylum seeker to return to his or her home country and – to
avoid the risk of persecution – conceal his homosexuality there or exercise reserve in
the expression of his sexual orientation
Bundesrepublik
Deutschland v.
Kaveh Puid, Case
C-4/11, 14 November
Dublin Regulation (EC) No. 343/2003
Dublin transfers to an EU Member State with systemic deficiencies in the asylum proce‑
dure and in the conditions for the reception of asylum seekers are not allowed. In such
cases, the Member State in which the applicant is present does not have to take responsi‑
bility under Article 3 (2) of the Dublin Regulation, but must examine if other Dublin criteria
are applicable
Shamso Abdullahi
v. Bundesasylamt,
Case C-394/12,
10 December
Dublin Regulation (EC) No. 343/2003
An asylum seeker can call into question the transfer to the Member State of first entry into
the EU only by pleading systemic deficiencies in the asylum procedure, and in the condi‑
tions for the reception in that Member State, that provide substantial grounds for believing
that the applicant for asylum would face a real risk of being subjected to inhuman or de‑
grading treatment within the meaning of Article 4 of the EU Charter of Fundamental Rights
Source: http://curia.europa.eu
43
Fundamental rights: challenges and achievements in 2013
Figure 1.2: CJEU preliminary rulings on asylum, by number of cases, 2009–2013
8
7
C-175/11
6
C-179/11
5
C-620/10
4
C-254/11
C-364/11
3
2
1
C-71/11
C-175/08 to
C-179/08
and
C-19/08
C-31/09
C-69/10
C-465/07
C-57/09 and
C-101/09
C-411/10 and
C-493/10
C-277/11
2009
2010
2011
2012
0
C-99/11
C-648/11
C-528/11
C-4/11
C-199/12
to
C-201/12
C-534/11*
C-394/12
2013
Notes: * Refers to Directive 2008/115/EC on returns, but also affects detention of persons seeking international protection.
Cases in yellow relate to the application of the Dublin Regulation.
Source: http://curia.europa.eu
EU legislation, that makes this area of law complex. The
applicable law must be made known to legal practi‑
tioners, to ensure harmonised application throughout
the EU, respectful of the safeguards enshrined in the
ECHR and the Charter of Fundamental Rights.
Even more often, national courts are asked to inter‑
pret and apply the EU asylum acquis. Domestic case
law in EU Member States clarifies how fundamental
rights provisions included in EU legislation are to be
applied in practice. Asylum offices and other parts
of the national administration dealing with asylum
issues usually follow the line taken by domestic higher
courts. Hence, their judgments have a direct impact
on what happens on the ground. The collection and
comparison of national case law in this field is there‑
fore of great value, especially in the asylum area,
where EU law plays a crucial role. In 2013, FRA asked
its Franet partners to communicate up to five judg‑
ments where national courts made use of the Charter
of Fundamental Rights. Around a fifth of the judgments
communicated concerned asylum and migration issues,
making this policy field an area where national courts
are most likely to use the Charter in their reasoning
(see Chapter on the EU Charter of Fundamental Rights).
European and national courts play an essential role in
clarifying and developing EU law. They can also ensure
that due weight is given to fundamental rights. In MA
(C-648/11), for example, the CJEU clarified that states
are to give primary consideration to the child’s best
interests in all decisions relating to the provision of
the Dublin Regulation (Article 6). The guidance courts
44
provide is one important element needed to bridge the
gap between the law and the reality on the ground.
Promising practice
Making national case law on asylum
more accessible
The Irish Refugee Council, in partnership with the
European Council on Refugees and Exiles (ECRE)
and the Hungarian Helsinki Committee, set up
a database collecting case law on the EU asylum
acquis. By allowing searches by theme, it helps
legal practitioners, including asylum lawyers
and judges, identify relevant cases from other
jurisdictions pertaining to a particular issue.
The high download figures confirm the need for
such a tool: from September to December 2013,
11,500 visitors accessed the database 15,071 times,
downloading 1,426 files.
The project was funded by the European
Commission’s European Refugee Fund. Initially
launched in 2012, the database was reinvigorated
in September 2013. At the end of 2013, it contained
633 domestic cases from 17 EU Member States, in
addition to all relevant CJEU cases and selected
cases from the ECtHR. National cases are selected
in the light of their importance in the application
and interpretation of EU asylum law. The database
contains English and original‑language case
summaries as well as the full cases.
Source: www.asylumlawdatabase.eu/en
Asylum, immigration and integration
FRA ACTIVITY
Providing practitioners with guidance
on European asylum, borders and
immigration law
FRA published its second handbook on European
law together with the ECtHR in June 2013. It covers
the field of asylum, borders and immigration in
English, French, German and Italian. The handbook
is intended to assist
practitioners
in
navigating complex
EU legislation and the
substantial CJEU and
ECtHR case law. For
each topic, applicable
EU legislation and
provisions of the ECHR
as well as the body of
case law by the two
European courts are
presented next to
each other, helping
the reader to see where the two systems converge
and where they diverge. In the first six months
after its publication, all 3,000 English‑language
print copies of the handbook were distributed, in
addition to over 2,000 copies in French, German
and Italian. During the same period, the handbook
was accessed on the FRA website 17,000 times.
This illustrates the strong interest among lawyers
and other legal practitioners in such a tool.
A second edition of the handbook, including the
recast activities, and other language versions will
appear in 2014.
Source: http://fra.europa.eu/en/theme/asylum‑migration‑borders
1.3. Member States slow
to implement EU law
safeguards: the
example of effective
return‑monitoring
systems
The second section illustrates the slow pace with which
Member States apply EU legal safeguards in practice. To
do so, it analyses the implementation of a specific pro‑
vision of the Return Directive (2008/115//EC), namely
Article 8 (6) on effective return monitoring. The directive
introduced this new fundamental right safeguard; very
few Member States had effective return‑monitoring
systems in place before 2008.12 Once the directive was
adopted in 2008, almost all EU Member States needed
to amend their national legislation and adapt their
practice to the new rule. These Member State changes
are, however, taking much longer than initially envis‑
aged, given that the deadline to transpose the directive
expired in December 2010.
Five years after the adoption of the Return Directive
and three years after the transposition period expired,
one third of EU Member States still need to put in
place an effective return‑monitoring system. This
time lag illustrates the importance of following up and
supporting Member States in the implementation of
EU rules, particularly when these are new and little
experience is available. The European Commission
carried out important related work in 2013, through its
regular meetings with Member States and bilateral dis‑
cussions with them. It will, however, need to continue
such work in the future.
The Parliamentary Assembly of the Council of Europe
recommended setting up common rules covering “inde‑
pendent, neutral, transparent and effective monitoring
procedures” to extend to the entire removal process.13
The Council of Europe’s Committee for the Prevention
of Torture and Inhuman or Degrading Treatment or
Punishment (CPT) published its report on the monitoring
of a return flight in 2012, commenting on issues such
as escort staff’s use of restraints and the need for a ‘fit
to fly certificate’.14
Third‑country nationals who do not fulfil the conditions
for entering or staying in the EU receive a return deci‑
sion, which the authorities may enforce if it is not com‑
plied with voluntarily. The implementation of a return
decision must respect the principle of non‑refoulement
and take due account of the best interests of the child,
family life and the third‑country national’s health
status.15 Depending on individual circumstances,
EU Member States should facilitate voluntary return
by extending the period for voluntary departure. They
may, for example, consider children attending schools
or family and social ties.16 In 2013, Frontex‑coordinated
operations alone returned 2,159 persons to their home
countries. This is only a small portion of the total number
of forced removals that Member States carried out
directly. Spain, for instance, chartered 153 return flights
and coordinated only six through Frontex in 2012.17
FRA considers that systems of forced return monitoring
are effective if they cover all removal activities, from
before departure to arrival and reception in the destina‑
tion country, and if an organisation – independent from
the authorities enforcing return – carries them out on an
ongoing basis (in other words excluding pilot projects).18
Based on these criteria, the number of EU Member
States providing for effective return monitoring, either
by legislation or cooperation agreements with third
parties, rose from 15 at the end of 2012 to 19 at the
end of 2013 (see Figure 1.3). These mechanisms did not
include regular on‑board observation in all cases in 2013.
45
Fundamental rights: challenges and achievements in 2013
Figure 1.3: Independent forced return monitoring systems, by EU Member State
Independent
monitoring system
in place
No independent
monitoring system
Note: In Germany, return monitoring is in place for departures from some, but not all, airports.
Source: FRA, 2013
In 2013, two EU Member States, Bulgaria and Poland,
established a legal basis for return monitoring. In
Bulgaria, the Ombudsman as well as representatives
of national or international NGOs may be invited to
observe.19 In practice, local NGO monitoring, funded by
the European Return Fund, remained limited in 2013 to
observing the transport from the detention centre to
the airport departure hall. In Poland, NGO monitoring is
a well‑established practice extending also to on‑flight
observations. A new Act on Foreigners provides a legal
basis for return monitoring.20 Malta extended the remit
of the Board of Visitors of Detained Persons to moni‑
toring “proceedings relating to the involuntary return”
at the very end of 2012, thereby granting the board
a wide yet unspecified scope of action.21 In Spain, the
Ombudsman has taken an increasing part in monitoring
several phases of return flights, including on‑board
monitoring of a Frontex‑coordinated operation for
the first time.
46
The United Kingdom, like Ireland, is not bound by
the Return Directive. Nevertheless, it is among the
Member States that provide for effective monitoring.
In Germany, return monitoring is in place for removals
departing from some, but not all, airports. Slovakia
continues to provide in law for the possibility of inde‑
pendent monitoring by NGOs, but it has yet to use this
possibility in practice.
Not included in these 19 EU Member States are those
which implement monitoring mainly by an agency
belonging to the branch of government responsible for
return (Portugal,22 Sweden23) as well as Member States
where monitoring has continued to be carried out on an
informal basis (Finland24). Ombudsmen in Finland and
Sweden are empowered to observe return operations,
but they have not yet done so. Five Member States lack
effective monitoring systems: Croatia, France, Greece,
Italy and Slovenia.
Asylum, immigration and integration
In two of the EU Member States excluded from these 19,
however, the structure and operation of monitoring sys‑
tems were pending finalisation of legislation. Finland
proposed a bill amending the Aliens Act, which assigns
the Ombudsman the duty of monitoring the removal
process. In Greece, based on the law providing for
a monitoring system to be operated under the Greek
Ombudsman,25 the Ombudsman submitted a recom‑
mendation on the functioning of a comprehensive
monitoring system; this will be used as a basis for the
Common Ministerial Committee of the Minister of the
Interior and the Minister of Public Order to regulate the
organisation and function of the system. The recom‑
mendation provides for monitoring by the Ombudsman,
who can cooperate with NGOs acting under his/her
supervision. The Return Fund is expected to finance
such a mechanism. Amendments to the Aliens Act in
Slovenia were prepared in 2013, including provisions
on the monitoring of forced returns by independent
organisations or institutions.26 In late 2013, Swedish
media discussed the need to establish an effective
forced return monitoring system as a requirement to
participate in Frontex operations.
Promising practice
Cooperating with monitoring system
in destination country
Return‑monitoring mechanisms in Germany and
Spain have been able to cover post‑return phases
by cooperating with the Ombudsman office in
Serbia in its function as NPM. For Germany, such
post‑return monitoring was extended in 2013 to
most Frontex‑coordinated returns to Serbia.
How often monitors are on the return flights varies
among EU Member States. In 2013, not all Member
States which had a system in place actually had
a return flight accompanied. Only 11 of the 19 EU
Member States which FRA considers to have effec‑
tive return‑monitoring systems had monitors on board
either systematically or occasionally: Austria, the
Czech Republic, Denmark, Estonia, Hungary, Lithuania,
Luxembourg, the Netherlands, Poland, Spain and the
United Kingdom. In Germany, although no monitors
accompanied return flights, the church‑led monitoring
forum at Düsseldorf Airport continued to cooperate with
the National Preventative Mechanism (NPM) estab‑
lished under the Optional Protocol to the Convention
against Torture (OPCAT) in Serbia, thereby covering
post‑return monitoring. The regional interior ministry
in North Rhine‑Westphalia, including Düsseldorf Airport,
issued a new checklist for preparing, carrying out and
documenting forced returns in 2013.27
Among those EU Member States that have effec‑
tive monitoring systems in place, eight publish the
observers’ findings, at least in part ( Bulgaria, the Czech
Republic, Denmark, Germany, the Netherlands, Poland
and the United Kingdom). Other Member States share
the results internally with the institutions involved.
In Austria, for example, reports are forwarded to
the Volksanwaltschaft (Ombudsperson and National
Prevention Mechanism under OPCAT).
Promising practice
Using synergies between the National
Preventative Mechanism and forced
return monitoring
A legal expert from the National Ombudsman in
Denmark regularly observes return operations, as
part of its role since April 2011 to monitor forced
returns. In 2013, it monitored 15 return operations,
including in seven cases the actual return flight.
The Ombudsman considered that these operations
were all handled in line with fundamental rights.
The Ombudsman’s monitoring role is linked to its
function as the National Preventative Mechanism
(NPM) under OPCAT. Synergies with its mandate
as NPM consist in the build‑up of solid human
rights expertise as a common assessment basis,
knowledge of police and holding facilities and
methodological expertise in inspections. The
Ombudsman publishes annual reports on forced
return monitoring, which include recommendations
to the police relating to, for example, the
documentation of work in connection with forced
returns or the revision of internal guidelines. The
reports are available at: http://en.ombudsmanden.
dk/publikationer/summary/.
A similar practice has evolved in Spain, where the
Ombudsman office in its capacity as NPM monitors
several phases of return operations, including
treatment on the plane, and issues recommendations
concerning forced returns. Annual reports are
available
at:
www.defensordelpueblo.es/es/
Documentacion/Publicaciones/anual/index.html.
Monitors were present on more than half of the joint
return operations (JROs) that Frontex coordinated in
2013, including monitoring the flight on board. Over the
past three years, however, the number of observers has
not increased. This may be partly because the Member
States organise the operations to invite observers,
which may happen systematically, rarely or not at all
depending on the Member State, as well as because of
the availability of observers.
Having an effective forced return monitoring
system in place is a prerequisite for participating in
Frontex‑coordinated JROs. The participation of an
EU Member State without such a system may ultimately
be postponed or cancelled.28 However, eight Member
47
Fundamental rights: challenges and achievements in 2013
Table 1.3: Number of Frontex‑coordinated joint return operations (JROs) with monitors present
Number of JROs
and total number
of returnees
Year
Number of JROs with
monitors present on board
Percentage of
JROs with moni‑
tors present
Percentage of
returnees in
monitored JROs
2011
39 JROs with
2,059 returnees
23 JROs with
1,147 returnees
59
56
2012
38 JROs with
2,110 returnees
23 JROs with
1,059 returnees
60
50
2013
39 JROs with
2,152 returnees
20 JROs with
937 returnees
51
44
Source: Frontex, 2014
States which lack effective monitoring systems,
according to the FRA’s assessment, participated in 36
of a total of 39 joint return flights in 2013. Four of them
(France, Ireland, Italy and Sweden) were responsible
for organising seven of these operations. More than half
of the persons returned in JROs in 2013 (1,215 of a total
2,152 returnees) were returned without monitoring
on the flight.
In some cases, the organising EU Member State invited
observers from other Member States to monitor the
return on its behalf, which is possible under the Code
of Conduct for Joint Return Operations coordinated
by Frontex.29 In 2013, Germany, Sweden, France and
Spain made use of this possibility. The first two invited
observers from Austria, and the last two invited
observers from the Netherlands and Belgium, to
monitor the return operations they had organised. In
addition, Germany, Ireland, and Spain exceptionally
assigned monitors to individual Frontex‑coordinated
flights. They included representatives from the authori‑
ties in Germany and the Ombudsman in Spain.
A European Commission project launched in 2013,
­implemented by the International Centre for Migration
Policy Development, aims to elaborate a training manual
and a set of guidelines to be used by all monitors, based
on existing best practice, and to design a framework for
a European pool of forced return monitors. Frontex and
FRA participate as observers in the project.
In 2013, the availability of guidelines and training for
effective monitoring continued to differ significantly.
Some EU Member States have developed specific
guidelines for observers or refer to guidance provided
in legal and policy documents.30 Others rely on the
experience of the monitoring organisation, which may
not be possible for organisations recently assigned
a monitoring function. The NGO that monitors returns
in Bulgaria, for example, has limited experience in
migration issues. The participating organisations in
Poland each apply their own tools. To date, no specific
48
guidelines or training apply in Malta, which currently
applies the standards used for monitoring detention
conditions. European guidelines and monitoring tools,
including from the Committee on the Prevention of
Torture, which is increasingly focusing on forced returns,
would be useful.31
Specific operational criteria for effective return
­monitoring were set out in the Frontex Code of Conduct
for Joint Return Operations coordinated by Frontex,
adopted on 7 October 2013, which was prepared with
the support of the Consultative Forum of Frontex, com‑
posed of 15 organisations, including EU agencies (such as
FRA and EASO), international organisations and NGOs.
These criteria relate to respect for the fundamental
rights of returnees, the use of coercive measures, fit‑
ness to travel and return monitoring, among others.
The code applies only to Frontex‑coordinated returns,
which amounted to 39 flights with the participation
of 20 Member States in 2013. Frontex’s Fundamental
Rights Officer also started observing forced return
operations in her monitoring function.
1.4. Some Member States
require excessive or
disproportionate fees
for residence permits –
an example of practical
obstacles for migrant
integration
Encouraging and improving migrant integration is an
important tool to build a stronger and inclusive Europe,
but a number of obstacles, which might appear trivial,
such as excessive fees, often stand in the way. Europe
2020: A strategy for smart, sustainable and inclusive
growth underlined the potential benefits of improved
migrant integration in the labour markets.32 This means
Asylum, immigration and integration
closing the gap between migrants and the general
population in regard to employment, education, pov‑
erty and social inclusion.33 Integration as part of building
social cohesion means not only including immigrant, but
also recognising their contributions to social capital and
giving them access to it. Migrants should be enabled
to take full advantage of their potential. As ever more
of the population has an immigrant background, diver‑
sity needs to be embraced within social cohesion. This
means also tackling discrimination, racism and xeno‑
phobia by promoting more equal and diverse societies
(see Chapter 5 on equality and non‑discrimination).
The CJEU has also pointed out that “excessive and
­disproportionately” high fees for residence permits,
in the context of the Long‑Term Residence Directive,
hinder the right of residence and create yet another
obstacle to integration.34 The court noted that
“[c]harges which have a significant financial impact
on third‑country nationals who satisfy the conditions
laid down by Directive 2003/109 for the grant of those
residence permits could prevent them from claiming the
rights conferred by that directive […]”. The court also
noted that “it is apparent from recitals 4, 6 and 12 that
its principal purpose is the integration of third‑country
nationals who are settled on a long‑term basis in the
Member States.”35 Excessive and disproportionate
fees for residence permits may create obstacles that
negatively affect the integration process, which is
beneficial both for achieving the mid- and long‑term
EU social inclusion objectives and for building trust
between migrants and Member States in cohesive
and inclusive societies.
Because integration is a long‑term process, the length
of residence of the migrant in the country is an impor‑
tant factor, as is family unity. The Zaragoza integration
indicators include long‑term residence among those
relevant to active citizenship.36 The proportion of immi‑
grants who have acquired permanent or long‑term
residence status is relevant against this background,
as they mostly enjoy the same socioeconomic rights
and responsibilities as nationals.
The European Parliament has also acknowledged that
long‑term residence entitlement is a key prospect for
integration and that entry and residence must be gov‑
erned by clear, fair and non‑discriminatory rules, which
must conform to the standards of the rule of law at
national and EU levels. When immigrants take up and
use equal rights and responsibilities, they send a strong
signal to themselves and others about their sense of
belonging in the country.37
The EU has harmonised its immigration p
­ rocedure for
certain types of immigration through the adoption
of a number of instruments, namely the Long‑Term
Residence Directive (Directive 2003/109/EC),38
the Single Permit Directive (Directive 2011/98/EU),39
the ‘EU Blue Card’ Directive for highly skilled migrants
(Directive 2009/50/EC)40 and the Researcher Directive
(Directive 2005/71/EC).41 Third‑country nationals can
join their lawfully resident family members, if the condi‑
tions laid down in the Family Reunification Directive are
fulfilled (Directive 2003/86/EC).42 Similarly, once granted
protection status, refugees and their family members
are issued residence permits (Directive 2011/95/EU).43
Family members of EU nationals, including third‑country
nationals, enjoy the right to free movement and resi‑
dence in the EU (Directive 2004/38/EC).44 Students,
school pupils, unremunerated trainees and volunteers45
also enjoy special admission rules, but their stay is
not long‑term and their integration is not particularly
promoted through access to equal treatment rights.
EU legislation does not determine the fee to be paid
for a residence permit, but the Single Permit Directive
states that the fee shall be “proportionate” and “based
on the services actually provided for the processing
of applications and the issuance of permits”. 46 In
practice, disproportionality high fees may create
obstacles to access the rights included in the directive.
Disproportionally high fees and frequent renewals may
add up to considerable sums for large or low‑income
families, an important part of the migrant workforce
which is either low‑skilled or employed in positions not
matching the individuals’ skills.
EU Member States collect the fees for receiving,
­p rocessing and issuing a decision on the residence
status. They often collect an additional fee when issuing
the identity document that proves this residence status.
In addition to the permit fee, if subject to visa obliga‑
tions, the third‑country national may be required to pay
a visa fee. When the permits expire, renewal fees will
have to be paid.
In practice, fees vary substantially depending on the
EU Member State and type of permit. As Figure 1.4
shows, the fee for the same permit can be several
times higher in one Member State than in another.
Member States’ fees for a particular permit may also
vary from applicant to applicant depending on the
length of stay, purpose of residence, processing time
and place of application (for instance at an embassy or
in the Member State, or in a decentralised authority,
such as a state or municipality). Needless to say, the
general price level varies between the Member States.
In the CJEU case referred to above, the court was of
the opinion that the fee may vary depending “on the
type of residence applied for and the verifications
which the Member State is required to carry out in that
respect”, but that they cannot be “excessive in the light
of their significant financial impact” on the nationals
applying for the permit.47 To illustrate the dispropor‑
tionate nature of fees, it compared the lowest fee for
a long‑term residence permit, which was about seven
times as high as the cost of a national identity card.
49
Fundamental rights: challenges and achievements in 2013
Figure 1.4: Overview of fees collected for permits issued to main applicants under six directives, EU-24 (€)
1,000
900
NL
NL
800
700
Euros
600
500
FI
BG, EL
FI
FI
SE
FR, IT, PT
FR, IT, SE
FR, NL
AT, BE, BG*, CY,
DE, EE, EL, ES,
FR*, HR, HU, IT,
LT, LU, LV*, PT,
RO, SK
AT, BE, CY, CZ,
DE, EE, ES, FI,
HR, HU, LT, LU,
LV*, NL, PL, RO,
SE, SI, SK
AT, BE, BG*, CY,
CZ, DE*, EE, EL,
ES, HR, HU, LT,
LV*, LU, PL, PT,
RO, SI, SK
AT, BE, BG, CY,
CZ, DE, EE, EL,
ES, FI, FR, HR,
HU, IT, LT, LV, LU,
NL, PL, PT, RO,
SE, SI, SK
AT, BE, BG, CY,
CZ, DE, EE, EL,
ES, FI, FR, HR,
HU, IT, LT, LU,
LV*, NL, PL, PT,
RO, SE, SI, SK
AT, BE, BG*, CY,
CZ, DE, EE, EL,
ES, HR, HU, IT,
LT, LU, LV*, PL,
PT, RO, SE, SI,
SK
Directive
2011/98/EU
Directive
2003/109/EC
Directive
2009/50/EC
Directive
2011/95/EU
Directive
2004/38/EC
Directive
2003/86/EC
400
300
200
100
0
Notes: The directives covered are the Single Permit Directive (Directive 2011/98/EU), the Long‑Term Residence Directive
(Directive 2003/109/EC), the Directive for Highly Qualified Third‑Country Nationals (Directive 2009/50/EC) and those
for issuing permits to refugees (Directive 2011/95/EU), family members of EU nationals (Directive 2004/38/EC) and of
third‑country nationals (Directive 2003/86/EC).
The Single Permit Directive (Directive 2011/98/EU) does not apply in the Czech Republic, Poland and Slovenia.
The United Kingdom is not included in the table, as it is not bound by any of the directives listed. Ireland is bound only
by Directive 2005/71/EC and Denmark by Directive 2004/38/EC; they are also not included in the table. Malta is not
included in the table.
The fees in EU Member States marked with * extend beyond one unit of the scale: in Bulgaria, the fee varies
between €107 and €230, in Germany between €100 and €250, in France between €19 and €260, in Latvia between
€114 and €359 for Directives 2011/98/EU, 2003/109/EU and 2004/38/EU, and between €85 and €313 for Directives
2009/50/EC and 2003/86/EC.
Source: See Annex ‘Fees (€) for residence permit issued under respective directive, 25 EU Member States, end 2013’
In Hungary, for instance, the fee for the main permit
holder is €60 for a single permit and for highly quali‑
fied third‑country nationals, and €33 for a long‑term
residence permit. In Spain, the main permit holder need
pay only €26 for a single permit, or for permits for
researchers or highly qualified third‑country nationals,
whereas employers contribute €194–€388 to these per‑
mits, depending on the third‑country national’s salary.
In other EU Member States, the fees could be 10 times
as high. In Bulgaria, the fee for a long‑term residence
permit is €511 and €107–€230 for a single permit and for
highly qualified third‑country nationals. In Finland, the
fee for a single permit is €500, and for a highly qualified
third‑country national it is €425. In the Netherlands,
the fee for these permits is €861.
50
The fees under the Free Movement Directive48 are lowest
in Hungary (€3–€32), Romania (€3) and Slovakia (€5)
and highest in Finland (€114) and Latvia (€114–€359).
Under the Family Reunification Directive, 49 they are
lowest in Spain (€10) and highest in Finland (€425).
Slightly more than half of the EU Member States do not
collect fees for issuing residence permits to refugees or
beneficiaries of subsidiary protection.
As Figure 1.4 illustrates, most Member States collect not
more than €200 for these permits, whereas Finland,
Greece and the Netherlands collect considerably higher
amounts for some permits.
Asylum, immigration and integration
Outlook
The risk that migrants including children may die in their
quest for a better life in the EU has yet to be allayed.
The prevention of such tragedies in future is an absolute
priority. The Task Force Mediterranean has prepared
actions to guarantee rescue obligations as part of
surveillance operations; 2014 will show how far they
are successful or if more comprehensive steps need to
be taken. If more far‑reaching decisions are needed,
the year will also make clear whether or not there is
a political will to take them, such as opening up legal
channels for protected entries.
Changes to most pieces of EU legislation in this field
are to be finalised. This is only a first step to intro‑
ducing changes on the ground. The same is true of
fundamental rights safeguards, which have often
been adopted after difficult negotiations. In its sub‑
mission on the future of Home Affairs policies, FRA
highlights the need to focus on ensuring that legisla‑
tion is effective and functions well. EU and Council of
Europe standards on fundamental and human rights,
which are woven into the fabric of EU law, need to be
applied in practice. Border guards, consular officials,
immigration officers and asylum officers, as well as
other persons taking decisions affecting individuals on
a daily basis, need simple and practical tools to help
them in their roles.
In the year to come, the different EU bodies and
­agencies will be called on to contribute to the realisa‑
tion of EU laws according to their mandate and capacity.
It is essential that all those concerned give funda‑
mental rights safeguards a central role: the European
Commission when it supervises and assists Member
States with the transposition and implementation of
EU law; the Council of the European Union when it
discusses, for example, the follow‑up actions taken
by the Task Force Mediterranean; and the European
Parliament when exercising its mandate. Similarly, EU
agencies, including Frontex and EASO in particular, will
be requested to embed fundamental rights ever more
deeply into their daily work with Member States. FRA’s
expertise will continue to be required. The concerted
support of all relevant actors is needed to bridge the
yawning gap between law and practice. This must be
the focus of work in 2014.
51
Fundamental rights: challenges and achievements in 2013
Annex
Fees for residence permits issued under respective directive, 24 EU Member States, 2013 (€)
EU Member State
Table A:
Directive
2011/98/EU
Directive 2003/109/EC
Directive 2009/50/EC
Directive 2011/95/EU
Single
permit
Long‑term
­resident
third‑country
nationals
… and their family
members
Highly
qualified
third‑country
nationals
… and their
family
members
Refugees
… and their
family
members
AT
120 (120)
170
120 (120)
120
120 (120)
0
0
BE
12
12
12
12
12
12
12
BG
107–230
511
107–230
107–230
107–230
23
107–230
CY
120
200
n/a
50
n/a
–
–
CZ
n/a
93 (37)
93 (37)
130
130 (37)
0
112
DE
100–110
135 (55)
100–135 (50–67)
100–250
100–135 (55)
100–135 (55)
100–135 (55)
EE
24–160
64 (24)
64 (24)
86–100
64–65 (24–25)
0
0
EL
150
600
150
150
150
0
0
ES
26
42
42
26
26
10
0
FI
500
156
425 (200)
425
425 (200)
0
0
FR
19–260
260
260
260
260
19
19
HR
98–150
98–150
98–150
98–150
98–150
0
98–150
HU
60
33
33
60
60
0
60
IT
153–173
273 (74)
153–173 (74)
273
153–173 (74)
43
153–173
LT
116
71
116
116
116
0
116
LV
114–359
114–359
114–359 (28–171)
85–313
114–359
78–199
78–199
LU
50
50
50
50
50
0
0
NL
861
152
152
861
228
0
0
PL
n/a
165
93
93
93
12
93
PT
149
321
149
199
149
0
0
RO
180
60
179
180
120
0
179
SE
224
112
112 (56)
224
112 (56)
0
0
SI
n/a
107
12
66
66
0
0
SK
170 (0)
170 (0)
137 (0)
170 (0)
170 (0)
0
0
Notes: Amounts are expressed in euros. Other currencies have been converted to euros according to exchange rates at end 2013. Figures in
brackets are fees for children (normally, but not always, applying to person younger than 18 years).
52
Fees reflected in the table include the total fees for the first application. The total fee includes fees for application, processing, granting and
issuing the permit (identification card) and for Italy also revenue stamps. It does not include visa fees. Fees for renewals are not covered.
In Belgium, an administrative fee is added, which varies according to the municipality. Reduced fees may apply to certain nationalities, for
example in Portugal for nationals of countries belonging to the Community of Portuguese Language Countries (except for East Timor) or in
the Netherlands for Turkish nationals. In Spain, the employers contribute €194 to €388 to the total residence fee, in addition to the fee paid
by the applicant, for a single permit, and for permits for researchers and highly qualified third country nationals.
Asylum, immigration and integration
Table A1: (continued)
Directive 2004/114/EC
Directive 2005/71/EC
Directive
2004/38/EC
Directive
2003/86/EC
Students
School pupils
Unremunerated trainees
Volunteers
Researchers
... and their
family
members
120 (120)
120 (120)
120 (120)
120 (120)
120
120 (120)
56
120 (120)
12
12
0
0
12
12
12
12
107–230
107–230
107–230
n/a
107–230
107–230
9
107–230
34
34
34
34
100
n/a
20
200
93
93 (37)
93 (37)
93 (37)
93
93 (37)
0
93 (37)
80–110
80–110 (40–65)
80–110
80–110
80–250
100–135 (55)
23-29
135 (55)
64–65
64–65
64–65
64–65
96–100
64–65 (24–25)
31–35
64–65 (24–25)
n/a
n/a
n/a
n/a
150
150
0
150 (0)
15
15
15
15
26
26
10
10
300
200
425
425
425
425
114
425 (200)
77
77
77
0
260
260
0
260 (135)
150–98
98–150
98–150
98–150
98–150
98–150
98–150
98–150
60
60
60
60
60
60
3–32
60
153
153
153–173
153
153–173
153–173 (74)
32
153–173 (74)
0
0
0
0
116
116
29
116
85–313
85–313
85–313
114–359
114–359
114–359 (0)
114–359 (28–171)
85–313
50
50
50
50
50
50
0
50
304
304
760
42–604
304
228
42
228
93
93
n/a
n/a
93
93
0
93
149
149
149
149
149
149
15
149
120
120
120
120
120
120
3
179
112
56
112
112
112
112 (56)
0
168 (84)
66
13
66
13
66
66
12
12
40
5
5
5
5
5
5
137 (0)
Family
Family
­members of EU members of
nationals
third‑country
nationals
The United Kingdom is not included in the table, as it is not bound by any of the directives listed. Ireland is bound only by Directive ­2005/71/
EC and Denmark by Directive 2004/38/EC; they are also not included in the table. Malta is not included in the table. In Sweden,
Directive 2004/114/EC is not fully implemented, as only students are included, whereas school pupils, unremunerated trainees and
volunteers are excluded categories.
Member States’ fees for a particular permit may vary depending on the length of stay, purpose of residence, processing time and place of
application (for instance at an embassy or in the Member State).
n/a
not applicable.
53
Fundamental rights: challenges and achievements in 2013
Sources: Austria, Fee Act (Gebührengesetz), BGBl 267/1975 as amended by BGBl I 70/2013, Sections 6 and 8; Belgium, Fees
for electronic residence cards (Prijs van de elektronische vreemdelengenkaarten); Bulgaria, Tariff No. 4 for fees
collected in the system of the Ministry of the Interior under the State Fees Act (Тарифа 4 за таксите, които се събират
в системата на Министерство на вътрешните работи по Закона за държавните такси), 10 March 1998; Croatia,
Act on Amendments to the Administrative Fees Act (Zakon o izmjenama i dopunama Zakona o upravnim pristojbama)
(2010), Official Gazette (Narodne novine) No. 60/2010; Czech Republic , Act No. 634/2004 Coll., on administrative fees,
as amended, Items 116–118 (Zákon č. 634/2004 Sb., o správních poplatcích, ve znění pozdějších předpisů, položky
116–118); Cyprus, Aliens and Immigration Law Cap. 105 (Ο περί Αλλοδαπών και Μεταναστεύσεως Νόμος Κεφ. 105);
Estonia, State Fees Act (Riigilõivuseadus), 22 April 2010; Finland, Decree by the Ministry of the Interior on payments for
services by the Immigration Service (Sisäasiainministeriön asetus Maahanmuuttoviraston suoritteiden maksullisuudesta/
Inrikesministeriets förordning om Migrationsverkets avgiftsbelagda prestationer, No. 1038/2012) and Decree by the
Ministry for the Interior on the grounds of payment for services by the police in 2013 (Sisäasiainministeriön asetus
poliisin suoritteiden maksullisuudesta vuonna 2013/Inrikesministeriets förordning om polisens avgiftsbelagda
prestationer år 2013, No. 850/2012); France, Code of entry and stay of foreigners and asylum rights (CESEDA – Code
de l’entrée et du séjour des étrangers et du droit d’asile), Art. L512-1, L552-1, L522-2; Germany, Residence regulation
(Aufenthaltsverordnung, Kapitel 3 –Gebühren (§§ 44–54);Greece, Law 3386/2005, Codification of Legislation on the
Entry, Residence, and Social Integration of Third Country Nationals in Greek Territory (Κωδικοποίηση νομοθεσίας για την
είσοδο, διαμονή και κοινωνική ένταξη υπηκόων τρίτων χωρών στην Ελληνική Επικράτεια) (OG A’ 212/23 August 2005;
Hungary, Decree of the Minister of Justice and Law Enforcement No. 28/2007 (V. 31.) IRM on the fees of procedures
relating to the entry and stay of persons enjoying free movement and residence and third‑country nationals (28/2007.
(V. 31.) IRM rendelet a szabad mozgás és tartózkodás jogával rendelkező személyek, valamint a harmadik országbeli
állampolgárok beutazásával és tartózkodásával kapcsolatos eljárások díjáról); Italy, Decree of the Ministry of Economics
and Finance of 6 October 2011 on issue and renewal of stay permits (Decreto 6n ottobre 2011 contributo per il rilascio
ed il rinnovo del permesso di soggiorno (11A16810), GU n. 304 del 31-12-2011; Latvia, Regulation No. 1034 on the State
fee for examination of the documents necessary for the requesting a visa, residence permit or the status of a long‑term
resident of the European Community in the Republic of Latvia and the services related thereto (Noteikumi Nr. 1034
‘Noteikumi par valsts nodevu par vīzas, uzturēšanās atļaujas vai Eiropas Kopienas pastāvīgā iedzīvotāja statusa Latvijas
Republikā pieprasīšanai nepieciešamo dokumentu izskatīšanu un ar to saistītajiem pakalpojumiem’); Lithuania, Act
on specific amount of fees and charges and rules on payment and repayment of these fees and charges (Lietuvos
Respublikos Vyriausybės nutarimas Dėl konkrečių valstybės rinkliavos dydžių ir šios rinkliavos mokėjimo ir grąžinimo
taisyklių patvirtinimo), No. 1458, 15 December 2000 (as last amended on 30 October 2013), Art. 2(27); Law on fees
and charges (Lietuvos Respublikos rinkliavų įstatymas), No. VIII-1725, 13 June 2000 (as last amended on 14 May 2013),
Art. 6(7); Luxembourg , Ministry of Foreign Affairs, Grand‑Ducal Regulation of 19 June 2013 amending: 1. the Grand
Ducal regulation amended on 5 September 2008 to implement certain provisions concerning administrative formalities
required by the law of 29 August 2008 on the free movement of persons and immigration; 2. The Grand‑Ducal regulation
amended on 5 September 2008 laying down the terms and conditions for the issuance of a residence permit as an
employee (Règlement grand‑ducal du 19 juin 2013 modifiant 1. le règlement grand‑ducal modifié du 5 septembre 2008
portant exécution de certaines dispositions relatives aux formalités administratives prévues par la loi du 29 août 2008
sur la libre circulation des personnes et l’immigration; 2. le règlement grand‑ducal modifié du 5 septembre 2008 fixant
les conditions et modalités relatives à la délivrance d’une autorisation de séjour en tant que travailleur salarié. Note to
the public: fee for granting residence permits issued to third‑country nationals Note au public : Taxe de délivrance pour
les titres de séjour délivrés aux ressortissants de pays tiers; Netherlands, Passport Fee Decree (Besluit paspoortgelden),
8 November 1991, Art. 6.1.a; Aliens regulation 2000 (sregeling Voorschrift Vreemdelingen) Art. 3.34–3.34k); Poland,
Ordinance of Ministry of Interior and Administration on fees paid by foreigners for issuance and replacement of the
cards and other documents in foreigners’ cases (Rozporządzenie Ministra Spraw Wewnętrznych i Administracji z dnia
18 sierpnia 2003 r. w sprawie opłat pobieranych od cudzoziemców za wydanie i wymianę karty pobytu i innych
dokumentów w sprawach cudzoziemców), 18 August 2003; Act on stamp duty (Ustawa z dnia 16 listopada 2006 r.
o opłacie skarbowej), 16 November 2006; Portugal, Order 1334-E/2010, establishing the schedule of fees and other
extra charges to be levied by the administrative procedures provided for by Law 23/2007 of 4 July (Portaria n.º 1334E/2010, que estabelece a tabela de taxas e demais encargos a cobrar pelos procedimentos administrativos previstos
na Lei n.º 23/2007, de 4 de julho), 31 December 2010; Government Emergency Ordinance No. 194/2002 regarding the
aliens’ regime in Romania (Ordonanţa de urgenţă a Guvernului nr. 194 din 12 decembrie 2002 privind regimul străinilor
în România), 12 December 2002; Slovakia, Act No. 145/1995 Coll. on administrative fees as amended (Zákon č. 145/1995
Z.z. o správnych poplatkoch), 22 June 1995; Slovenia, Administrative fees act (Zakon o upravnih taksah), 26 January 2000,
and subsequent modifications; Spain, Organic Law 4/2000, 11 January, on foreigners’ rights and freedoms in Spain and
their social integration; Sweden, Regulation (1997:691) on fees at missions abroad (Förordning (1997:691) om avgifter vid
utlandsmyndigheterna)
54
Asylum, immigration and integration
Index of Member State references
EU Member State
Page
AT�������������������������������������������������������������������������������� 42, 41, 48, 54
BE�������������������������������������������������������������������������������� 42, 37, 52, 54
BG�������������������������������������������������������������������� 36, 38, 42, 46, 47, 48, 50, 54
CY����������������������������������������������������������������������������������������� 54
CZ������������������������������������������������������������������������������������ 47, 50, 54
DE����������������������������������������������������������������������� 39, 45, 46, 47, 48, 50, 54
DK�������������������������������������������������������������������������������� 40, 47, 50, 53
EE��������������������������������������������������������������������������������������� 47, 54
EL��������������������������������������������������������������������������������� 46, 47, 50, 54
ES������������������������������������������������������������������������ 45, 46, 47, 48, 50, 52, 54
FI��������������������������������������������������������������������������������� 46, 47, 50, 54
FR��������������������������������������������������������������������������� 39, 42, 46, 48, 50, 54
HR������������������������������������������������������������������������������������� 46, 54
HU����������������������������������������������������������������������������� 38, 42, 47, 50, 54
IE������������������������������������������������������������������������������ 40, 46, 48, 50, 53
IT��������������������������������������������������������������� 36, 37, 38, 39, 42, 45, 46, 48, 52, 54
LT��������������������������������������������������������������������������������������� 47, 54
LU��������������������������������������������������������������������������������������� 47, 54
LV��������������������������������������������������������������������������������������� 50, 54
MT����������������������������������������������������������������������������� 36, 46, 48, 50, 53
NL�������������������������������������������������������������������������� 42, 47, 48, 50, 52, 54
PL������������������������������������������������������������������������������ 46, 47, 48, 50, 54
PT������������������������������������������������������������������������������������ 46, 52, 54
RO�������������������������������������������������������������������������������������� 50, 54
SE������������������������������������������������������������������������������ 39, 46, 48, 53, 54
SI��������������������������������������������������������������������������������� 46, 47, 50, 54
SK������������������������������������������������������������������������������������ 46, 50, 54
UK�������������������������������������������������������������������������� 39, 40, 46, 47, 50, 53
55
Fundamental rights: challenges and achievements in 2013
Endnotes
All hyperlinks accessed on 30 April 2014.
15 Directive 2008/115/EC of the European Parliament and of
the Council of 16 December 2008 on common standards and
procedures in Member States for returning illegally staying
third‑country nationals, OJ 2008 L348/98, Art. 5.
1
Platform for International Cooperation on Undocumented
Migrants (PICUM) (2013), Children first and foremost,
February 2013; Vanderbruggen, M., Flemish Refugee Action,
Phelps, J., Detention Action, Sebtaoui, N., France terre
d’asile, Kovats, A., Menedék and Pollet, K., ECRE (2014),
Point of no return: The futile detention of unreturnable
migrants, January 2014, http://pointofnoreturn.eu/
wp‑content/uploads/2014/01/PONR_report.pdf; Human
Rights Watch (2013), World Report 2013. See also the PICUM
Bulletin, providing news on the situation of undocumented
migrants in Europe every two months; the International
Detention Monitor for monthly immigration detention
news; and Refugees and Migrants, Amnesty International.
16 Ibid., Art. 7 (2).
2
FRA (2013), Fundamental rights at Europe’s southern sea
borders, Luxembourg, Publications Office of the European
Union (Publications Office).
20 Ibid., adopted on 12 December 2013, expected to enter into
force on 1 May 2014.
3
United Nations (UN) (2013), Regional study: Management of
the external borders of the European Union and its impact
on the human rights of migrants, Report of the Special
Rapporteur on the human rights of migrants, François
Crépeau, UN Doc A/HRC/23/46, 24 April 2013.
4
Council of the European Union, 3260th Council meeting,
Justice and Home Affairs, Luxembourg, 7–8 October 2013.
5
European Council (2013), Conclusions, 24/25 October 2013,
para. 48.
6
European Parliament (2013), Resolution on migratory flows
in the Mediterranean, with particular attention to the tragic
events of Lampedusa, 2013/2827(RSP), 23 October 2013.
7
European Commission (2013), Communication on the work
of the Task Force Mediterranean, COM(2013) 869 final,
4 December 2013.
18 FRA (2012), Fundamental rights: Challenges and
achievements in 2012, Annual report, Luxembourg,
Publications Office, p. 55.
19 Foreigners in the Republic of Bulgaria Act, Article 39a (2)
(amended, State Gazette 23/08 March 2013), http://lex.bg/
bg/laws/ldoc/2134455296.
21 Malta, L.N. 251 of 2012, Immigration Act (CAP.217), Board of
Visitors for Detained Persons (Amendment) Regulations,
2012, http://justiceservices.gov.mt/DownloadDocument.
aspx?app=lp&itemid=23503&l=1.
22 Portugal, Law 29/2012 of 9 August, ­http://dre.pt/
pdf1sdip/2012/08/15400/0419104256.pdf.
23 Sweden, Aliens Act 2005:716, ­http://sweden.gov.se/
content/1/c6/06/61/22/bfb61014.pdf.
24 In Finland, there has been an ad hoc monitoring system,
based on an oral agreement between the Municipal Police
of Helsinki and the District Court of Helsinki, whereby
a person working at the District Court may on some
occasions join a return flight.
25 Law 3907/2011, Art. 23 (6).
8
European Council (2013), Conclusions, 20 December 2013.
26 Information provided by the Uniformed Police Directorate at
the General Police Directorate (Generalna Policijska uprava,
Uprava uniformirane policije) at the end of 2013.
9
See: EASO (2014 forthcoming), Annual report on the
situation of asylum in the EU 2013; and, for Central Europe,
the UNHCR overview of quality initiatives listed on its
website, www.unhcr‑centraleurope.org/pdf/what‑we‑do/
ensuring‑legal‑protection/refugee‑status‑determination/
quality‑initiatives‑in‑europe.html.
27 Germany, Ministerium für Inneres und Kommunales
des Landes Nordrhein‑Westfalen, Checkliste zur
Vorbereitung, Durchführung und Dokumentation von
Rückführungsmaßnahmen auf dem Luftweg, www.mik.
nrw.de/themen‑aufgaben/auslaenderfragen/erlasse/
aufenthaltsbeendigung.html.
10 Ireland, Supreme Court, HN, C-604/12, 8 March 2013;
Belgium, Cour du travail de Bruxelles, Saciri and
Others, C-79/13, 5 April; Netherlands, Dutch Council
of State, A., C-148/13 to C-150/13, 31 May; Germany,
Verwaltungsgerichtshof Baden‑Württemberg, T., C-373/13,
18 October 2013; Germany, Bayerisches Verwaltungsgericht
München, Shepard, C-472/13, 25 October 2013; Germany,
Oberlandesgericht Bamberg, Qurbani, C-481/13,
15 November 2013; Belgium, Constitutional Court, M’Bodj,
C-542/13, 29 November; Belgium, Cour du travail de
Bruxelles, Abdida, C-562/13, 13 December.
11 ECtHR, Mohamed Hussein and Others v. the Netherlands
and Italy (dec), No. 27725/10, 2 April 2013; ECtHR, Mohamed
v. Austria, No. 2283/12, 6 June 2013.
12 FRA (2013), Fundamental rights: Challenges and
achievements in 2012, Annual report, Luxembourg,
Publications Office; FRA (2012), Fundamental rights:
Challenges and achievements in 2011, Annual report,
Luxembourg, Publications Office.
13 Council of Europe, Parliamentary Assembly,
Recommendation 2028, 22 November 2013, point 7.1.6.
14 Council of Europe, European Committee for the Prevention
of Torture and Inhuman or Degrading Treatment or
Punishment (CPT) (2013), Report to the Government of
the United Kingdom on the visit to the United Kingdom,
Strasbourg, Council of Europe, 18 July 2013.
56
17 Spain, Defensor del Pueblo (2012), Informe Anual 2012 –
Mecanismo Nacional de Prevención de la Tortura, www.
defensordelpueblo.es/es/Mnp/InformesAnuales/
InformeAnual_MNP_2012.pdf.
28 Frontex, Code of Conduct for Joint Return Operations
coordinated by Frontex, Art. 13(2), http://frontex.europa.eu/
assets/Publications/General/Code_of_Conduct_for_ Joint_
Return_Operations.pdf.
29 Ibid., Art. 14(5).
30 See: FRA (2013), Fundamental rights: Challenges and
achievements in 2012, Annual report, Luxembourg,
Publications Office, p. 58.
31 See: Council of Europe, European Committee for the
Prevention of Torture and Inhuman or Degrading Treatment
or Punishment (CPT) (2013), Report to the Government of
the United Kingdom on the visit to the United Kingdom
from 22 to 24 October 2012, Strasbourg, Council of Europe,
18 July 2013. The CPT also monitored a return flight from the
Netherlands to Lagos from 16 to 18 October 2013.
32 European Commission (2010), Communication from the
Commission, Europe 2020: A strategy for smart, sustainable
and inclusive growth, COM(2010) 2020 final, 3 March 2010.
33 Huddleston, T., Niessen, J., and Tjaden, J.D. (2013), Using
EU indicators of immigrant integration, Migration Policy
Group/European Services Network, European Commission
DG Home Affairs, http://ec.europa.eu/dgs/home‑affairs/
e‑library/documents/policies/immigration/general/docs/
final_report_on_using_eu_indicators_of_immigrant_
integration_ june_2013_en.pdf.
Asylum, immigration and integration
34 Council Directive 2003/109/EC of 25 November 2003
concerning the status of third‑country nationals who are
long‑term residents, Art. 4, applicable to those who have
resided in an EU Member State for more than five years,
http://eur‑lex.europa.eu/legal‑content/en/ALL/;jsessionid=
JFtBTC5YkWlBjwvcT3vG6qC2BSFs5hYCBhY9hJVLyVQVnS98vF
k2!359963063?uri=CELEX:32003L0109.
35 CJEU, European Commission v. Kingdom of the Netherlands,
C-508/10, 26 April 2012.
36 The 2010 Zaragoza meeting of the ministers responsible
for integration agreed on these EU indicators, and on
3–4 June 2010 the Justice and Home Affairs Council called
on the Commission to launch a pilot project to evaluate
integration policies. Currently, naturalisation rates,
long‑term residence rates and immigrants among elected
representatives have been proposed as relevant indicators
of active citizenship in the EU.
37
European Parliament, Resolution 2012/2131(INI) of
14 March 2013 on the integration of migrants, its effects
on the labour market and the external dimension of social
security coordination.
38 Council Directive 2003/109/EC of 25 November 2003
concerning the status of third‑country nationals who are
long‑term residents, Art. 4. This applies to those who reside
in an EU Member State for more than five years.
39 Council Directive 2011/98/EU of 13 December 2011 on a single
application procedure for a single permit for third‑country
nationals to reside and work in the territory of a Member
State and on a common set of rights for third‑country
workers legally residing in a Member State, Art. 1. It had to
be transposed by 25 December 2013 (Art. 16).
40 Council Directive 2009/50/EC of 25 May 2009 on the
conditions of entry and residence of third‑country nationals
for the purposes of highly qualified employment, Art. 14.
41 Council Directive 2005/71/EC of 12 October 2005 on
a specific procedure for admitting third‑country nationals
for the purposes of scientific research.
42 Directive 2003/86/EC of 22 September 2003 on the right to
family reunification.
43 Council Directive 2011/95/EU of 13 December 2011 on
standards for the qualification of third‑country nationals
or stateless persons as beneficiaries of international
protection, for a uniform status for refugees or for persons
eligible for subsidiary protection, and for the content of the
protection granted (recast).
44 Directive 2004/38/EC of 29 April 2004 on the right of
citizens of the Union and their family members to move
and reside freely within the territory of the Member States,
Art. 24.
45 Council Directive 2004/114/EC of 13 December 2004 on
the conditions of admission of third‑country nationals for
the purposes of studies, pupil exchange, unremunerated
training or voluntary service.
46 Directive 2011/98/EU of 13 December 2011 on a single
application procedure for a single permit for third‑country
nationals to reside and work in the territory of a Member
State and on a common set of rights for third‑country
workers legally residing in a Member State, Art. 10.
47 CJEU, European Commission v. Kingdom of the Netherlands,
C-508/10, 26 April 2012.
48 Directive 2004/38/EC of 29 April 2004 on the right of
citizens of the Union and their family members to move and
reside freely within the territory of the Member States.
49 Directive 2003/86/EC of 22 September 2003 on the right to
family reunification.
57
2
Border control and visa policy ������������������������������������������������� 61
2.1. EU adopts and proposes new legislation ��������������������� 61
2.2. Number of arrivals in southern Europe rises ��������������� 63
2.3. Large‑scale IT systems in the areas of borders
and visas ������������������������������������������������������������������������� 65
2.4. Towards a focus that includes the fundamental
right aspects of EU visa policy �������������������������������������� 69
Outlook �������������������������������������������������������������������������������������� 71
Fundamental rights: challenges and achievements in 2013
UN & CoE
January
February
March
24 April – The UN Special
Rapporteur on the human
rights of migrants publishes his
findings on the management of
the external borders of the EU
and its impact on human rights
of migrants
25 April – In Savriddin
Dzhurayev v. Russia, the
ECtHR reiterates the obligation
to comply with interim
measures issued by the court
under Rule 39 of the Rules
of the Court
April
May
June
July
August
5 September – In I. v. Sweden,
the ECtHR clarifies that the
right of a state to intervene
in cases lodged by one of its
nationals against another state
set forth in Article 36 of the
ECHR does not apply to cases
where the applicant raises fear
of being returned to his or her
country of nationality
September
October
November
December
EU
17 January – In Mohamad Zakaria, the CJEU confirms that border checks have to be carried
out with full respect for human dignity
January
28 February – The European Commission proposes the Smart Borders package
February
14 March – Visa Information System (VIS) becomes operational in west and central African
countries, 2013/122/EU
21 March – In Shomadi, the CJEU clarifies that a holder of a local border traffic permit
pursuant to Regulation (EC) No. 1931/2006 has a right to move freely within the border
area for a period of three months and to have a new right to a three‑month stay each time
that his or her stay is interrupted (this duration of stay differs from the normal Schengen
rules)
March
9 April – The second‑generation Schengen Information System (SIS II) becomes operational
12 April – The European Commission proposes new rules for Frontex‑coordinated sea
operations
April
May
6 June – VIS becomes operational in east and southern Africa, 2013/266/EU
26 June – Regulation (EU) No. 610/2013 amends parts of the Schengen Borders Code,
strengthening its fundamental rights provisions
June
July
August
5 September – VIS becomes operational in South America, 2013/441/EU
30 September – The last set of regions for introducing VIS are determined
September
7 October – Regulation (EU) No. 1053/2013 establishing a new evaluation and monitoring
mechanism to verify the application of the Schengen acquis is published
17 October – Through its ruling in Michael Schwarz v. Stadt Bochum, the CJEU endorses
storage of biometric data in passports
22 October – Regulation (EU) No. 1052/2013 establishing Eurosur is published
22 October – Regulation (EU) No. 1051/2013 on temporary reintroduction of border control
at internal borders in exceptional circumstances is published
October
14 November – VIS becomes operational in southeast and central Asia, as well as in the
occupied Palestinian territories
November
4 December – European Commission Communication on the work of the Task Force
Mediterranean
19 December – In Koushkaki, the CJEU provides guidance on the refusal of Schengen visas
December
60
2
Border control
and visa policy
In 2013, there was a jump in irregular arrivals of third‑country nationals at the European Union’s (EU) southern sea
borders, as well as pressure on the Greek and Bulgarian land borders from Syrians fleeing civil war. These made
it all the more urgent for the EU to modernise its border control, also in the light of fundamental rights. As part of
the overhaul of its legal framework, the EU adopted important pieces of border control and visa policy legislation
and began deliberations on another five proposals. Although these instruments primarily seek to manage
access to the EU, they all affect fundamental rights. The EU also continued to deploy modern technologies in the
border and visa areas. The risks and benefits, however, that these modern technologies pose for the upholding
of fundamental rights remain largely unexplored. The European border surveillance system, originally intended
for fighting irregular migration, has the potential, if properly implemented, to save the lives of migrants at sea.
The smart borders proposals triggered, for example, fundamental rights concerns over the possibility that the
technology might contribute to mislabelling some third‑country nationals as overstaying their visas.
2.1. EU adopts and
proposes new
legislation
The EU reshaped its legislation in this
field in 2013. It adopted new regulations
and the European Commission proposed
another five. In addition, the second
generation of the Schengen Information
System (SIS II), which holds information
on persons and objects wanted or missing
in the Schengen area, started opera‑
tions on 9 April 2013.1 The application of
the Visa Information System (VIS), which
stores data on third‑country nationals
applying for short‑term visas, continued
to be expanded in Africa,2 South America,3
Central Asia4 and South‑East Asia5 and was
extended to the occupied Palestinian terri‑
tories. The remaining regions for VIS roll‑out
have now also been determined.6 By the
end of 2013, one quarter of all visa applica‑
tions, and two thirds of refused visas, were
registered in VIS.7
Key developments in the area of border control and visa policy
• The EU adopts a regulation on the European border surveillance
system, Eurosur, set up to fight irregular immigration, prevent
cross‑border crime and contribute to the protection of migrants’
lives at sea.
• The European Commission tables the smart border package, which
suggests the fingerprinting of all short‑term visitors to the EU (entry/
exit system) and the creation of a programme to facilitate border
checks for frequent travellers (Registered Travellers Programme).
• SIS II, an upgraded version of the Schengen Information System which
stores biometric data, becomes operational after years of delay.
• The gradual regional roll‑out of the Visa Information
System (VIS) continues.
• The Schengen rules are amended, introducing a new evaluation
and monitoring system, revising rules for the reintroduction of
intra‑Schengen border controls and strengthening fundamental rights.
• Frontex’s Fundamental Rights Officer and Consultative Forum are
operational and advise Frontex on fundamental rights issues.
• The European Commission presents a proposal for a regulation
establishing rules for Frontex‑coordinated sea operations.
61
Fundamental rights: challenges and achievements in 2013
The adopted instruments are listed in Table 2.1. Although
fundamental rights are normally not at the core of these
instruments, they are relevant to fundamental rights.
Table 2.2 lists the new regulations the European
Commission proposed in 2013. They include new
rules for Frontex‑coordinated sea operations, which
Table 2.1: Overview of adopted legislation in 2013
Instrument and subject
Date of adoption
Main issue(s) relating to fundamental rights
26 June
A new article on fundamental rights is
added – Article 3(a);
the provision on the need to respect human dignity
during border checks now includes an express refer‑
ence to vulnerable persons – Article 6(1);
clear rules have been introduced in the annex to the
code on how to deal with asylum applications sub‑
mitted at border‑crossing points shared with third
countries
22 October
The purpose of Eurosur is also to contribute to ensuring
the protection and saving the lives of migrants, which
must be monitored and evaluated;
it includes strong data protection safeguards;
it is prohibited to share information with third countries
which could use them to violate migrants’ fundamental
rights
7 October
The system covers the entire Schengen acquis, thus in‑
cluding its fundamental rights provisions, and, although
these are not explicitly referred to in the regulation,
they will also be assessed during Schengen evaluations
Regulations
Amendments to the Schengen
Borders Code
Regulation (EU) No. 610/2013
Creation of a European border
surveillance system (Eurosur)
Regulation (EU) No. 1052/2013
Revised system to monitor
and evaluate application of the
Schengen acquis
Regulation (EU) No. 1053/2013
Temporary introduction of con‑
22 October
trols at internal EU borders in case
of serious deficiencies of external
border controls
Regulation (EU) No. 1051/2013
The reintroduction of internal border controls is excep‑
tionally allowed if there is a serious threat to public
policy or to internal security, circumscribing limitations
to the free movement of persons within the Schengen
zone
Amendments to visa
requirements
Regulation (EC) No. 1289/2013
A mechanism for suspending the visa waiver in emer‑
gency situations is introduced. It may make it more
difficult for persons in need of protection to leave their
countries
11 December
Other instruments
SIS II becomes operational on
9 April
Council Decision 2013/158/EU and
2013/157/EU
Commission implementing deci‑
sions on the roll‑out of VIS:
2013/122/EU
2013/266/EU
2013/441/EU
2013/642/EU
7 March
5 June
20 August
8 November
Commission implementing deci‑
sion determining the remaining
regions for the VIS roll‑out:
2013/493/EU
30 September
Source: http://eur‑lex.europa.eu
62
7 March
SIS II introduced the possibility of storing fingerprints
and facial images and exchanging such data. It includes
data protection safeguards
Third‑country nationals applying for visas will be
fingerprinted and information on applicants included
in the VIS database. VIS includes data protection
safeguards
When VIS becomes operational, third‑country nationals
applying for visas will be fingerprinted and information
on applicants included in the VIS database
Border control and visa policy
have a substantial bearing on the rights of migrants
and refugees intercepted or rescued at sea. The other
three legislative proposals are usually referred to as
the smart border package, consisting of the entry/
exit system, for the electronic recording of the dates
of entry and exit of third‑country nationals, and the
Registered Travellers Programme, facilitating border
crossing for bona fide travellers. (For more informa‑
tion on these proposals and their fundamental rights
implications, see Section 2.2.)
The new legislation adopted in 2013 and the proposed
legislation have a particular impact on the work of
Frontex as well as on the EU Agency for Large‑Scale
IT [information technology] Systems (eu‑LISA), which
manages VIS and the SIS II central databases, in addi‑
tion to Eurodac (see Chapter 1 on asylum, immigra‑
tion and integration). Under the Eurosur Regulation,
Frontex is jointly responsible with Member States for
maintaining and updating the European Situational
Picture and Situational Picture on the area beyond
EU frontiers and ensuring the smooth running of the
Eurosur coordination network.
Frontex continued its efforts to incorporate fundamental
rights into its activities. The Frontex Fundamental Rights
Officer and its Consultative Forum – a body of 15 organi‑
sations with fundamental rights expertise – contributed
substantially to the mainstreaming of fundamental
rights into Frontex activities. The Fundamental Rights
Officer reviewed and commented on the operational
plans of Frontex‑coordinated operations. Frontex
adopted a Code of Conduct for Joint Return Operations
coordinated by Frontex on 7 October 2013 and pub‑
lished it in November 2013, drawing on input from
the Consultative Forum and the Fundamental Rights
Officer. The Consultative Forum visited the Frontex
operation Poseidon in Greece and Bulgaria to gain
a better understanding of the challenges in operation‑
alising fundamental rights. The European Ombudsman
issued a report in November 2013 following an inquiry
launched on its own initiative seeking to clarify how
Frontex implements fundamental rights.8 Whereas the
European Ombudsman acknowledged that Frontex
adequately addressed 12 out of 13 recommenda‑
tions submitted by her,9 little progress was made on
introducing a complaints mechanism for fundamental
rights infringements in all Frontex‑labelled joint
operations. By the end of the year, Frontex and its
Fundamental Rights Officer were working to establish
an effective monitoring mechanism.
2.2. Number of arrivals in
southern Europe rises
In 2013, an increasing number of persons under‑
took a perilous journey by sea, seeking safety from
persecution and violence or poverty, or to join their
families in Europe. As Figure 2.1 shows, the total
number of third‑country nationals arriving on Europe’s
shores increased substantially in 2013, reaching some
57,000 persons. Increases were particularly visible in
Greece and Italy. Arrivals by sea in the eastern and
central Mediterranean increasingly include Syrians
fleeing domestic conflict. In Italy in 2013, the number
Table 2.2: Overview of EU legislation proposed in 2013
Instrument
New rules for Frontex‑coordinated sea
operations, dealing with sensitive issues
such as where to disembark migrants
rescued at sea
Status at year end
Council and European Parlia‑
ment finalised their position
and started negotiations in
December 2013
Regulation to register entry and exit data
of third‑country nationals (entry/exit
system)
Amendments to the Schengen Borders
Code necessary to introduce an entry/
exit system and a registered traveller
programme
COM(2013) 197 final,
12 April 2013
COM(2013) 95 final,
28 February 2013
Council and European Parlia‑
ment are still defining their
positions
Regulation to establish a registered travel‑
ler programme allowing simplified border
crossing for screened passengers
Abolishing visa requirements for
Moldovans
Commission proposal
COM(2013) 96 final,
28 February 2013
COM(2013) 97 final,
28 February 2013
Proposal tabled
COM(2013) 853 final,
27 November 2013
Source: http://eur‑lex.europa.eu
63
Fundamental rights: challenges and achievements in 2013
of arrivals by sea was the second‑highest in the last
10 years, after the 2011 events in Tunisia and the civil
war in Libya persuaded over 60,000 persons to make
the journey. In 2013, 43,000 persons arrived at Italian
coasts. The authorities continued to collaborate with
international organisations and NGOs which were part
of the Praesidium project, a promising practice identi‑
fied by the FRA report on Europe’s sea borders.
As indicated in last year’s Annual report, in Greece,
increased arrivals by sea mirror a substantial reduc‑
tion of irregular crossings at the Greek land border
in the Evros region, after the deployment of some
1,800 additional police officers at the border and the
December 2012 construction of a 12-kilometre‑long
fence along the land border with Turkey. Amnesty
International and ProAsyl reported collective expul‑
sions of refugees and migrants in the Aegean Sea.10
Many of those who cross come from refugee‑producing
countries, such as Eritrea, Somalia and Syria.11
Irregular land crossings shifted from Greece to Bulgaria.12
In addition, in 2013 the number of irregular migrants
increased substantially, including in Hungary (25,000 per‑
sons). Bulgaria followed Greece’s example by deploying
an additional 1,500 police officers on the border and
debated the construction of a 30-kilometre‑long border
fence,13 covering some 12 % of its land border with
Turkey. As a result of the actions taken, in December 2013
the number of irregular arrivals fell dramatically. Given
that a significant number of persons crossing the
Turkish–Bulgarian land border were Syrians, the ques‑
tion arises whether people who could be in need of
international protection are at risk of being denied entry.
In 2013, in line with the five‑year trend, Spain saw
another decrease in sea arrivals, while the borders
between Spain and Morocco at the cities of Ceuta and
Melilla – the only land borders between Europe and
Africa – experienced a considerable increase in pressure
by both land and sea. As a result, Spanish authorities
introduced additional measures to stop entries over the
fences by adding a razor‑wire barrier to the Melilla fence
and reinforcing surveillance.
According to information provided to FRA by the Spanish
NGO CEAR (Comisión Español de Ayuda al Refugiado),
those who manage to reach Ceuta and Melilla include
persons from Syria, Somalia or Mali who may be in need
of international protection. Only very few applied for
international protection, however, and, of these, citizens
of Syria, Côte d’Ivoire, Cameroon and Mali are said to
have withdrawn their applications.14 Institutions such
as the Ombudsman and the Special Rapporteur on
contemporary forms of racism, racial discrimination,
xenophobia and related intolerance recommended
a policy review to ensure access to asylum and fair
and efficient asylum procedures in the enclaves.15
Border surveillance policies must be implemented with
full respect for fundamental rights, including the prin‑
ciple of non‑refoulement and the prohibition of collective
Figure 2.1: Arrivals of third‑country nationals by sea in four EU Member States, 2003–2013
70,000
60,000
50,000
EL
40,000
ES
30,000
IT
20,000
MT
10,000
Source: National police data, 2013
64
13
20
12
20
11
20
10
20
09
20
08
20
07
20
06
20
05
20
04
20
03
20
20
02
0
Border control and visa policy
expulsion set forth in Articles 18 and 19 of the Charter
of Fundamental Rights. In 2013, the EU strengthened
fundamental rights safeguards by introducing a new
Article 3a into the Schengen Borders Code. It obliges
Member States to apply the code in full compliance with
the EU Charter of Fundamental Rights and with “obliga‑
tions related to access to international protection”. This
creates an enhanced opportunity for the EU to monitor
and evaluate, through the new Schengen governance
system, whether such fundamental rights safeguards are
put into practice. It should help to ensure that no EU funds
are allocated to policies which undermine such standards.
The construction of fences, as undertaken or planned at
sections of land borders in Bulgaria, Greece and Spain,
limits the ability of persons in need of international
protection to seek safety. Many undocumented asylum
seekers who would try to use official border‑crossing
points would be intercepted by third‑country authorities
before reaching the external EU border.
2.3. Large‑scale IT systems
in the areas of borders
and visas
Important steps were taken in 2013 towards the
increased use of modern technologies in the field of
asylum (for more information on Eurodac, see also
Chapter 1 on asylum, immigration and integration),
visa and border management, making it possible to
collect and store information not only on third‑country
nationals but also on EU citizens.
The new version of the Schengen Information System,
SIS II, which contains information on entry bans, became
operational on 9 April. The application of the Visa
Information System (VIS), storing personal data and bio‑
metric identifiers (fingerprints) of visa applicants, was
extended to more than 70 states in Africa, Latin America
and Asia. It also includes information on the invitees
(sponsors of the visa applicant, often EU citizens) but
not their biometric information. The worldwide VIS
roll‑out will continue in 2014.
At the end of 2013, three existing IT systems were
operational.
•• SIS II holds data on persons and objects (such as
banknotes, cars, vans, firearms and identity docu‑
ments) wanted or missing in the Schengen area,
as well as on persons to be denied entry into
Schengen.
•• VIS collects data on third‑country nationals apply‑
ing for short‑term visas.
•• Eurodac primarily tracks persons lodging asylum
requests.
Fingerprints can be stored in all three databases.
Through the Automated Fingerprint Identification
System (AFIS),16 fingerprints can later be compared
with those stored in VIS and Eurodac. The EU Member
States will also use SIS II in the same way, once this
is possible technically.17
In addition, the creation of two further IT systems
was proposed in 2013 as part of a package on ‘smart
borders’. These are:
•• an entry/exit system to record entry and exit data
of each third‑country national at the external bor‑
der and to record who are entitled to stay in the EU
for a period not exceeding three months (short
stay) regardless of whether they are exempted
from a visa or not;
•• a registered travellers programme to allow pre‑vet‑
ted third‑country nationals who are at least 12 years
old and travel frequently to pass through a simpli‑
fied border check with the use of a token.
In spite of the speed of technological and policy devel‑
opments, risks and benefits for fundamental rights
that modern technologies create are not fully known,
particularly in the context of VIS and SIS II. FRA recently
reported on the difficulties EU citizens face when
accessing remedies for data protection violations. One
reason is that only a few civil society organisations are
available to support victims of data protection violations
in complaints procedures.18 Because most of the data
subjects referred to in this chapter are third‑country
nationals, they can be expected to have even less
access to support organisations.
New technologies may also bring with them opportuni‑
ties for improved fundamental rights protection. Using
biometrics minimises mistakes in identification, which
may be an advantage for the person concerned. The
risk of being mistakenly identified as a wanted criminal
should be close to non‑existent. Perhaps there are pos‑
sibilities to optimise SIS II for identification of missing
children, for instance.19 These are topics which are as
yet largely unexplored and affect fundamental rights.
The ‘smart borders’ proposal prompted a discussion on
its fundamental rights impact. The concerns raised relate
to data protection, the right to privacy and whether the
proposal meets its objective of counteracting irregular
migration, since the EU does not have a clear policy on
managing over‑stayers.20 Such a policy should not only
include the removal option. It should also include meas‑
ures to ensure that persons who cannot be removed
are not left in legal limbo but receive, at a minimum,
a certification of postponed removal.21 The European
Data Protection Supervisor, for example, noted in its
opinion that the ‘smart borders’ proposal is costly,
unproven and intrusive.22 NGOs have also pointed to
65
Fundamental rights: challenges and achievements in 2013
the high costs, and have raised concerns in relation to
data protection issues23 and on the proportionality of
collecting large amounts of personal data, including
fingerprints. The entry/exit system would collect the
fingerprints of third‑country nationals who are not
required to hold visas, whereas those required to hold
a visa are already included in VIS. As the database will
provide information only on whether a person has left
the EU on time but not on the location of over‑stayers,
the question arises whether the entry/exit system can
contribute to combating irregular migration.24 However,
VIS includes information on the inviters, which can be
relevant when trying to locate over‑stayers.
A few governments have actively consulted civil society
on the ‘smart borders’ proposals. When requested to
present its views, the Danish Institute for Human Rights
(Institut for Menneskerettigheder) expressed concern
about the necessity of establishing these systems
and recommended assessing how the fundamental
rights of third‑country citizens would be affected. The
institute also highlighted the importance of the right
to information about the proposal and recommended
that this information be made available in the relevant
languages.25 In Finland, the government invited civil
society representatives to its meetings on the smart
borders proposal. The representatives expressed con‑
cerns about the threshold for access to the database
by law enforcement and sought safeguards to ensure
that persons granted a right to stay (such as asylum
seekers) do not appear as over‑stayers.26
Fundamental rights concerns in the context of large
systems and biometrics relate to the necessity and
proportionality of the information and data protection
safeguards in place. Other relevant fundamental rights
are non‑discrimination, the right to asylum, the right
to leave your country, the protection of persons with
disabilities, older persons and children, and the right to
liberty and security of person (if the person is detained
as a consequence of being wrongly entered in SIS II or
the entry/exit system, or not entered, in which case
the departure of the person from the territory of the
EU Member States will not have been registered).27
Table 2.3 illustrates these information technology
systems, the categories of persons they cover, the
type of biometric data stored and the number of
persons they cover.
In addition, VIS (Article 9) and the proposed Registered
Travellers Programme (Article 25) include provisions
on storing the personal data of the person liable to
pay the applicant’s subsistence costs during the stay.
The inviting personcould be either an EU citizen or
a third‑country national. These articles also provide
for storage of information on the main purpose and
destination, duration of travel, intended date of arrival
and departure, border of first entry, place of residence,
66
current occupation and employer, and for students the
name of the educational establishment.
The processes for taking fingerprints need to respect
the dignity of the person. Responding to proposals by
civil society, the Netherlands also plans to introduce
fingerprint‑free identity documents.28 Persons whose
fingertips are burnt or worn down, or who have been
working manually, may be unable to provide finger‑
prints. In this case, the legitimate fundamental rights
concern is if this person will be discriminated against in
the context of decisions such as the granting of a visa. In
the context of VIS, the principle of non‑discrimination is
respected, because, according to the Visa Code, “The fact
that fingerprinting is physically impossible […] shall not
influence the issuing or refusal of a visa”.29 Alternatives
for persons unable to register biometric data should
not be stigmatising or profiling. It is also possible that
technical or human errors cause failures in registering
fingerprints. The German Federal Commissioner for
Data Protection (Datenschutzbeauftragter) has raised
the concern that travellers could appear in wanted
lists by mistake because of technical shortcomings.30
Therefore, data subjects need to be able to challenge
a wrong data entry and to access an effective remedy
(Article 47 of the Charter of Fundamental Rights of
the European Union).
To facilitate return in line with the objective of counter‑
acting irregular migration, the VIS Regulation (Article 31)
and the proposed entry/exit system allow for data to
be shared for return purposes, if protection safeguards
are respected, with countries of origin and three inter‑
national organisations (the International Organization
for Migration, the United Nations High Commissioner
for Refugees and the Red Cross). The Article 29 Data
Protection Working Party pointed to the need for strong
safeguards when data are transferred to third coun‑
tries where data protection standards are inadequate.31
Strong safeguards are indeed necessary, as such data
transfers entail risks for the data subject and their
family members if, for example, information is passed
on to the country of origin that the data subject has
applied for asylum in Europe.
EU Member States may outsource the registration of fin‑
gerprints to external service providers selected on the
private market. The Visa Code makes Member States
accountable for ensuring respect of human dignity and
non‑discrimination against applicants, including in case
of outsourcing, and the Member States need to deter‑
mine how they effectively ensure such accountability.
Large EU IT systems are managed by eu‑LISA. Various
authorities are allowed to search existing and planned
databases. Europol and Eurojust may access certain
categories of alerts in SIS, and Europol may also access
VIS and Eurodac. At a national level, as illustrated in
Table 2.3, such authorities may include law enforcement,
Border control and visa policy
Table 2.3: Current and planned large EU IT databases including biometric data
Data retention
Authorities having access
Biometric
identifier
Persons included
SIS II
Registered
Travellers Pro‑
gramme (RTP)
VIS
Eurodac
Entry/exit system
Third‑country
nationals to be
refused entry;
missing children;
witnesses and
persons required
to appear before
a judge (Conven‑
tion implement‑
ing the Schengen
Agreement,
Articles 96–98)
Third‑country
nationals who ap‑
ply for a short‑stay
visa, valid up to
three months (VIS
Regulation, Arti‑
cle 9; Visa Code,
Article 13)
Asylum seekers
and apprehended
irregular migrants
and refugees (Eu‑
rodac Regulation,
Articles 9 and 14)
Third‑country
nationals who
stay a maximum
of three months,
visa free or as visa
holders (Entry‑exit
proposal, Arti‑
cles 11 and 12)
Frequent travellers
who benefit from
simplified border
checks (RTP pro‑
posal, Article 13)
Fingerprints (SIS II
Regulation, Arti‑
cles 20 and 22)
10 fingerprints if
the applicant is
at least 12 years
old (VIS Regula‑
tion, Articles 5
and 9; Visa Code,
Article 13)
10 fingerprints of
persons who are at
least 14 years old
(Eurodac Regula‑
tion, Articles 9
and 14)
10 fingerprints
of third‑country
nationals who are
at least 12 years
old (entry/exit pro‑
posal, Article 12)
Four fingerprints of
persons who are
at least 12 years
old (RTP proposal,
Articles 5 and 8)
Law enforcement,
judicial authorities
and authorities
responsible for
border controls,
customs checks
and visas (SIS II
Regulation,
Article 27)
Visa authori‑
ties, authorities
responsible for
border controls
and immigration
law enforcement,
and authorities
responsible for in‑
vestigating serious
criminal offences
(VIS Regulation,
Articles 3, 6 and
15–22)
Asylum authori‑
ties, law enforce‑
ment authorities
after 2015 (Eurodac
Regulation, Arti‑
cles 5 and 46)
Border, visa and
immigration au‑
thorities (En‑
try‑exit proposal,
Article 7).
Law enforcement
authorities (follow‑
ing an evaluation
two years after
entry into force,
Entry‑exit propos‑
al, Article 46)
Visa and border
authorities of any
Member State
(RTP proposal, Ar‑
ticles 3(8) and 23)
Depends on the
type of alert,
maximum three
years and pos‑
sibility to prolong
(SIS II Regulation,
Article 29)
Maximum
five years (VIS
Regulation,
Article 23)
Asylum seek‑
ers maximum
10 years; irregular
immigrants maxi‑
mum 18 months
(Eurodac, Arti‑
cles 12 and 16)
181 days for exit‑
ing persons and
five years for
over‑stayers (En‑
try‑exit proposal,
Article 20)
Maximum five
years (RTP pro‑
posal, Article 34)
Source: FRA, 2014
judicial authorities, asylum authorities and authorities
responsible for border controls, customs checks and
visas. EU Member States are required to specify the indi‑
vidual authorities that have permission to search data
and for what purpose.32 Nevertheless, access by law
enforcement authorities to Eurodac and to the planned
entry/exit system has been contentious, because of
possible indirect discrimination against asylum seekers
among other reasons. The police have access to finger‑
prints of all asylum seekers and refugees, but usually
not of all EU citizens or third‑country nationals staying
in their territory, so asylum seekers and refugees are
more likely than other segments of the population to
appear in criminal statistics.33 In the context of the Data
Retention Directive, a request for a preliminary ruling
has been forwarded to the CJEU. The Advocate General
has issued an opinion, saying that the directive itself,
not the Member States, needs to define minimum
guarantees for accessing data and their use. He also
questions the justifications given for keeping the data
67
Fundamental rights: challenges and achievements in 2013
for up to two years (see also Chapter 3 on information
society, respect for private life and data protection).
Critical points relating to large‑scale databases include:
•• Collecting and including information on the data
­subject – the data subject must have access to infor‑
mation on the biometric enrolment process, including
measures in place to control the quality, purpose and
content of the personal data stored in addition to fin‑
gerprints and how long the information will be kept.
•• Storing information on the data subject – it is vital
to ensure the lawfulness of data operations and ac‑
cess to information stored, and that information is
not kept longer than allowed.
•• Authorities’ access to information on the data sub‑
ject – the access to the databases to undertake
searches should be well defined to limit users’
discretion.
The entry/exit system and the Registered Travellers
Programme are planned to operate also through auto‑
mated border controls, usually referred to as ABC‑gates.
This would speed up the entry process. At the end of
2013, 10 EU Member States had introduced automatic
border controls, at least at some of their border crossing
points. Another six Member States were piloting these,
as Figure 2.2 illustrates. Most ABC systems currently use
facial recognition as the main biometric authentication
method. ABC‑gates are normally available only for EU
citizens, with minor exceptions: the Flux programmes in
the Netherlands and ABG+ GE in Germany can be used
by United States (US) citizens, and the United Kingdom
is piloting a Registered Traveller Scheme for selected
non‑EU citizens (Australia, Canada, Japan, New Zealand
and the USA). Finland has also piloted the use of e‑gates
by citizens from Japan, South Korea and the United States.
The automation of border checks affects fundamental
rights, both putting them at risk and offering enhanced
opportunities to safeguard them. EU citizens who enter
Figure 2.2: Deployment of automated border control gates, by EU Member State
Operational
Pilot
Planned
Source: Frontex, 2013
68
Border control and visa policy
the Schengen area, for example, ought not to be exposed
to systematic data checks.34 Germany therefore plans
to introduce a mechanism that is intended to ensure
that passengers are only randomly singled out for fur‑
ther checks, to prevent systematic checks of travellers.
Persons whose fingerprints or faces are not recognised
by the machine are directed to manual checks, but any
assumption that such persons are high‑risk migrants
should be avoided. The gates may also make it more
difficult to identify abducted children, at least if children
can use the gates without border guard intervention,
or to identify victims of trafficking in human beings, as
FRA pointed out in its 2012 Annual report. Substituting
machines for human judgment may, however, also
reduce the risk that individual border guards discrimi‑
nate on the basis of ethnic profiling when carrying out
manual checks. Civil society is rarely consulted in the
planning of ABC gates, but the United Kingdom, for
instance, consults disability groups, which was reported
as a promising practice in the FRA Annual report 2012.
FRA ACTIVITY
Analysing the fundamental rights
aspects of biometric data
FRA will carry out a project analysing the
fundamental rights implications of collecting,
storing and using biometric data in large databases
in the areas of visas, borders and asylum (Eurodac,
VIS and SIS II). The project will contribute to the
discussions on the effectiveness and weaknesses
of these databases from a fundamental rights
perspective. The findings will inform the debate
on the smart borders proposals.
2.4. Towards a focus
that includes the
fundamental right
aspects of EU visa
policy
The European Commission has assessed the compat‑
ibility of Member States’ legislation on the right to
appeal with the EU Charter on Fundamental Rights, its
public consultation on the treatment of visa applicants,
and the suggestion of exploring possibilities for pro‑
tected entry, such as guidelines on a common approach
to humanitarian permits or visas. The results indicate
an increasing trend towards viewing visa policies in
a fundamental rights context.
Regulation 539/2001/EC, listing third countries whose
nationals need a visa to enter the Schengen countries
and those whose nationals are exempted from the
visa requirement, was amended in 2013. Among other
objectives, the amendment allowed for the temporary
reintroduction of visa requirements in emergency
situations. This is when a Member State is faced with
a major increase in the number of irregular immigrants
and unfounded asylum requests originating from a par‑
ticular country. The Member State may then ask the
European Commission to suspend the visa waiver for
that country. When a visa‑exempt third country does
not reciprocally respect the visa‑free regime for the
citizens of all Member States, the amendment also
introduces a revised reciprocity mechanism with a view
to enhancing the credibility of the EU visa policy and to
enhance solidarity among Member States.35
The arguments for introducing such an emergency
clause have been irregular immigration and the submis‑
sion of asylum requests by nationals of Western Balkan
countries with low recognition rates for asylum or pro‑
tection claims.36 The Council of Europe Commissioner
for Human Rights noted that the authorities of some
Western Balkan states are restricting the departure of
individuals whom they consider at risk of applying for
asylum in an EU Member State. He noted that between
2009 and 2012, in the former Yugoslav Republic of
Macedonia (FYROM) alone, about 7,000 citizens were
not allowed to leave the country, because authorities
confiscated the passports of those returned by an
EU Member State.37
Humanitarian visas
The idea of creating a ‘humanitarian’ visa for persons
in need of protection has emerged as a consequence
of the Syrian civil war. In principle, such a visa could be
a long‑term national visa or a short‑term entry visa,
governed by the EU common visa policy, followed by
a permit once the person is in the EU. The Task Force
Mediterranean indicates that the European Commission
will explore possibilities for protected entry in the EU,
possibly including guidelines on a common approach
to humanitarian permits or visas.38 Syrian nationals
are subject to the short‑stay visa requirement to enter
the EU. In addition, 10 EU Member States (Austria,
Belgium, the Czech Republic, France, Germany, Greece,
Italy, Luxembourg, the Netherlands and Spain) require
Syrian nationals to hold an airport transit visa when
passing through the international transit areas of air‑
ports situated on their territory.39 In a completely dif‑
ferent context, the Visa Code40 has developed a specific
scheme facilitating the issuing of visas, for instance for
members of the Olympic family41 (Article 49, Annex XI),
responding to the particular, exceptional and tempo‑
rary needs faced by the Schengen countries hosting
Olympic Games. In its communication on Syria, the
EU High Representative for Foreign Affairs called on
Member States to adopt a generous attitude towards
the granting of humanitarian visas, or entry permits, to
persons displaced by the Syrian crisis who have family
69
Fundamental rights: challenges and achievements in 2013
members in the EU. However, some Member States
have in contrast tightened their practices; for instance,
as of 1 December 2013 Denmark will grant Syrians
a Schengen visa only in extraordinary situations, for
example the life‑threatening illness or death of a family
member resident in Denmark.42
Treatment of visa applicants
EU Member States’ consulates have an obligation to
ensure that applicants are received courteously and
their dignity is respected, according to Article 39
of the Visa Code. DG Home Affairs of the European
Commission launched a public consultation between
25 March 2013 and 17 June 2013 to gather the views and
experiences of the “main users” of the common visa
policy.43 A third of the 1,084 respondents, representing
17 nationalities, rated consular staff as not friendly. In
general, most of the respondents complained that the
employees of visa application centres, who are typically
external service providers, were poorly informed and
that they refused to accept applications for multiple
entry visas. The respondents criticised that centres’
services did not justify the high service charges, as,
for instance, the staff did not take responsibility for
the safety of passports entrusted to them. Embassies
must ensure that external service providers, just like
the embassies themselves, respect human dignity and
the principle of non‑discrimination.44
More than half of the respondents (57 %) said that
obtaining all the necessary supporting documents
required for a visa is difficult. The aim of the EU visa
policy is to facilitate legitimate travel and tackle illegal
immigration. Almost half of the respondents said that
they would avoid travelling to the Schengen area based
upon their experiences with the visa process (46 %),
whereas a slight majority (54 %) said that they would
not be deterred.
The right to appeal a negative visa
decision
From a fundamental rights point of view, a particu‑
larly important EU visa acquis safeguard is the right to
appeal against a visa decision. The following paragraphs
describe developments on this matter, building on the
overview that FRA provided in its 2012 Annual report.45
A visa applicant has the right to appeal if a visa has been
refused, revoked or annulled. 46 After careful analysis
of the information provided by EU Member States on
the right to appeal against a visa refusal/annulment/
revocation, the European Commission concluded that the
right to an effective remedy and to a fair trial enshrined
in Article 47 of the EU Charter of Fundamental Rights
requires that the appeal against a visa refusal, annulment
or revocation includes, at least or as the last instance
of appeal, access to a judicial body. The Commission
70
considered that the Czech Republic, Estonia, Finland,
Hungary, Poland and Slovakia are not compliant with
Article 47 of the Charter combined with the relevant
articles of the Visa Code, as these Member States do
not provide access to a judicial body. Letters of Formal
Notice were sent to these Member States in early 2013.
The amending act introducing into Hungarian law the
possibility for judicial review as a last instance of appeal
against decisions to refuse, revoke or annul a Schengen
visa entered into force on 1 July 2013.47 The initial replies
from the other Member States concerned stated their
disagreement with the analysis made by the Commission.
To make the appeal effective, the applicant needs to
have sufficient information on the grounds for refusal
and the procedures to follow. The timelines, language
and other formal requirements for submitting an appeal
should not pose unsurmountable obstacles.
Table 2.4 illustrates how a few EU Member States address
the right to appeal against a visa decision in practice. It
gives examples of timelines for submitting an appeal
and related language requirements, two important fac‑
tors in deciding whether or not the right to appeal can
be considered to constitute an effective remedy.
The reason for refusing a visa is often that the
EU Member State doubts the applicant’s intention to
leave the Schengen territory before the visa expires.
This was the subject in the Koushkaki case,50 for which
the Administrative Court in Berlin requested a prelimi‑
nary ruling from the CJEU. The CJEU concluded that the
Member State cannot refuse to issue the applicant
a Schengen visa unless one of the grounds for refusal
of a visa listed in the Visa Code is met.51 Refusal on other
grounds based on national legislation is not allowed.
The authorities have wide discretion in the examination
of that application within the provision of the Visa Code,
with a view to ascertaining if one of those grounds for
refusal can be applied to the applicant. When deciding
on the application, the authorities must be satisfied that
there is no reasonable doubt that the applicant intends
to leave the territory of the Member States before the
visa expires. This must be determined in the light of the
general situation in the applicant’s country of residence
and of the applicant’s individual characteristics.
The Highest Administrative Court in Austria has, in
three cases,52 said that consular staff must explain the
concrete reasons why they doubt an applicant intends
to return. Specifying the reasons enables applicants to
submit counter‑evidence, allowing them to benefit from
an effective remedy.
The Supreme Administrative Court of Lithuania ruled
that the conditions for issuing a visa under the Visa
Code must be met.53 According to Lithuanian national
law, multiple‑entry short stay visas may be issued to
a foreigner if he or she owns property in the country.
Border control and visa policy
Table 2.4: Schengen short‑stay visa data, by EU Member State
Short‑term
Schengen
visas refused,
revoked or
annulled
Appeals
against refusal,
revocation or
annulment
Decision
reversed/to be
re‑examined
Language in
which the
appeal has to
be submitted
Timeline for
submitting
the appeal
EU
­Member
State
Short‑term
Schengen
visas issued
DE
1,900,738
162,241
520 judicial
appeals48
3, and
30 out‑of‑court
settlements
German
One month
DK 49
99,894
6,279
787
82
Any language
No deadline
FR
2,337,231
249,018
2,295
786
French
Two months
Sources:Denmark, Justitsministeriet; France, Ministère de la Justice; Germany, Bundesministerium der Justiz und für
Verbraucherschutz
In this case, a visa had been issued on this ground, but
the Border Guards later revoked it because they were
of the view that the uninhabitable property was being
sold by one foreigner to another to abuse the right to
enter Lithuania. The court was of the opinion that, under
Article 34 (2) of the Visa Code, a visa shall be revoked
where it becomes evident that the conditions for issuing
it are no longer met. The court therefore considered
that the sale of the property registered in Lithuania was
sufficient ground to revoke the Schengen visa, because
the purpose of the visa had disappeared.
States referred to in this chapter shows. Because
third‑country nationals have even less access to legal
assistance in complaint processes than EU citizens, they
are in a particularly vulnerable situation. Provided they
can raise the necessary resources, civil society organi‑
sations could be expected to focus increasingly on the
implementation of fundamental rights safeguards in VIS
and SIS II. They might also be expected to act as inter‑
mediaries so that victims of fundamental rights viola‑
tions can make effective use of complaint mechanisms.
The purpose of Eurosur, the European border sur‑
veillance system, includes protecting and saving the
lives of migrants. The implementation of the Eurosur
Regulation, begun in December 2013, will show whether
it will serve only to control immigration or operational,
technical and financial aspects will be put in place
so that it can live up to its life‑saving commitments.
These would include concrete guidance comprised in
the Eurosur handbook, to be adopted by the European
Commission. Statistics on persons rescued at sea will
help monitor Eurosur’s life‑saving commitments.
Discussions on the smart border proposals will con‑
tinue, most likely accompanied by calls for an adequate
assessment of their impact on fundamental rights in
terms of opportunities and risks. Adequate safeguards
to ensure fundamental rights are needed, since all
third‑country nationals coming for a short‑stay visit will
be included in the EU’s large‑scale databases. Through
‘privacy by design’, improved technologies may address
some concerns. To reduce the risk of wrongly labelling
somebody in the entry/exit system as an over‑stayer,
it will be increasingly important that exit registration
can function not only at air borders but also at land and
sea borders. Safeguards should also ensure that, if the
third‑country national has legal permission to stay, the
system is updated.
An additional challenge for the upcoming years is devel‑
oping ways for assessing how the use of modern tech‑
nologies in border management affects fundamental
rights. Victims of data protection violations generally
face difficulties in accessing remedies, as the FRA report
on Access to data protection remedies in EU Member
EU Member States will increasingly have to consider
fundamental rights implications when implementing
visa policies. For example, applicants may more and
more demand better explanations of why their visas
have been refused, so that they can exercise their
right to appeal.
Outlook
71
Fundamental rights: challenges and achievements in 2013
Index of Member State references
EU Member State
Page
AT�������������������������������������������������������������������������������������� 62, 70
BE���������������������������������������������������������������������������������������� 69
BG�������������������������������������������������������������������������������� 61, 63, 64, 65
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CZ�������������������������������������������������������������������������������������� 69, 70
DE�������������������������������������������������������������������������������� 66, 68, 69, 71
DK�������������������������������������������������������������������������������������� 70, 71
EE������������������������������������������������������������������������������������������ 70
EL�������������������������������������������������������������������������������� 63, 64, 65, 69
ES����������������������������������������������������������������������������������� 64, 65, 69
FI����������������������������������������������������������������������������������� 66, 68, 70
FR��������������������������������������������������������������������������������������� 69, 71
HR���������������������������������������������������������������������������������������� n/a
HU������������������������������������������������������������������������������������� 64, 70
IE����������������������������������������������������������������������������������������� n/a
IT����������������������������������������������������������������������������������� 63, 64, 69
LT��������������������������������������������������������������������������������������� 70, 71
LU����������������������������������������������������������������������������������������� 69
LV����������������������������������������������������������������������������������������� n/a
MT���������������������������������������������������������������������������������������� n/a
NL���������������������������������������������������������������������������������� 66, 68, 69
PL������������������������������������������������������������������������������������������ 70
PT����������������������������������������������������������������������������������������� n/a
RO���������������������������������������������������������������������������������������� n/a
SE����������������������������������������������������������������������������������������� 60
SI����������������������������������������������������������������������������������������� n/a
SK������������������������������������������������������������������������������������������ 70
UK������������������������������������������������������������������������������������� 68, 69
72
Border control and visa policy
Endnotes
All hyperlinks accessed on 30 April 2014.
1
2
3
4
Council Decision 2013/158/EU of 7 March 2013 fixing the
date of application of Regulation (EC) No. 1987/2006
on the establishment, operation and use of the second
generation Schengen Information System (SIS II),
OJ 2013 L87, p. 10, http://eur‑lex.europa.eu/legal‑content/
EN/ALL/;jsessionid=jkLmT2SVtjs3pjBvJJs2jyfwwGhKtCsLpv
TZJBzLWzRTvPKJydXT!864384702?uri=CELEX:32013D0158;
Council Decision 2013/157/EU of 7 March fixing the date of
application of Decision 2007/533/JHA on the establishment,
operation and use of the second generation Schengen
Information System (SIS II), OJ 2013 L87, p. 8, http://eur‑lex.
europa.eu/legal‑content/EN/ALL/?uri=CELEX:32013D0157.
European Commission, Commission Implementing
Decision 2013/122/EU of 7 March 2013 determining the
date from which the Visa Information System (VIS) is to
start operations in a fourth and a fifth region, OJ L 2013 65,
p. 35, http://ec.europa.eu/dgs/home‑affairs/what‑we‑do/
policies/borders‑and‑visas/schengen‑information‑system/
index_en.htm; European Commission, Commission
Implementing Decision 2013/266/EU of 5 June 2013
determining the date from which the Visa Information
System (VIS) is to start operations in a sixth and a seventh
region, OJ L 2013 154, p. 8, www.esteri.it/mae/normative/
Normativa_Consolare/Visti/2013/20130606_Commission_
Implementig_Decision_2013_266_EU.pdf.
European Commission, Commission Implementing
Decision 2013/441/EU of 20 August 2013 determining
the date from which the Visa Information System (VIS)
is to start operations in an eighth region, OJ L 223, p. 15,
http://eur‑lex.europa.eu/LexUriServ/LexUriServ.do?uri=
OJ:L:2013:223:0015:0016:EN:PDF.
European Commission, Commission Implementing Decision
2013/642/EU of 8 November 2013 determining the date
from which the Visa Information System (VIS) is to start
operations in a ninth, a tenth and an eleventh region,
OJ L 299, p. 52, http://eur‑lex.europa.eu/LexUriServ/
LexUriServ.do?uri=OJ:L:2013:299:0052:0053:EN:PDF.
5
Ibid.
6
European Commission, Commission Implementing Decision
2013/493/EU of 30 September 2013 determining the third
and last set of regions for the start of operations of the Visa
Information System (VIS), OJ L 268, p. 13, http://eur‑lex.
europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2013:268:001
3:0016:EN:PDF.
7
European Commission, Directorate General Home Affairs
(2013), Overview of Schengen Visa Statistics 20092012, p. 39, http://ec.europa.eu/dgs/home‑affairs/
what‑we‑do/policies/borders‑and‑visas/visa‑policy/docs/
overview_of_schengen_visa_statistics_en.pdf.
8
European Ombudsman (2013), Special Report of the
European Ombudsman in own‑initiative inquiry OI/5/2012/
BEH‑MHZ concerning Frontex, 7 November 2013,
www.ombudsman.europa.eu/en/cases/specialreport.faces/
en/52465/html.bookmark#hl0.
9
European Ombudsman (2013), Decision of the European
Ombudsman closing own‑initiative inquiry OI/5/2012/
BEH‑MHZ concerning the European Agency for the
Management of Operational Cooperation at the External
Borders of the Member States of the European Union
(Frontex), 12 November 2013, www.ombudsman.europa.eu/
en/cases/decision.faces/en/52477/html.bookmark#hl12.
10 Amnesty International (2013), Frontier Europe: Human
rights abuses on Greece’s border with Turkey, available at:
www.amnesty.org/en/library/asset/EUR25/008/2013/en/
d93b63ac-6c5d-4d0d‑bd9f‑ce2774c84ce7/eur250082013en.
pdf; Pro Asyl (2013), Pushed back: Systematic human
rights violations against refugees in the Aegean Sea
and at the Greek–Turkish land border, www.proasyl.
de/fileadmin/fm‑dam/l_EU_Fluechtlingspolitik/
proasyl_pushed_back_24.01.14_a4.pdf.
11 Frontex (2013), FRAN Quarterly, Quarter 1, January–
March 2013, July 2013, pp. 19 and 22; Frontex (2013), FRAN
Quarterly, Quarter 2, April–June 2013, September 2013,
pp. 20–21, 23 and 26.
12 Frontex (2013), FRAN Quarterly, Quarter 1, January–
March 2013, July 2013, p. 5.
13 See United Nations High Commissioner for Refugees
(UNHCR) (2014), UNHCR observations on the current asylum
system in Bulgaria, 2 January 2014, p. 32, www.refworld.
org/docid/52c598354.html.
14 Preliminary figures from the Spanish Ministry of the Interior
(Office for Asylum) provided to FRA by UNHCR Madrid.
15 United Nations (UN), General Assembly (2013), Human
Rights Council, Report of the Special Rapporteur on
contemporary forms of racism, racial discrimination,
xenophobia and related intolerance, Mutuma Ruteere,
UN Doc. A/HRC/23/56/Add.2, 6 June 2013, paras. 44–48;
Spain, Defensor del Pueblo (2013), ‘La Defensora del Pueblo
pide el traslado a la península de los solicitantes de asilo de
Ceuta y Melilla en situación de vulnerabilidad’, statement,
26 December 2013, www.defensordelpueblo.es/es/Prensa/
Notas/contenido_1388063458872.html.
16 European Commission (2011), ‘Frequently asked questions:
The Visa Information System goes live’, Press release,
Brussels, 11 October 2011, http://europa.eu/rapid/
press‑release_MEMO-11-682_en.htm?locale=en.
17 Regulation (EC) No 1987/2006 of 20 December 2006
on the establishment, operation and use of the second
generation Schengen Information System (SIS II),
Art. 22(c), http://eur‑lex.europa.eu/legal‑content/EN/
ALL/?uri=CELEX:32006R1987.
18 FRA (European Union Agency for Fundamental Rights)
(2014), Access to data protection remedies in EU Member
States, Luxembourg, Publications Office of the European
Union (Publications Office).
19 European Commission (2013), Missing children in the
European Union: Mapping, data collection and statistics,
prepared by ECORYS Nederland BV for the European
Commission, DG Justice, pp. 59-60, http://ec.europa.
eu/justice/fundamental‑rights/files/missing_children_
study_2013_en.pdf; Fight against invisibility: To search
and protect unaccompanied minors through the SIS II,
project implemented by Italy under the European Crime
Prevention Network.
20 European Data Protection Supervisor (EDPS) (2013),
Opinion of the European Data Protection Supervisor on
the proposals for a regulation establishing an entry/exit
system (EES) and a regulation establishing a registered
traveller programme (RTP), 18 July 2013; Article 29 Data
Protection Working Party (2013), Opinion 05/2013 on smart
borders, 00952/13/EN, WP206, pp. 11–12, http://ec.europa.
eu/justice/data‑protection/article-29/documentation/
opinion‑recommendation/files/2013/wp206_en.pdf; Initial
appraisal of a European Commission Impact Assessment
Smart Borders Package: European Commission proposal on
the entry/exit data of third‑country nationals crossing the
external borders of the EU, September 2013.
21 FRA (2011), Fundamental rights of irregular migrants in the
European Union, Luxembourg, Publications Office, pp. 27–38.
22 European Data Protection Supervisor (EDPS) (2013),
Opinion of the European Data Protection Supervisor on the
proposals for a regulation establishing an entry/exit system
(EES) and a regulation establishing a registered traveller
programme (RTP), 18 July 2013.
23 France, Cimade (2013), ‘“Frontières intelligentes”: une
nouvelle “invention” de l’Union européenne pour le
73
Fundamental rights: challenges and achievements in 2013
contrôle de ses frontières’, 1 August 2013, www.lacimade.
org/nouvelles/4557---Fronti‑res‑intelligentes----une‑nouvelle---invention---de‑l‑Union‑Europ‑enne‑pour‑le
‑contr‑le‑de‑ses‑fronti‑res.
24 Meijers Committee, Standing committee of experts
on international immigration, refugee and criminal
law (2013), Note Meijers Committee on the Smart Borders
proposals COM(2013) 95 final, COM (2013) 96 final and
COM (2013) 97 final), 3 May 2013, www.commissie‑meijers.
nl/assets/commissiemeijers/CM1307%20Note%20
Meijers%20Committee%20on%20the%20Smart%20
Borders%20proposals.pdf.
25 Denmark, Institut for Menneskerettigheder (2013), Høring
over forslag til forordninger om intelligente grænser,
22 April 2013, J. No. 540. 10/289 69 /HSC/ LUJ J /RF J,http://
menneskeret.dk/files/pdf/Hoeringssvar/2013/50_B_
Forordninger_om_intelligente_gr%E6nser_(smart_
borders)%2022.04.2013.pdf.
26 Finland, Government, EU committee, Division 6, Minutes of
meetings on 4 November 2011 and 21 March 2013.
27 EDPS (2005), Opinion of the European Data Protection
Supervisor of 19 October 2005 of the three proposals
regarding the Second Generation Schengen Information
System (SIS II), OJ 2005 C 91, p. 38, http://eur‑lex.europa.
eu/LexUriServ/LexUriServ.do?uri=OJ:C:2006:091:0038
:0056:EN:PDF; EDPS (2012), Executive summary of the
Opinion of the European Data Protection Supervisor on
the proposal for a Council regulation on migration from
the Schengen Information System (SIS) to the second
generation Schengen Information System (SIS II) (recast),
2012/C 336/06, OJ 2012 C 336, http://eur‑lex.europa.eu/
LexUriServ/LexUriServ.do?uri=OJ:C:2012:336:0010:0012:EN:
PDF; EDPS (2006), Opinion of the European Data Protection
Supervisor on the Proposal for a Council Decision concerning
access for consultation of the Visa Information System
(VIS) by the authorities of Member States responsible for
internal security and by Europol for the purposes of the
prevention, detection and investigation of terrorist offences
and of other serious criminal offences, COM(2005) 600 final,
OJ 2006 C 97, p. 6, http://eur‑lex.europa.eu/LexUriServ/
LexUriServ.do?uri=OJ:C:2006:097:0006:0010:EN:PDF;
Meijers Committee, Standing committee of experts on
international immigration, refugee and criminal law (2013),
Note on the Smart Borders proposals (COM(2013) 95 final,
COM(2013) 96 final and COM(2013) 97 final), 3 May 2013,
www.commissie‑meijers.nl/assets/commissiemeijers/
CM1307%20Note%20Meijers%20Committee%20on%20
the%20Smart%20Borders%20proposals.pdf.
28 Netherlands, Vrijbit (2013), ‘Vingerafdrukweigeraars’
verzoeken met actie “Hoge Hoed” ingrijpen minister’,
15 July 2013, www.vrijbit.nl/dossiers/dossier‑paspoortwet/
item/940-vingerafdrukweigeraars‑verzoeken‑met‑a
ctie‑hoge‑hoed‑ingrijpen‑minister.html; De Nationale
Ombudsman (2013), ‘Principiële weigeraars biometrische
gegevens paspoort’, letter to the Minister of the
Interior and Kingdom Relations, 4 September 2013,
www.nationaleombudsman‑nieuws.nl/sites/default/
files/130904_minbzk_plasterk_weigeraars_biometrische_
gegevens_in_paspoort.pdf; Platform Bescherming
Burgerrechten (2013), ‘Platform Overleg 27 Augustus 2013’,
7 October 2013, http://platformburgerrechten.
nl/2013/10/07/platform‑overleg-27-augustus-2013.
74
31
Article 29 Data Protection Working Party (2013),
Opinion 05/2013 on smart borders, 00952/13/EN, WP206,
pp. 11–12, http://ec.europa.eu/justice/data‑protection/
article-29/documentation/opinion‑recommendation/
files/2013/wp206_en.pdf.
32 List of competent authorities which are authorised
to search directly the data contained in the second
generation Schengen Information System pursuant
to Article 31(8) of Regulation (EC) No 1987/2006 and
Article 46(8) of Council Decision 2007/533/JHA on
the establishment, operation and use of the second
generation Schengen Information System, OJ C 103, p. 3,
http://eur‑lex.europa.eu/legal‑content/EN/TXT/?uri=u
riserv:OJ.C_.2013.103.01.0001.01.ENG; List of competent
authorities the duly authorised staff of which shall have
access to enter, amend, delete or consult data in the Visa
Information System (VIS), OJ 2012 C 79/5, 17 March 2012,
http://eur‑lex.europa.eu/legal‑content/EN/TXT/?ur
i=uriserv:OJ.C_.2013.103.01.0001.01.ENG; Regulation
(EU) No. 603/2013 of the European Parliament and of
the Council on the establishment of ‘Eurodac’ for the
comparison of fingerprints for the effective application of
Regulation (EU) No. 604/2013 establishing the criteria and
mechanisms for determining the Member State responsible
for examining an application for international protection
lodged in one of the Member States by a third‑country
national or a stateless person and on requests for the
comparison with Eurodac data by Member States’ law
enforcement authorities and Europol for law enforcement
purposes, and amending Regulation (EU) No. 1077/2011
establishing a European Agency for the operational
management of large‑scale IT systems in the area of
freedom, security and justice (recast), Art. 5, http://eur‑lex.
europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2013:180:000
1:0030:EN:PDF.
33 UNHCR (2012), An efficient and protective Eurodac,
November 2012, www.unhcr.org/50adf9749.pdf; Meijers
Committee (2012), Note Meijers Committee on the EURODAC
proposal, 10 October 2012.
34 Regulation 562/2006 of 15 March 2006 establishing
a Community Code on the rules governing the movement
of persons across borders (Schengen Borders Code),
Art. 7(2), available at: http://eur‑lex.europa.eu/LexUriServ/
LexUriServ.do?uri=OJ:L:2006:105:0001:0032:EN:PDF.
35 Regulation (EC) No. 1289/2013 of 11 December 2013
amending Regulation 539/2001 listing third countries whose
nationals must be in possession of visas when crossing
the external borders and those whose nationals are
exempt from that requirement, http://eur‑lex.europa.eu/
LexUriServ/LexUriServ.do?uri=OJ:L:2013:347:0074:0080:EN:
PDF.
36 European Asylum Support Office (EASO) (2013), Asylum
applicants from the Western Balkans: Comparative analysis
of trends, push–pull factors and responses, December 2013,
www.refworld.org/docid/53218ead4.html.
37 Council of Europe, Commissioner for Human Rights
(2013), ‘EU border control policies negatively affect
human rights’, press release, 6 November 2013, issued
in conjunction with the launch of Council of Europe,
Commissioner for Human Rights (2013), The right to leave
a country, issue paper, October 2013, p. 48, www.coe.int/t/
commissioner/source/prems/prems150813_GBR_1700_
TheRightToLeaveACountry_web.pdf.
29 Regulation (EC) No. 810/2009 of the European Parliament
and of the Council of 13 July 2009 establishing a Community
Code of Visas (Visa Code), Art. 23(4), http://eur‑lex.europa.
eu/LexUriServ/LexUriServ.do?uri=OJ:L:2009:243:0001:0058:
EN:PDF.
38 European Commission (2013), Communication, on the work
of the Task Force Mediterranean, COM(2013) 869 final,
4 December 2013, http://ec.europa.eu/dgs/home‑affairs/
what‑is‑new/news/news/docs/20131204_communication_
on_the_work_of_the_task_force_mediterranean_en.pdf.
30 Bergmann, K. (2013) ‘Smart Border: EU‑Pläne zur
Grenzüberwachung „verletzen Grundrechte“’, Zeit Online,
5 March 2013, www.zeit.de/digital/datenschutz/2013-03/
schaar‑smart‑border.
39 European Commission, DG Home Affairs (2013), List of third
countries whose nationals are required to be in possession
of an airport transit visa when passing through the
international transit area of airports situated on the territory
Border control and visa policy
of one/some Member States, 10 June 2013, http://ec.europa.
eu/dgs/home‑affairs/e‑library/documents/policies/
borders‑and‑visas/visa‑policy/docs/annex_7b_
atv‑national_lists.en.pdf.
40 Regulation (EC) No. 810/2009 of 13 July 2009 establishing
a Community Code on Visas (Visa Code), Annex 5,
http://eur‑lex.europa.eu/LexUriServ/LexUriServ.do?uri=
OJ:L:2009:243:0001:0058:EN:PDF.
41 Regulation (EC) No. 810/2009 of The European Parliament
and of the Council of 13 July 2009 establishing a Community
Code on Visas (Visa Code), Annex XI, ‘Specific procedures
and conditions facilitating the issuing of visas to members
of the Olympic family participating in the Olympic Games
and Paralympic Games’, Art. 2(2), http://eur‑lex.europa.eu/
LexUriServ/LexUriServ.do?uri=OJ:L:2009:243:0001:0058:EN:
PDF.
42 Denmark, Udlændingestyrelsen (2013), ‘Ny visumpraksis
for personer fra Syrien og Djibouti’, Press release,
29 November 2013, www.nyidanmark.dk/da‑dk/nyheder/
nyheder/udlaendingestyrelsen/2013/ny_visumpraksis_
personer_syrien_djibouti.htm.
43 European Commission, DG Home Affairs (2012), Public
consultation: Improving procedures for obtaining short‑stay
‘Schengen’ visas – summary of responses, 31 July 2013,
http://ec.europa.eu/dgs/home‑affairs/what‑is‑new/
public‑consultation/2013/docs/consultation_025/
report_on_the_results_of_the_consultation_en.pdf.
44 Regulation (EC) No. 810/2009 of 13 July 2009 establishing
a Community Code on Visas (Visa Code), Annex 5, http://
eur‑lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2009:
243:0001:0058:EN:PDF.
46 Regulation (EC) No 810/2009 of 13 July 2009 establishing
a Community Code on Visas (Visa Code), Art. 3 (3),
Art. 34 (7), http://eur‑lex.europa.eu/LexUriServ/LexUriServ.
do?uri=OJ:L:2009:243:0001:0058:EN:PDF.
47 Hungary, Act No XCIII of 2013 amending certain law
enforcement related acts, Official Gazette No. 2013/101 of
20 June 2013, pp. 55270–55317.
48 For administrative appeals, there are no separate statistics
for Schengen visas.
49 Preliminary estimates, not official and validated statistics.
50 CJEU, C-84/12, Koushkaki, 19 December 2013.
51 Grounds for refusal are not providing justification for the
purpose and conditions of the intended stay, or proof
of subsistence for the stay; doubts on the supporting
documents; an alert having been issued in SIS with the
purpose of refusing entry. See the Visa Code, Art. 32(1).
52 Austria, Verwaltungsgerichtshof, 2013/21/0064, Decision,
2 August 2013, www.ris.bka.gv.at/Dokument.wxe?Abfrage=
Vwgh&Dokumentnummer=JWT_2012210158_20130516X00;
Austria, Verwaltungsgerichtshof, 2012/21/0158, Decision,
16 May 2013, www.ris.bka.gv.at/Dokument.wxe?Abfrage=V
wgh&Dokumentnummer=JWT_2013210057_20130802X00;
Austria, Verwaltungsgerichtshof, 2013/21/0057, Decision,
2 August 2013, www.ris.bka.gv.at/Dokument.wxe?Abfrage=
Vwgh&Dokumentnummer=JWT_2013210064_20130802X00.
53 Lithuania, Supreme Administrative Court, A. A. v. Migration
department under the Ministry of the Interior of the
Republic of Lithuania, No. A-858-762/2013.
45 FRA (2012), Fundamental rights: Challenges and
achievements in 2012, Annual report, Luxembourg,
Publications Office, pp. 91–95.
75
3
Information society, respect for private life
and data protection ������������������������������������������������������������������ 81
3.1. Mass surveillance revelations spark global concern ��� 81
3.1.1. European Union takes action in response
to mass surveillance news ������������������������������ 82
3.1.2. EU Member States respond to mass
surveillance ������������������������������������������������������� 84
3.1.3. Requests for information and remedies �������� 85
3.2. EU recognises need for robust data protection
regime ����������������������������������������������������������������������������� 85
3.2.1. Reform of the EU data protection regime ������ 86
3.2.2. Key reforms affect data protection
authorities ��������������������������������������������������������� 87
3.2.3. Raising awareness of data protection ������������ 88
3.2.4. Reform and implementation of
the Data Retention Directive ��������������������������� 88
3.2.5.Google ��������������������������������������������������������������� 89
3.3. Information society: EU moves to protect and
codify fundamental rights online ���������������������������������� 89
3.3.1. The protection of fundamental rights online ���� 90
3.3.2. Codifying fundamental rights online �������������� 90
3.3.3. Corporate social responsibility ������������������������ 90
3.3.4. Intermediary liability ��������������������������������������� 92
3.3.5. Right to an effective remedy �������������������������� 92
3.3.6. Fighting cybercrime ����������������������������������������� 93
Outlook �������������������������������������������������������������������������������������� 95
UN & CoE
January
19 February – The European Court of Human Rights (ECtHR) declares inadmissible an application brought by two
co‑founders of The Pirate Bay, one of the biggest file‑sharing websites. The Neij and Sunde Kolmisoppi v. Sweden
case focuses on the violation of their rights to freedom of expression, because the two were convicted of committing
crimes under the Copyright Act. Sharing files online falls under the right to “receive and impart information” enshrined
in Article 10 of the European Convention on Human Rights (ECHR), but the domestic courts had correctly balanced the
applicants’ right against the need to protect copyright
25–27 February – In the recommendations of the first 10-year review event of the World Summit on the Information
Society, the United Nations Educational, Scientific and Cultural Organization (UNESCO) reaffirms that the same human
rights that apply in the offline world should also be protected online
February
March
17 April – The United Nations (UN) Special Rapporteur on the promotion and protection of the right to freedom of
opinion and expression publishes his annual report, indicating that state communications surveillance undermines the
human rights to privacy and freedom of expression
18 April – The ECtHR rules in M.K. v. France that there were insufficient safeguards for the authorities’ collection,
retention and deletion of the fingerprints of a person suspected, but not convicted. of theft, violating that person’s
right to respect for private life
April
May
4 June – The ECtHR concludes that the Peruzzo and Martens v. Germany case is inadmissible. The court’s order to
collect cellphone material from people convicted of serious crimes and store it in databases in the form of DNA profiles
was necessary and proportionate
11 June – The Council of Europe Committee of Ministers adopts a Declaration on Risks to Fundamental Rights stemming
from Digital Tracking and other Surveillance Technologies
20–21 June – European stakeholders meet in the regional forum European Dialogue on Internet Governance (EuroDIG)
to discuss how to use an open and safe internet to serve the public interest
24 June – The Parliamentary Assembly of the Council of Europe (PACE) Committee on Legal Affairs and Human Rights
adopts the report National security and access to information and urges governments to align their laws in relation to
whistleblowers with a set of global principles
25 June 2013 – The ECtHR finds in Youth Initiative for Human Rights v. Serbia that the refusal of the Serbian intelligence
agency to provide information on the number of people it had subjected to electronic surveillance violated the right of
the applicant non‑governmental organisation (NGO) to receive information
June
16 July – The ECtHR finds in Nagla v. Latvia that the seizure of data storage devices kept in a journalist’s home violated
the right to freedom of expression, including journalists’ right not to disclose their sources
July
August
September
10 October – The ECtHR rules in Delfi AS v. Estonia that finding an internet news portal liable for offensive online
comments of its readers is a justified and proportionate restriction on the portal’s right to freedom of expression
22–25 October – The first focus session on human rights on the internet in the Internet Governance Forum ends with
a call to enhance its role in the field of human rights protection on the internet, as well as for the states to consult
stakeholders during the legislative procedure
October
8 November – The ministers responsible for media and information society in the Council of Europe member states
adopt a political declaration and three resolutions on internet freedom, the role of media in the digital age and the
safety of journalists at the Council of Europe Ministerial Conference in Belgrade
November
18 December – The United Nations General Assembly adopts a resolution on the right to privacy in the digital age
December
EU
11 January – The European Cybercrime Centre (EC3) officially opens at the European Union (EU) law enforcement agency
(Europol)
January
7 February – The European Commission publishes a Joint Communication on Cyber Security Strategy of the European Union:
an Open, Safe and Secure Cyberspace
7 February – The European Commission adopts a proposal for a directive on measures ensuring a high common security
level across EU network and information systems
February
19 March – The Court of Justice of the European Union (CJEU) adopts its judgment in the Sophie in ’t Veld MEP v. European
Commission case about the transparency of Anti‑Counterfeiting Trade Agreement (ACTA) documents, by annulling the
Commission Decision of 4 May 2010, which refused to grant access to documents
27 March – The European Commission proposes a new regulation on Europol, which suggests amending data protection
safeguards
March
24 April – The European Commission adopts the green paper Preparing for a fully converged audiovisual world: Growth,
creation and value
24 April – The European Parliament Committee on Civil Liberties, Justice and Home Affairs (LIBE) rejects the EU Passenger
Name Record (PNR) proposal
April
13 May – The European Commission presents plans for the Global Internet Policy Observatory to monitor internet‑related
policy and regulatory and technological developments across the world
30 May – In Commission v. Sweden, the CJEU orders Sweden to pay a €3,000,000 lump sum for its delay in transposing the
Data Retention Directive into national law
May
10 June – Vice‑President Viviane Reding sends a letter to the United States (US) Attorney General to enquire about PRISM
and other surveillance programmes
13 June – In Michael Schwarz v. Stadt Bochum, the CJEU concludes that the interference of security features and biometrics
in EU Member State passports and travel documents with personal data protection is proportionate
25 June – The Council of the European Union approves the comprehensive text delivered by the Friends of the Presidency
Group on Cyber Issues regarding the implementation of the European Strategy for Cybersecurity
June
4 July – The European Parliament passes a resolution instructing LIBE to conduct an in‑depth inquiry into the US
surveillance programmes
July
12 August – The Directive on Attacks against Information Systems is adopted; it will strengthen the protection of personal
data by reducing the ability of cybercriminals to abuse victims’ rights with impunity
August
11 September – The European Commission presents a proposal for a regulation laying down measures concerning the
European single market for electronic communications and to achieve a connected continent
September
21 October – LIBE adopts its report on the General Data Protection Regulation and the separate directive for the law
enforcement sector
October
November
10 December – The CJEU Advocate General issues his opinion on the Commission v. Hungary case, suggesting a breach of
the independence of the Hungarian data protection authority (DPA)
12 December – In his opinion, the CJEU Advocate General concludes that the Data Retention Directive is incompatible with
the EU Charter of Fundamental Rights
18 December – The rapporteur of the LIBE inquiry committee on mass surveillance suggests, in his preliminary conclusions,
suspending the Safe Harbour and the Terrorist Finance Tracking Programme (TFTP) agreements, creating a European data
cloud and guaranteeing judicial redress for EU citizens whose data are transferred to the United States of America (USA)
December
3
Information society,
respect for private life
and data protection
Unprecedented revelations about the United States’ and United Kingdom’s mass surveillance of global
telecommunication and data flows captured international newspaper headlines for weeks in 2013. This put
the issue of privacy in the public spotlight and highlighted the gap between rapidly evolving technologies and
current laws safeguarding the right to privacy. The revelations occurred while the EU was in the midst of its most
important data protection legislation reform in 20 years and, by forcefully underlining the need for a strong data
protection framework, marked a turning point in the debate. Disturbed by these revelations, EU and Member
State policy makers took immediate steps to shore up data protection rules, while civil society pushed for
greater transparency and more effective remedies before data protection authorities and courts. In reaction to
the revelations, the EU legislature successfully incorporated significant reforms into the data protection reform
package. Despite some progress, the reform had not been finalised by the end of 2013.
3.1. Mass surveillance
revelations spark
global concern
Beginning in June 2013, United States National Security
Agency (NSA) contractor Edward Snowden leaked docu‑
ments to several media outlets, revealing operational
details of global surveillance programmes carried out
by the NSA and by the United Kingdom’s Government
Communications Headquarters (GCHQ). Of particular
interest in the EU, the global programmes targets
included EU institutions and Member States’ embassies.1
Just weeks before these revelations sent shockwaves
across the EU and the globe, the United Nations Special
Rapporteur on the promotion and protection of the right
to freedom of opinion and expression, noting this gap
between rapidly evolving technologies and current
laws safeguarding the right to privacy, pointed out
specific shortcomings, such as a lack of judicial over‑
sight of surveillance measures (see also Chapter 10
on EU Member States and international obligations).2
The UN General Assembly, echoing the calls of the UN
Special Rapporteur, asked member states to review
their legislation on such surveillance to ensure that it
Key developments in the area of information society,
respect for private life and data protection
• Revelations of mass surveillance reverberate across the
areas of information society, privacy and data protection.
These revelations cause civil society organisations to
protest and call for better protection; they also incite EU and
EU Member State policy makers and legislators to adopt
more robust measures, tighten legislative protection and
propose greater data protection safeguards.
• As a result of the revelations, the UN General Assembly
adopts an unprecedented text on the protection of privacy.
• The revelations – which are made while the EU is in the midst
of its biggest data protection legislation reform in 20 years –
make clear that the fundamental rights protection in the
digital world needs greater attention.
• The European Parliament adopts its report on the data
protection reform package, but the reform is delayed in the
Council of the European Union.
was aligned with their international human rights obli‑
gations. It adopted a resolution on the right to privacy
in the digital age in December 2013.3
81
Fundamental rights: challenges and achievements in 2013
As media published the first revelations, the Council of
Europe Committee of Ministers adopted a Declaration
on Risks to Fundamental Rights stemming from Digital
Tracking and other Surveillance Technologies. The dec‑
laration said: “legislation allowing broad surveillance of
citizens can be found contrary to the right to respect of
private life. These capabilities and practices can have
a chilling effect on citizen participation in social, cultural
and political life and, in the longer term, could have
damaging effects on democracy.”4 On 24 October 2013,
the Council of Europe Commissioner for Human Rights
published a human rights comment 5 highlighting
the threats to human rights and the right to privacy
when secret surveillance spreads. In addition, min‑
isters responsible for media and information society
adopted a political declaration in November 2013,
underlining that “any […] surveillance for the purpose
of the protection of national security must be done
in compliance with existing human rights and rule
of law requirements”.6
Table 3.1 details the most publicised surveillance
­programmes, but subsequent revelations made clear
that these represent just the ‘tip of the iceberg’.7
3.1.1.
European Union takes action in
response to mass surveillance
news
“The surveillance scandals have been a wake‑up call, and
Europe is responding.”
Vice‑President Viviane Reding, ‘A data protection compact for
Europe’, 28 January 2014, Speech/14/62, available at: http://
europa.eu/rapid/press-release_SPEECH-14-62_en.htm
The European Parliament, European Commission and
Council of the European Union reacted promptly to
the Snowden revelations, taking a number of steps
that expressed concern about the mass surveillance
programme, sought clarification and worked to rebuild
trust, for example, in data flows. Table 3.2 summarises
these measures. The European Parliament instructed
LIBE to conduct an inquiry.8 Its draft report, finalised in
January 2014, launches ‘a European digital habeas corpus
for protecting privacy’, based on eight concrete actions.
These include the adoption of the EU data protection
reform package by 2014 (for more on the data protec‑
tion reform package, see Section 3.2), the enhanced
protection of whistleblowers, the development of
Table 3.1: Main surveillance programmes
Name of the
programme
Description of alleged programme
PRISM
Provides the NSA with direct access to the central servers of nine leading United States
internet companies, allowing them to collect customer material including search histories,
the contents of emails, file transfers and live chats.
XKeyscore
Allows NSA analysts to search, without prior authorisation, through vast databases contain‑
ing emails, online chats and the browsing histories of millions of internet users, as well as
their metadata.
Upstream
Collection programmes operated by the NSA, consisting of warrantless wiretapping of
cable‑bound internet traffic.
Bullrun
Decryption programme run by the NSA in an effort to break through widely used encryption
technologies, allowing the NSA to circumvent encryption used by millions of people in their
online transactions and emails.
MUSCULAR
Joint programme operated by the NSA and GCHQ to intercept, from private links, data traffic
flowing between major platforms such as Yahoo, Google, Microsoft Hotmail and Windows
Live Messenger.
Tempora
Upstream surveillance activity allowing GCHQ to access large fibre optic cables that carry
huge amounts of internet users’ private communications and then share them with the NSA.
Edgehill
Decryption programme, operated by GCHQ, intended to decode encrypted traffic used by
companies to provide remote access to their systems.
Sources:Moraes, C. (2013), Working Document 1 on the US and EU surveillance programmes and their impact on EU citizens’
fundamental rights, PE524.799v01-00, Brussels, 11 December 2013; Bowden, C. (2013), The US surveillance programmes
and their impact on EU citizens’ fundamental rights, study for the European Parliament, PE 474.405, Brussels,
September 2013
82
Information society, respect for private life and data protection
a European strategy for greater IT independence and
the suspension of specific US–EU agreements.
The 2013 draft report, adopted in spring 2014,9 focuses
on Decision 2000/520/EC, the so‑called Safe Harbour
Decision,10 which provides the legal basis for the transfer
of personal data from the EU to US companies. These
transfers rest on the Safe Harbour Privacy Principles,
and on the Terrorist Finance Tracking Programme (TFTP),
the first of which guarantees that the US companies
registered offer the ‘adequate’ level of privacy protec‑
tion that EU law requires.
The Council of the European Union set up an ad hoc EU–US
working group to establish the facts about the US sur‑
veillance programmes and their impact on fundamental
rights in the EU and on the personal data of EU citizens.
On 27 November 2013, the working group published its
findings.11 As well as describing the data protection guar‑
antees in place, the report highlights the discrepancies
between the US and the EU data protection legal regimes.
On 27 November 2013, based on the working group’s
report, the European Commission published two com‑
munications on the consequences of the revelations.12
The first, the Communication on the Functioning of
the Safe Harbour, assesses the implementation of the
Safe Harbour Decision and recommends a number
of improvements.13 The communication suggests, for
example, that companies inform their customers when
US public authorities are allowed to collect and process
data for reasons of national security, public interest
or law enforcement.
The second, the Communication on Rebuilding Trust
in EU–US Data Flows,14 assesses the large‑scale sur‑
veillance’s impact on various EU–US agreements. It
questions the necessity and proportionality of the
US surveillance programmes in the context of national
security. The communication highlights the relevance
of the data protection reform package in this context.
Once adopted, the reform will enhance EU citizens’ data
Table 3.2: Key EU documents adopted in the aftermath of the mass‑surveillance revelations
Body
Title
Reference
European
Commission
10 June 2013 – Vice‑President Viviane Reding requests explanations
of and clarifications on the PRISM programme
European
Commission
19 June 2013 – Vice‑President Reding and Commissioner Cecilia
Malmström send a letter to US authorities expressing their concerns
about the consequences of US surveillance programmes for the
fundamental rights protection of Europeans
European
Parliament
Resolution of 4 July 2013 on the US NSA surveillance programme,
surveillance bodies in various Member States and their impact on
EU citizens’ privacy
P7_TA(2013)0322
European
Parliament
Resolution of 23 October 2013 on the suspension of the TFTP agreement
as a result of US NSA surveillance
P7_TA(2013)0449
Council of the Report of 27 November 2013 on the findings by the EU Co‑chairs of the
ad hoc EU–US Working Group on Data Protection
European
Union
16987/13
European
Commission
Communication from the Commission to the European Parliament and
the Council: Rebuilding trust in EU–US data flows
COM(2013) 846 final of
27 November 2013
European
Commission
Communication from the Commission to the European Parliament and
the Council on the functioning of the Safe Harbour from the perspec‑
tive of EU citizens and companies established in the EU
COM(2013) 847 final of
27 November 2013
European
Commission
Communication from the Commission to the European Parliament and
the Council on the joint report from the Commission and the US
Treasury Department regarding the value of TFTP provided data
COM(2013) 843 final of
27 November 2013
European
Parliament
Draft report of 8 January 2014 on the US NSA surveillance programme,
surveillance bodies in various Member States and their impact on EU
citizens’ fundamental rights and on transatlantic cooperation in justice
and home affairs
PE526.085v02-00
Source: FRA, 2013
83
Fundamental rights: challenges and achievements in 2013
protection guarantees (for more on data protection
reform, see Section 3.2). It also suggests improving the
Safe Harbour Decision and enhancing the safeguards it
provides in the context of law enforcement cooperation.
It calls for the strengthening of privacy on the internet,
which should not undermine the freedom, openness
and security of cyberspace (for more on the information
society, see Section 3.3).
3.1.2.
EU Member States respond to
mass surveillance
In EU Member States, reactions to the revelations varied
from a complete lack of response to popular protest. In
Finland, for example, citizens submitted an initiative to
reform data protection legislation. Entitled ‘Yes we can:
The law for safeguarding of freedom of expression and
privacy internationally’, the proposal was submitted to
the Ministry of Justice online service on 8 July 2013, but it
has not yet brought about concrete legislative changes.15
The initiative proposes criminalising disproportionate
citizen surveillance and making it a universal crime,
whose perpetrators could be prosecuted in Finland
even if the act has been committed elsewhere. It also
proposes to extend the authorities’ and telecommuni‑
cation operators’ liability to report mass personal data
collection, storage and use. At the moment, the Finnish
Ministry of the Interior alone reports to the European
Commission on data retention practices; companies are
not obliged to report on their data protection practices
at all. The initiative also includes provisions aiming to
protecting the legal status of whistleblowers, forbidding
their extradition or the rejection of their applications for
entry or residence permits.
In Germany, the Conference of Data Protection
Commissioners sharply criticised the lack of clarifica‑
tion by the US authorities on the scope of the mass
surveillance programmes and called on the govern‑
ments of the Federation and the states (Länder) to
protect fundamental rights, strengthen the oversight
of intelligence services, and stop and prevent any
unconstitutional cooperation of intelligence services.16
Civil society reacted strongly. On 7 September 2013,
several thousand people protested in Berlin against
surveillance. The rally, organised and supported by
a broad coalition of 85 civil liberties organisations, pri‑
vacy advocacy groups, journalists’ federations, political
parties and their youth organisations,17 attracted around
15,000 protestors.18 Under the banner of ‘Freedom Not
Fear – Stop Surveillance Mania!’ (Freiheit statt Angst.
Stoppt den Überwachungswahn!), the protestors
objected to telecommunications surveillance by secret
services, data retention, body scanners, biometrics,
passenger name record registration and video surveil‑
lance. They called for a strong European data protection
regime, an independent evaluation of existing surveil‑
lance powers and a moratorium on planned surveillance
measures.19 In addition, new types of group protests
84
boomed: ‘walk‑ins’ near the offices of domestic and
US intelligence agencies attracted media attention;20
and at ‘cryptoparties’ information technology experts
trained people in how to protect and encrypt their data
and electronic communications.21
Some EU Member States assessed reform of
­intelligence service legislation in the light of the
Snowden ­revelations. In France22 and Hungary,23 for
example, amendments regulating intelligence ser‑
vices’ access to personal data prompted criticisms from
civil society organisations, politicians24 and specialist
bodies such as the French National Digital Council25 and
the Hungarian DPA,26 respectively. In November 2013,
the Hungarian Constitutional Court validated the
related law’s constitutionality. The court ruled that
a counter‑terrorism organisation was not violating
the right to privacy by collecting covert intelligence
on citizens based on ministerial permission rather than
on a court warrant.27
On 19 July 2013, the German Federal Government
­presented an eight‑point programme to help clarify
the facts on mass surveillance and ensure more robust
protection of privacy and data. Entitled ‘Germany
is a country of freedom’, the programme suggests
the following steps:
1)suspend the administrative agreements on
­communication surveillance with France, the United
Kingdom and the US as quickly as possible;
2) hold expert talks with the US to examine the topic;
3) push for an international data protection ­agreement
(in the form of an additional protocol to Article 17
of the International Covenant for Civil and
Political Rights);
4)promote the implementation of the EU Data
Protection Regulation, including the obligation for
private companies to report data transfers to third
countries (see Section 3.2);
5) develop standards under which EU Member States’
intelligence agencies may cooperate;
6)develop and implement a European information
­technology strategy in collaboration with the
European Commission;
7) establish a roundtable discussion on the subject of
‘security technology for information technology’, in
public–private partnership with research institutes
and private companies;
8) strengthen citizens’ information technology security
education through an internet safety awareness ini‑
tiative (‘Deutschland sicher im Netz’).28
Information society, respect for private life and data protection
The German government suspended the administrative
agreements with the US in August. It also held talks
with France and the United Kingdom. Many questions
remain unanswered, however, and it is impossible to
know which direction the talks on a so‑called ‘No Spy
Agreement’ will take.
In the Netherlands, the revelations triggered
­p arliamentary questions. On 2 December 2013, the
government established a commission to assess the Act
on the Information and Security Agencies 2002 (Wet op
de inlichtingen- en veiligheidsdiensten 2002). It found
that the agencies’ powers should be extended, given
the new threats to national security from cyberattacks
and digital espionage.29
In Slovenia, the revelations also prompted
a ­parliamentary question. The government responded
on 28 November 2013, saying that overarching
large‑scale surveillance is not permissible, due to
human rights protection standards, including data pri‑
vacy rights, and the rule of law.30
3.1.3.
Requests for information and
remedies
The Snowden revelations also prompted calls for more
transparency and prompted some to seek remedies for
alleged rights violations before data protection authori‑
ties and the ECtHR.
In October 2013, Polish NGOs requested ­information
from various state agencies and institutions on
the surveillance programmes.31 Some, such as the
DPA, provided comprehensive answers about their
PRISM‑related activity. Others responded only in part
and in general terms. The Polish Parliament’s secret
services committee confirmed, for example, that there
was neither a meeting on PRISM nor did any individual
committee member motion to discuss that mass surveil‑
lance programme. Finally, some entities, such as the
intelligence services, replied that they could not answer
any of the questions because of national security con‑
cerns or other confidentiality reasons.32 All the answers
are published online.33
The Polish Human Rights Defender called for
an i­nvestigation into PRISM.34 The Prosecutor
General informed the Human Rights Defender on
19 November 2013 that he had not found any grounds
to launch such an investigation.35
The Irish data protection authority assessed Facebook’s
compliance with data protection law in the light of the
Snowden revelations. The Irish authority dismissed
Europe‑v‑Facebook.org’s complaint as frivolous and
vexatious, given that Facebook had acted within the
terms of the EU–US Safe Harbour data‑sharing agree‑
ment.36 On 21 October 2013, the High Court granted
permission to seek judicial review of the Data Protection
Commissioner’s decision. A hearing on the case is likely
to take place in 2014.
The National Commission for Data Protection of
Luxembourg said in the summer of2013 that it was
looking into data transfers to the NSA by Skype,
a voice‑over‑internet protocol and instant messaging
service belonging to US‑based information technology
company Microsoft. In November 2013, it announced
that the transfer of certain types of data to affiliated
companies in the United States, as established in
the privacy policies of both companies, is operating
legally, in accordance with the rules of the adequacy
Decision 2000/520/EC of the European Commission to
implement the Safe Harbour agreement. Therefore, the
DPA found no violation of the legislation’s provisions on
personal data protection by either Skype or Microsoft.
The DPA emphasised that its decision could not be seen
as confirming the existence or otherwise of surveillance
programmes such as PRISM, since its competence was
limited to the two companies’ Luxembourg activities.37
In September 2013, three civil society organisations
and one individual complained before the ECtHR that
the United Kingdom’s GCHQ surveillance programmes
violated their right to privacy under Article 8 of the
ECHR. The ECtHR communicated the complaint to the
government of the United Kingdom.38
3.2. EU recognises need for
robust data protection
regime
The Snowden revelations in the spring of 2013 marked
a turning point in discussions on the EU data protec‑
tion reform, forcefully underlining the need for a strong
data protection framework.
European Commission Vice‑President Viviane Reding,
who categorised the revelations of mass surveillance
as a wake‑up call for the EU legislature, emphasised the
need for a robust, clear and enforceable data protec‑
tion legal framework to ensure the protection of the
fundamental rights of those living in the EU.
“A strong legislative framework with clear rules that
are enforceable also in situations when data is transferred
and processed abroad is, more than ever, a necessity. It
would provide legal certainty and protection for European
data subjects and companies.”
Vice‑President Viviane Reding, ‘Mass surveillance is unacceptable – US
action to restore trust is needed now’, 9 December 2013, Speech/13/1048,
available at: http://europa.eu/rapid/press-release_SPEECH-13-1048_en.htm
85
Fundamental rights: challenges and achievements in 2013
3.2.1.
Reform of the EU data
protection regime
Globalisation and the rapid growth of information
technology have fundamentally reshaped the way
personal data are collected and processed since the
1995 adoption of Directive 95/46/EC.39 Even before the
Snowden revelations, there was a need to strengthen
individuals’ fundamental rights to data protection and
to boost the digital economy in the EU, which led the
European Commission, in January 2012, to propose
a comprehensive reform of this directive (see Table 3.3).
The new General Data Protection Regulation40 aims to
create a single set of binding EU data protection rules.
Once adopted, it will replace Directive 95/46/EC. The
Data Protection Directive, 41 which would replace the
Data Protection Framework Decision, 42 covers law
enforcement authorities’ processing of personal data.
summarising the intense pressure, stating that European
lawmakers were “fed up” with US lobbying. 46 While
the lobby groups generally supported the single set of
data protection rules that the regulation would set up
in the EU, they opposed the supposed administrative
burden, increased accountability and heavier fines – to
name just a few of the contentious elements.
“The scandal has an impact. But MEPs [Members of
the European Parliament] are aware that we’re also
discussing the broader issue: fundamental rights and
privacy in general, especially when it concerns the issue
of governmental intelligence. […] Another important
impact on the debate is that all MEPs, politicians but also
individuals now see the importance of having a common
European legal framework. This protects our personal
rights, also in the internet environment.”
Jan Philipp Albrecht, Member of the European Parliament, LIBE rap‑
porteur on the draft regulation, Brussels, 26 September 2013
In 2013, the European Data Protection Supervisor (EDPS)
published additional comments 43 on the reform to
ensure that the new data protection regime is effective
in practice. Its comments responded to amendments
proposed by various European Parliament commit‑
tees. The Article 29 Working Party also discussed the
reform and issued an opinion44 on the draft directive
and a working document45 on the implementing acts
of the draft regulation.
The LIBE rapporteurs adopted their draft reports on the
draft regulation47 and directive48 in January, and four
other European Parliament committees also released
opinions proposing amendments. After months of
negotiations on the proposed amendments, LIBE voted
on 21 October 2013 by an overwhelming majority in
favour of several compromise amendments that would,
in broad terms, strengthen the reform package’s data
protection safeguards. The plenary is to adopt the
package in spring 2014.
Unprecedented lobbying from partisan US ­companies
and civil society organisations dogged the European
legislature as the Parliament worked out the details
of the new data reform package. The Chair of
the Article 29 Working Party spoke plainly when
The LIBE amendments incorporated into the draft
strengthen various protections. These include, for
example, reinforcing the role to be given to the future
European Data Protection Board. They also tighten the
rules on consent needed before an individual’s data
Table 3.3: Data protection reform package proposals
EU instrument
Reference
European Parliament report
Draft regulation
Proposal for a regulation of the
COM(2012) 11 final,
European Parliament and of the Council Brussels,
25 January 2012
on the protection of individuals with
regard to the processing of personal
data and on the free movement of such
data (General Data Protection
Regulation)
Draft European Parliament
Report voted in LIBE on
21 October 2013:
C70025/2012 – 2012/0011(COD)
Draft directive
Proposal for a directive of the European COM(2012) 10 final,
Parliament and of the Council on the
Brussels,
protection of individuals with regard to 25 January 2012
the processing of personal data by
competent authorities for the purposes
of prevention, investigation, detection
or prosecution of criminal offences or
the execution of criminal penalties, and
the free movement of such data
Draft European Parliament
Report voted in LIBE on
21 ­October 2013:
C70024/2012 –
2012/0010(COD)
Source: FRA, 2013
86
Title
Information society, respect for private life and data protection
are processed. They merge the right to data portability
with the right of access, allowing individuals to request
that their data be moved from one service provider to
another. They also subsume the ‘right to be forgotten
and to erasure’ under the ‘right to erasure’. Together,
these changes make it possible for individuals to request
that their personal data be erased from a website. The
LIBE amendments also make mandatory the appoint‑
ment of a data protection officer for any company
which processes the data of 5,000 data subjects in any
given consecutive 12-month period. They also restrict
the grounds for transfer of personal data to countries
outside the European Economic Area.
The LIBE amendments focused particularly on
strengthening national DPAs, which are required by
EU law and function as the first line of defence against
data protection violations.
LIBE secured, for example, enhanced DPA ­independence,
the lack of which has been a focus of pointed criticism
in recent years. The committee’s input ensured that
DPAs will be given adequate financial resources and
staff to carry out their obligations. These encouraging
developments are in line with previous FRA opinions,49
which expressed concern at the lack of independence
of DPAs. LIBE also improved access to remedies by
strengthening the DPAs’ sanctioning power: sanctions
can now include the obligation to perform periodic
audits, and fines could be as high as €100 million or
5 % of annual global turnover. These powers are to be
exercised “in an effective, proportionate and dissuasive
manner”. These amendments were supported by FRA
findings published in Access to data protection remedies
in EU Member States.
FRA ACTIVITY
Researching access to data protection
remedies in EU Member States
The FRA conducted research on how data protec‑
tion violations are remedied in practice in order
to identify the main challenges faced by different
actors and ways to improve access to such rem‑
edies. The research shows that the bodies most
commonly turned to when seeking remedies in
this field are DPAs, while judicial procedures are
rarely used. However, the research, based on an
analysis of legal frameworks in the 28 EU Member
States complemented by fieldwork research with
over 700 people in 16 EU Member States, found
great variations in the national DPAs’ powers to
remedy data protection violations. While some
non‑judicial bodies have sufficient powers to offer
effective remedies, there is minimal coordination
between DPAs and other non‑judicial bodies. The
project identifies other areas where work remains
to be done, suggesting, for example, the need for
measures raising awareness about EU legislation.
The findings of the FRA project Access to data pro‑
tection remedies in EU Member States are feeding
into the European Commission’s work on the data
protection reform package.
For more information, see: Access to data protection remedies
in EU Member States, available at: http://fra.europa.eu/sites/
default/files/fra-2014-access-data-protection-remedies_en.pdf
3.2.2. Key reforms affect data
protection authorities
As the FRA stated in its previous annual reports
and d
­ iscussed in the joint Council of Europe–FRA
Handbook on European data protection law,50 the CJEU
has addressed concerns about the independence of
the DPAs. The CJEU interpreted Directive 95/46/EC
in terms of independence in two landmark decisions
regarding Austria and Hungary.51 In response to the
CJEU judgment of 16 October 2012, which considered
that the Austrian DPA lacked independence, Austria
passed legislation in 2013 amending its legal frame‑
work. As of 1 January 2014, a new data protection
authority will replace the previous data protection
commission.52 In European Commission v. Hungary,
a case which also relates to requirements for DPAs’
independence, the CJEU is expected to deliver a judg‑
ment in 2014. The CJEU Advocate General concluded on
10 December 2013 that Hungary had violated EU law
by terminating the Data Protection Commissioner’s
mandate ahead of its stipulated term and recom‑
mended that the CJEU declare Hungary in violation of
DPA independence requirements.53
The role data protection authorities play in enforcing
data protection guarantees is pivotal. Like other
non‑judicial bodies protecting fundamental rights, their
independence is crucial (see Chapters 8 on access to
justice and judicial cooperation, and 10 on EU Member
States and international obligations).
The consequences of the CJEU case law for DPAs’ inde‑
pendence triggered national legislation reform in other
EU Member States as well. The Latvian Parliament
worked on amendments to the Personal Data Protection
Law54 at the end of 2013. The amendments specify the
duties and competences of the State Data Inspectorate,
The Snowden revelations did not lead the Council of
the EU to finalise the data protection reform by the
end of 2013. EU Ministers of Justice, meeting both
informally in January 2013 in Dublin and in July 2013
in Vilnius and at formal Justice and Home Affairs
meetings of the Council of the EU, discussed data
reform intensively. The main topics of discussion
were controllers’ obligations, risk‑based approaches,
specific rules for small- and medium‑sized enterprises,
‘one‑stop‑shop’ mechanisms enabling complainants to
access remedies before a single DPA, the consistency
mechanism and questions relating to judicial review
and judicial redress.
87
Fundamental rights: challenges and achievements in 2013
in particular in the area of complaints related to data
protection violations. In Lithuania, on 27 November 2013,
the new regulation strengthening the independence of
the Data Protection Inspectorate55 was approved. Under
this regulation, the director is now in charge of the DPA’s
administrative structure, whereas this was previously
a governmental responsibility. The director acts in this
context in total independence. The Slovakian Parliament
passed a data protection law on 30 April 2013, enhancing
the transposition of the Data Protection Directive.56 In
Poland, the key change discussed was the establishment
of local branches of the DPA in order to decentralise the
institution and make it more accessible to individuals living
outside Warsaw, where it currently has its headquarters,
but a lack of funds has so far kept this from happening.
The 2010 FRA report Data Protection in the European
Union: The role of national data protection authorities
considered the appointment procedure for the Greek
DPA a promising practice.57 The Greek constitution
requires a four‑fifths majority of the Conference of the
Presidents, a parliamentary instrument, to approve the
appointment of all independent authority members,
including of the Greek DPA. This practice still exists.
Owing to a lack of broad consensus among current par‑
liamentary political forces, however, it is not always
possible to reach the consensus necessary for these
appointments. This issue has affected other inde‑
pendent authorities, but not the Greek DPA.
3.2.3.
Raising awareness of data
protection
That there is a lack of awareness about data protection
safeguards is the overarching finding of the FRA report
Access to data protection remedies in EU Member States.
To address this, the FRA and the Council of Europe final‑
ised the publication of an easy‑to‑use handbook, and
DPAs in several EU Member States launched projects,
for example creating booklets intended to raise young
people’s awareness of data protection and ensure that
they are better informed of their rights.
FRA ACTIVITY
Presenting EU and Council of Europe
law on data protection
FRA, the Council of Europe and the ECtHR drafted
a Handbook on European data protection law to
provide an overview of EU and Council of Europe
law on data protection. Designed for legal practi‑
tioners who are not specialists in the field of data
protection, the handbook examines the relevant
law in this field stemming from both European
systems, including important selected case law.
For more information, see: Handbook on European data pro‑
tection law, available at: http://fra.europa.eu/sites/default/
files/fra-2014-handbook-data-protection-law_en.pdf
88
Promising practice
Fighting misuse of children’s personal
data and raising awareness
In several Member States, DPAs implemented
various activities targeted specifically at protect‑
ing children (see Chapter 4 on the rights of the
child and the protection of children).
The German State Commissioner for Data Protec‑
tion and Freedom of Information in Rhineland‑Pa‑
latinate launched the first German DPA website to
specifically target young people. It raises aware‑
ness of data protection issues and disseminates
knowledge on how to protect personal data in
general and on the internet in particular. It pro‑
vides concrete suggestions about how to pro‑
tect personal data when using social media or
games consoles.
For more information, see: www.youngdata.de
The Hungarian National Authority for Data Protec‑
tion and Freedom of Information issued a book‑
let on data protection for children.58 Its purpose
is to draw attention to the risks of children’s in‑
ternet use, specifically of those aged 10–16, to
identify future challenges and to promote the
conscious use of the internet and the exercise of
privacy rights.
For more information, see: Hungarian National Authority for
Data Protection and Freedom of Information (2013), Key to the
World of the Internet!, available at: www.naih.hu/files/2013projektfuzet-internet.pdf
3.2.4. Reform and implementation of
the Data Retention Directive
The EU continues its work on revising the Data
Retention Directive,59 which supports the fight against
crime and terrorism by requiring telecommunications
service providers to retain traffic and location data
for between six months and two years from the date
of the communication.
Several EU Member States amended their legislation,
while others questioned the legality of the adopted
laws transposing the Data Retention Directive into
national law. The Belgian Government for example,
adopted a royal decree transposing the Data Retention
Directive into Belgian law.60 In Poland, a legislative
amendment to the telecommunications law reduced
the data retention period to 12 from 24 months and
prohibited the use of data retention in civil proceed‑
ings.61 The Danish Parliament decided to postpone its
review of data retention rules until the parliamentary
year 2014–2015, in order to await the revision of the
Data Retention Directive.62 The Slovenian Information
Commissioner requested a constitutional review of the
new Electronic Communications Act governing data
Information society, respect for private life and data protection
retention, which entered into force in January 2013.63
According to the Constitutional Court, this task falls
under the exclusive competence of the CJEU, so it
delayed a review until the CJEU delivers its decisions on
the related joined cases of Ireland and Austria, C-293/12
and C-594/12 respectively.64
On 12 December 2013, a CJEU Advocate General issued
his opinion on the joined cases of Ireland65 and Austria66
in relation to the Data Retention Directive. The prelimi‑
nary rulings concerned the compatibility of the Data
Retention Directive with key fundamental rights. For
the Advocate General, “The Data Retention Directive
is as a whole incompatible with Article 52 (1) of the
Charter of Fundamental Rights of the European Union,
since the limitations on the exercise of fundamental
rights which that directive contains because of the
obligation to retain data which it imposes are not
accompanied by the necessary principles for governing
the guarantees needed to regulate access to the data
and their use.”
3.2.5.Google
Google privacy policy
The French DPA ordered Google on 20 June 2013 to
comply with French data protection law within three
months. When Google did not comply, the French DPA
initiated a formal procedure for imposing sanctions,
fining Google €150,000 on 3 January 2014.67
The United Kingdom’s DPA said in July 2013 that
Google’s privacy policy raised serious concerns about
its compliance with the Data Protection Act and that it
was investigating.68 The Information Commissioner’s
Office (ICO) instructed Google to revise its privacy policy
by 20 September to make it more informative.69 In the
absence of any changes, the ICO could initiate formal
enforcement actions, but by the end of the reporting
period the DPA had not taken any action.
The Spanish DPA fined Google €300,000 on
19 December 2013 for violating Spanish data protec‑
tion law, saying that Google had carried out illegal
processing linked to its new privacy policy.70
Google search engines
In Germany, the Federal Court of Justice decided in
favour of complainants who demanded that Google
stop a search engine function that resulted in the
automated display of compromising terms when the
complainants’ names were typed into the Google search
field. The court did not expect Google to take precau‑
tionary measures to prevent this function’s unintended
effects from ever occurring. The judges ruled, however,
that the company must examine affected people’s
claims and stop the automated display of terms, called
‘predictions’, shown when searching a person’s name
if this is necessary to protect complainants’ privacy.71
In another case, an individual who wanted material
erased from a newspaper internet page lodged a com‑
plaint with the Spanish Data Protection Authority (AEPD).
In this case, the Spanish DPA held that the material was
lawfully published and declined to order removal. The
case went to the Spanish National High Court (Audiencia
Nacional), which proceeded to refer a series of prelimi‑
nary questions to the CJEU. In Google v. AEPD, the CJEU
Advocate General issued his opinion on 25 June 2013.72
The Advocate General concluded that Google was not
responsible for the information or the dissemination of
search result data. The Advocate General declined to
classify Google as a ‘controller’ of personal data within
the meaning of the Data Protection Directive and,
finally, considered that the directive does not provide
for a general ‘right to be forgotten’. The CJEU will deliver
its judgment in 2014.
Google Street View
In July 2013, Google started photographing Slovenian
streets for its Google Street View application. The
Information Commissioner reported that Google had
committed to adopting measures aimed at reducing
the interference with privacy, which inevitably occurs
in such cases. These measures include: informing
the public regularly on the locations of Google cars;
providing more information on the street view
application; blurring faces and number plates in
photographs before publication; installing a ‘report
error’ button on each image; introducing security
procedures and measures for the protection of col‑
lected data; training drivers; and adapting shooting
schedules and locations.73
3.3. Information society:
EU moves to protect
and codify fundamental
rights online
Modern technologies have a considerable impact
on the protection of fundamental rights, since they
present fresh ways to fully realise these rights while
also posing new challenges to their protection. The
Snowden revelations on mass surveillance provided
a prominent example. For the first time in 2013, the
Internet Governance Forum74 organised a plenary ses‑
sion on human rights on the internet. Access to and
use of the internet from a human rights perspective
were at the forefront of discussions. It was unani‑
mously accepted that human rights and freedom of
expression online should remain a priority of the
Governance Forum’s agenda.75
89
Fundamental rights: challenges and achievements in 2013
3.3.1.
The protection of fundamental
rights online
The protection of fundamental rights in the digital
­environment is a much discussed issue. It is now univer‑
sally accepted that human rights online are protected
to the same extent as they are in the physical world.76
At regional level, the Council of Europe adheres to this
view, affirming in its Internet Governance Strategy that
human rights law applies equally online and offline.77
The EU has also accepted in its Cybersecurity Strategy
that core EU values apply both in the physical and in the
digital world and that fundamental rights, as enshrined
in the EU Charter of Fundamental Rights, should be
promoted in cyberspace.78
“For cyberspace to remain open and free, the same norms,
principles and values that the EU upholds offline should
also apply online.”
Cecilia Malmström, EU Commissioner for Home Affairs, ‘Delivering
a cybersecurity strategy to protect an interconnected Europe’,
16 May 2013, Speech/13/423, available at: http://europa.eu/
rapid/press-release_SPEECH-13-423_en.htm?locale=en
The European Commission Cybersecurity Strategy
emphasises the respective tasks of key government
and private sector players: governments need to
safeguard access and openness, respect and protect
fundamental rights online and maintain the reliability
and interoperability of the internet. The private sector
owns and operates significant parts of cyberspace, and
so any initiative in this area must recognise its leading
role if it is to succeed.79
3.3.2.
90
Codifying fundamental rights
online
against specific content, applications and services,
or specific classes thereof, except in a very limited
number of cases when reasonable traffic management
can be applied. These measures must be transparent,
non‑discriminatory and proportionate.
The Code of EU Online Rights, 81 published on
21 December 2012, does not establish new rights, nor
is it directly enforceable. It summarises and consolidates
the minimum existing rights deriving from EU legislation
on electronic communications, electronic commerce,
data protection and consumer protection. According
to the code, the fundamental rights enshrined in the
EU Charter of Fundamental Rights should be respected
and the open and neutral character of the internet
should be preserved.
The Charter of Human Rights and Principles for the
Internet is the flagship document of the Internet Rights
and Principles Dynamic Coalition.82 This coalition is part
of the Internet Governance Forum, which provides
a neutral space for all stakeholders to discuss issues
related to internet governance.83 The coalition consists of
researchers, lawyers, activists, NGOs, intergovernmental
organisations, government representatives and internet
service providers. The Charter is based on existing human
rights standards, notably the Universal Declaration of
Human Rights. It should serve as a policy document for all
stakeholders. It is underpinned by the idea that everyone
has the right to access and make use of the internet.
Based on the consultations for the Charter, the Coalition
also compiled ‘Ten Internet Rights and Principles’ which
must form the basis of internet governance.84 Some of
these principles draw directly on fundamental rights such
as free expression, privacy, life, liberty and security.
The private sector’s contribution is essential when it
comes to the implementation of fundamental rights
online. In fact, representatives of the private sector,
individuals, NGOs and government actors are working
together on all matters related to the internet’s devel‑
opment. In 2013, the multi‑stakeholder approach
achieved concrete results in the codification of online
fundamental rights. Both the draft Council of Europe
guide to human rights for internet users and the Charter
of Human Rights and Principles for the Internet were
made available. In addition, the EU published the Code
of EU Online Rights. Table 3.4 shows the similarities and
differences between these texts.
In line with the its Internet Governance Strategy for the
years 2012–2015, 85 the Council of Europe finalised a draft
guide to human rights for internet users.86 The guide
raises awareness and helps internet users understand,
exercise and enjoy the rights they have online. It does
not create new rights but builds on the rights enshrined
in the ECHR and other Council of Europe documents, as
interpreted by the ECtHR. The guide provides informa‑
tion about their application to online environments. It
should be adopted by the Council of Europe Committee
of Ministers in 2014.
The European Commission’s proposal for a regulation
laying down measures concerning the European single
market for electronic communications and to achieve
a connected continent80 establishes the freedom of
end‑users to access and distribute information and con‑
tent, run applications and use services of their choice via
their internet access service. It aims to guarantee a truly
free and open internet; operators are prohibited from
blocking, slowing down, degrading or discriminating
As a result of the multi‑stakeholder model ­underpinning
internet governance, private sector actors play an
important role in safeguarding fundamental rights in
the digital environment. The UN Guiding Principles
on Business and Human Rights have gained broad
acceptance and are the global reference point for
business and human rights. They are based on the
three pillars of the UN ‘Protect, Respect and Remedy’
Framework, which are:
3.3.3.
Corporate social responsibility
The European Convention on
Human Rights and other
Council of Europe conven‑
tions and instruments as
interpreted by the European
Court of Human Rights
Council of Europe
Committee of Ministers
Guide on human
rights for internet
users
Source: FRA, 2­ 013
The Universal Declaration of
Human Rights and other
covenants that make up the
International Bill of Human
Rights at the United Nations
Internet Rights and
Principles Dynamic
Coalition
Charter of Human
Rights and
Principles for the
Internet
EU legislation on electronic
communication, electronic
commerce, data protection
and consumer protection
European Commission
(Digital Agenda,
Action 16)
Code of EU Online
Rights
Legal basis
Created by
Name
Table 3.4: Codification of fundamental rights ­online
Not binding. It does not
create new rights. It is
neither an exhaustive
nor a prescriptive
explanation of human
rights standards
Not binding
It does not establish
new rights nor is it
directly enforceable. It
consolidates minimum
existing rights
Legal standing
To raise awareness and
serve as a tool to help
every internet user
without specialised
knowledge to under‑
stand and take advan‑
tage of their online
rights
To provide: a reference
point for dialogue and
cooperation between
different stakeholders,
a document that can
frame policy decisions
for the local, national
and global dimensions
of internet governance
and an advocacy tool
for governments,
businesses and civil
society
To increase consumer
awareness and confi‑
dence, in order to
promote the use of
online services
Purpose
Access and non‑discrimination, freedom of
expression and information, assembly,
association and participation, privacy and
data protection, education and literacy,
children and young people, effective
remedies
Right to access the internet, right to
non‑discrimination in internet access, use
and governance, liberty and security,
development through the internet,
freedom of expression and information,
freedom of religion and belief, freedom of
online assembly, privacy, digital data
protection, access to knowledge, rights of
the child, rights of people with disabilities,
right to work, online participation in public
affairs, consumer protection, health and
social services, legal remedy and fair trial
for actions involving the internet, appro‑
priate social and international order for
the internet, duties and responsibilities on
the internet, general clauses
Rights and principles protecting consum‑
ers in case of conflict
Rights and principles applicable when
buying goods or services online
Rights and principles applicable when
accessing and using online services
Rights covered
Information society, respect for private life and data protection
91
Fundamental rights: challenges and achievements in 2013
•• the state duty to protect against human rights
abuses by third parties, including businesses;
•• the corporate responsibility to respect human
rights, meaning both to avoid human rights viola‑
tions and to address the negative consequences if
companies are involved in such violations;
•• the need for greater access to effective remedies
for victims of business‑related human rights viola‑
tions, through both judicial and non‑judicial means
(see Chapter 10 on Member States and international
obligations).87
As part of its policy on corporate social r­ esponsibility,88
the European Commission issued in June 2013 three
guides applying the UN Guiding Principles in the fol‑
lowing business sectors: employment and recruitment
agencies, ICT, and oil and gas. The ICT sector guide89
is not a legally binding instrument, but it is designed
to help all ICT companies effectively implement the
principles into their policies. In particular, the guide sets
out the key elements of corporate social responsibility
to respect human rights, which are: developing a human
rights policy commitment; carrying out a human rights
impacts assessment, whose findings should then be
integrated; tracking and communicating how effectively
the impacts are addressed; and putting in place remedy
mechanisms. For each of these elements, the guide
summarises the standards set out in the UN Guiding
Principles, explains why they is important and offers
guidance, indicating possible approaches the company
could use to tackle the issues. It also offers a list of
resources for further information and provides exam‑
ples from everyday business life, such as how an ICT
company uses icons to inform users on privacy issues
or how a telecommunications company has developed
a global framework agreement.
3.3.4. Intermediary liability
The extent to which an internet portal can be held
accountable for content uploaded by users of blogs or
news portals is a topic of debate. It raises the question
of the scope of intermediary liability, particularly in
cases where defamatory comments are posted by such
readers. The ECtHR judgment in the Delfi AS v. Estonia
case 90 raised considerable concern among internet
actors. The ECtHR held that finding a portal liable for
offensive comments posted by readers below one of
the online articles was a justified and proportionate
restriction to the portal’s right to freedom of expression.
In Poland, the Supreme Administrative Court91 held that
an individual has the right to ask an internet service pro‑
vider to disclose email and internet protocol addresses
associated with offensive online communications,
because such data are necessary for the victims of an
online privacy breach to claim their rights effectively
92
before the court. Most internet service providers had
claimed that, according to e‑commerce law,92 these
data could be accessed only by enforcement agencies,
and courts had usually accepted this argument. The
Supreme Administrative Court, however, ruled that
internet service providers should allow individuals to
access the data if this serves a legitimate aim and is
proportionate to the circumstances of a particular case.
In the United Kingdom, the Court of Appeal issued its
decision in the Tamiz v. Google case,93 which concerned
Google’s liability for defamatory comments posted on
a blog hosted by Google’s blog service. The High Court
had held that Google cannot be considered a publisher
due to its passive role in relation to individual blog posts
and comments. The Court of Appeal generally supported
these findings. It considered separately, however, the
period after the notification of the complaint, concluding
that Google might as well have become a publisher,
since it allowed the defamatory comments to remain
on the blog after the notification. The appeal was dis‑
missed, nonetheless, since the court found that the
damage to the applicant’s reputation was trivial.
Many consider the Google–Vividown case the
most ­s ignificant Italian case on internet rights. In
February 2013, the Court of Appeal overturned the first
instance ruling, which had sentenced three Google man‑
agers to six months in prison because Google’s search
engine broadcast a video showing a boy with disabilities
being bullied. The Court of Appeal held that the uploader
of the video was responsible, not the hosting site.
3.3.5.
Right to an effective remedy
FRA ACTIVITY
Securing remedies for online data
protection violations
The FRA report Access to data protection remedies
in EU Member States, drafted in 2013 and pub‑
lished in 2014, examines the availability of EU rem‑
edy mechanisms to address data protection viola‑
tions. It identifies challenges faced by individuals
and suggests improvements. The data protection
violations most frequently mentioned during the
fieldwork research in 16 EU Member States relate
to internet‑based activities. This includes social
media, online shopping, leakage of personal data
from e‑shops, email account and database hack‑
ing, identity theft, security breaches and misuse of
personal data by global internet companies. It is for
this reason that effective remedies on the internet
need to be put in place. (see also Section 3.2.3)
For more information, see: FRA (European Union Agency
for Fundamental Rights) (2014), Access to data protec‑
tion remedies in EU Member States, Luxembourg, Publica‑
tions Office of the European Union (Publications Office)
Information society, respect for private life and data protection
The internet’s uniqueness does not alter the principle
that victims of fundamental rights violations need
access to remedies. The right to an effective remedy
is enshrined in all the main documents mentioned
that set out internet users’ fundamental rights. The
frequent violation of rights online makes the exist‑
ence of proper remedy mechanisms in the informa‑
tion society field indispensable. At the same time, the
crucial role the private sector plays in internet govern‑
ance creates challenges for the proper implementation
of remedial avenues.
Promising practice
In France, the DPA created an online document,
available on its website, entitled “How do I re‑
move personal information from a search en‑
gine?” This tip sheet gives instructions about the
procedure to be followed, including a template for
a letter to be sent to the webmaster of the site
and information about the procedure for volun‑
tary deindexation of the website.
For more information, see: www.cnil.fr/documentation/
fiches-pratiques/fiche/article/comment-effacer-desinformations-me-concernant-sur-un-moteur-de-recherche/
3.3.6. Fighting cybercrime
The EU adopted a number of policy initiatives in 2013
aimed at strengthening the fight against cybercrime.
In a majority of cases, criminal activities conducted
online result in infringements of human rights and
fundamental freedoms. The EU cybersecurity strategy,
adopted on 7 February 2013, sets out as one of its
main principles the protection of fundamental rights,
freedom of expression, personal data and privacy, and
it expresses the view that ‘individuals’ rights cannot
be secured without safe networks and systems’. At
the same time, the strategy states that ‘cybersecu‑
rity can only be sound and effective if it is based on
fundamental rights and freedoms as enshrined in the
Charter of Fundamental Rights of the European Union
and the EU core values’.
Some clear examples of violations of human rights and
fundamental freedoms by criminal activities carried out
online are the production and dissemination of child
sexual abuse content, which is a gross violation of the
children’s rights, and also intrusions into IT systems,
which in most cases has a direct impact on users’ pri‑
vacy and/or result in data breaches.
To step up the fight against cybercrime, with the o
­ bjective
of better protecting citizens’ fundamental rights, the EU
legislature adopted, on 12 August 2013, a directive on
attacks against information systems. This directive com‑
plements the already adopted Directive 2011/93/EU of
13 December 2011, which introduced common measures
against the sexual abuse and sexual exploitation of
children and child pornography.
Furthermore, the European Cybercrime Centre (EC3) was
created in January 2013 within Europol, becoming the
European focal point in the fight against cybercrime,
with the main task of assisting in and coordinating
cross‑border cybercrime investigations in the following
three priority areas: intrusion, child sexual abuse online
and payment card fraud.
The findings of three wide‑scale FRA surveys on
­lesbian, gay, bisexual and transgender (LGBT) people,
violence against women and antisemitism reveal that
online manifestations of hate crime are an increas‑
ingly serious problem, as the internet can be used as
a platform for hate and harassment. The anonymity
the internet affords may lead some users to publish
offensive material online.
The findings of the FRA EU LGBT survey94 showed that,
in the 12 months prior to the survey, one in five (19 %)
of all respondents were victims of harassment, which
they thought happened in part or completely because
they were perceived to be LGBT.95 Almost one in 10
(9 %) of the most recent incidents of hate‑motivated
harassment and 6 % of the most serious experiences
of discrimination happened online.96
Data from the FRA survey on gender‑based violence
against women97 show that one in 10 (11 %) women
in the EU has been a victim of cyberharassment at
least once since the age of 15, and 5 % were victims of
cyberharassment in the 12 months before the survey.
The risk of women aged 18–29 becoming the target
of threatening or offensive advances on the internet
is twice as high as it is for women aged 40–49 and
more than three times higher than it is for women
aged 50–59. Based on the FRA survey, 5 % of women
in the EU have experienced one or more forms of
cyberstalking98 since the age of 15, and 2 % did so in
the 12 months preceding the survey. Taking the victim’s
age into consideration, the 12-month rates vary from
4 % among 18–29 year olds to 0.3 % among women
aged 60 and over.
The FRA survey on discrimination and hate crimes
against Jews99 indicates, similarly, that victims see
online antisemitism as a serious problem. Three quar‑
ters of all respondents (75 %) view it as either ‘a very
big’ or a ‘fairly big problem’, and almost as many (73 %)
believe it has increased over the past five years. Overall,
10 % of respondents have experienced offensive or
threatening antisemitic comments made about them
on the internet.
In the United Kingdom, two people who made abusive
and menacing comments to a feminist campaigner
on Twitter were sentenced to 12 and eight weeks in
93
Fundamental rights: challenges and achievements in 2013
prison.100 The recipient of the menacing tweets char‑
acterised this case, however, as a “small drop in the
ocean” compared with the hate speech she and other
women had been subjected to online. The case exem‑
plifies the major problems faced and the challenge of
finding solutions using traditional legal means.
Action is needed to prevent the misuse of the internet
as a zone where hate crime can be committed with
impunity. The EU and its Member States should identify
effective methods and promising practices to address
growing concerns about online hate. This is particularly
true because the nature of online hate crime implies
an issue that is not confined within the borders of
individual Member States but a cross‑border problem
that must be tackled jointly (see Chapter 6 on racism,
xenophobia and related intolerance).
FRA ACTIVITY
Tackling cyberhate
The FRA organised its annual fundamental rights
conference for 2013 on the subject of hate crime,
including a workshop dedicated to cyberhate. The
conference workshop, held in Vilnius on 12–13 No‑
vember 2013, discussed problems related to the
rise of cyberhate, the challenges in combating it,
good practices and possible solutions. Key points
raised include the need to strengthen education,
training and cyberliteracy for all actors, including
law enforcement, users, companies and govern‑
ments, as well as enhancing transparency and
reporting in order to raise awareness. This could
be achieved by reducing the anonymity of users
while ensuring data protection. As online hate
speech is a global problem, a common approach
is needed. The differences in legislation and the
criminal codes’ definitions should be harmonised,
so that victims are all treated on equal terms.
Minimum standards on what is absolutely not al‑
lowed should also be set. Other suggestions con‑
cerned the development of mechanisms to report
unwanted content that go beyond the legal pros‑
ecution of hate speech. To raise young people’s
awareness and respond to the challenge of impu‑
nity, participants strongly suggested establishing
cyber‑actors in law enforcement within private
services and content and platform providers, such
as an ombudsman for Facebook. Good practices
reported include child helplines in the United
Kingdom, dedicated police officers for cyberhate
in Finland, awareness‑raising campaigns in Den‑
mark and a Belgian Federal Police unit working in
schools and engaging with potential victims.
At national level, EU Member States have also become
active in ensuring respect for human rights in the
digital environment and promoting awareness‑raising
94
campaigns. In Austria, the Advisory Board on the
Information Society at the Federal Chancellery met
four times in 2013101 to discuss relevant developments
at European and global level – such as the European
Commission’s Digital Agenda for Europe,102 the telecom‑
munications package,103 the Internet Governance Forum
and the European Dialogue on Internet Governance
(EuroDIG)104 – and at national level, such as strength‑
ening information security in Austria and providing
a safer internet. In this context, Safer Internet Day, on
5 February 2013, dealt with online rights and responsi‑
bilities. The French government announced its roadmap
for digital issues at the end of February.105 As well as
increasing the use of information and communications
technologies among young people and enhancing the
competitiveness of companies through digital technolo‑
gies, the roadmap also aims to ensure the protection of
civil liberties on the internet.
Promising practice
Discouraging children’s risky online
behaviour
The Spanish initiative ‘You choose’, aimed at 10–15
year olds, uses worksheets and a comic to make
students think about the possible consequences
of their online actions. There is a focus on social
networks and risk situations such as cyberbully‑
ing and online sexual harassment.
For more information, see: www.agpd.es/portalwebAGPD/
index-ides-idphp.php
FRA ACTIVITY
Putting numbers to gender‑based
violence against women
The FRA EU‑wide survey on gender‑based vio‑
lence against women shows that 5 % of women
in the EU have experienced one or more forms of
cyberstalking since the age of 15, and 2 % expe‑
rienced it in the 12 months preceding the survey.
Compared with an average 2 % prevalence of ex‑
periences of cyberstalking for all women, those in
the youngest age group in the survey, 18–29, were
most affected. For these women, cyberstalking
accounted for the majority of their experiences of
stalking in the 12 months before the survey.
The survey defined three specific behaviours as
cyberstalking: sending emails, text messages
(SMS) or instant messages that were offensive or
threatening; posting offensive comments about
the respondent on the internet; and sharing inti‑
mate photos or videos of the respondent on the
internet or by mobile phone. To be considered
stalking, these incidents had to take place repeat‑
edly and the same person had to perpetrate them.
Information society, respect for private life and data protection
Outlook
The mass surveillance scandal that affected users’
confidence in the internet and violated their privacy
will influence policy development in 2014. How users’
trust in information technologies and communications
will be restored will dominate the debates linked to
the information society, privacy and data protection.
The Snowden revelations will necessarily result in calls
for enhanced fundamental rights compliance in any
discussions linked to internet governance. Follow‑up
initiatives, launched in 2013, will necessitate increased
involvement of policy makers and the private sector,
with private sector actors needing to engage more in
fundamental rights enforcement.
At EU level, the data protection reform package will
remain high on the EU legislature’s agenda. The Council
of the European Union and the post‑election European
Parliament will need to enter negotiations quickly to
make it possible to adopt the reform by the end of 2014.
CJEU judgments will also continue to provide guidance
on how to amend legislation; those issued on the Data
Retention Directive directly affected data protection
safeguards and also clarified the independence required
of data protection authorities.
95
Fundamental rights: challenges and achievements in 2013
Index of Member State references
EU Member State
Page
AT���������������������������������������������������������������������������������� 84, 89, 94
BE���������������������������������������������������������������������������������������� n/a
BG���������������������������������������������������������������������������������������� n/a
CY���������������������������������������������������������������������������������������� n/a
CZ����������������������������������������������������������������������������������������� n/a
DE���������������������������������������������������������������������� 78, 84, 85, 88, 89, 97, 98
DK���������������������������������������������������������������������������������������� 94
EE��������������������������������������������������������������������������������������� 78, 92
EL����������������������������������������������������������������������������������������� n/a
ES����������������������������������������������������������������������������������������� n/a
FI�������������������������������������������������������������������������������������� 84, 94
FR�������������������������������������������������������������������������������� 78, 84, 85, 93
HR���������������������������������������������������������������������������������������� n/a
HU���������������������������������������������������������������������������������� 79, 84, 87
IE����������������������������������������������������������������������������������������� 89
IT����������������������������������������������������������������������������������������� n/a
LT����������������������������������������������������������������������������������������� 88
LU��������������������������������������������������������������������������������������� 85, 92
LV�������������������������������������������������������������������������������������� 78, 87
MT���������������������������������������������������������������������������������������� n/a
NL����������������������������������������������������������������������������������������� 85
PL��������������������������������������������������������������������������������������� 88, 92
PT����������������������������������������������������������������������������������������� n/a
RO���������������������������������������������������������������������������������������� n/a
SE����������������������������������������������������������������������������������������� 78
SI������������������������������������������������������������������������������������ 81, 88, 89
SK����������������������������������������������������������������������������������������� 88
UK����������������������������������������������������������������������� 81, 84, 85, 89, 92, 93, 94
96
Information society, respect for private life and data protection
Endnotes
All hyperlinks accessed on 30 April 2014.
1
2
Bigo, D., Carrera, S., Hernanz, N. Jeandesboz, J., Parkin, J.,
Ragazzi, F. and Scherrer, A. (2013), Mass surveillance of
personal data by EU Member States and its compatibility
with EU law, Centre for European Policy Study (CEPS) paper
in Liberty and Security in Europe, No. 61, p. 2.
United Nations (UN), Human Rights Council (2013), Report
of the Special Rapporteur on the promotion and protection
of the right to freedom of opinion and expression,
17 April 2013, para. 50 and 51, www.ohchr.org/Documents/
HRBodies/HRCouncil/RegularSession/Session23/A.
HRC.23.40_EN.pdf.
3
UN, General Assembly (2013), Resolution 68/167 on the
right to privacy in the digital age, 18 December 2013,
www.un.org/en/ga/search/view_doc.asp?symbol=A/
RES/68/167.
4
Council of Europe, Committee of Ministers (2013),
Declaration of the Committee of Ministers on risks to
fundamental rights stemming from digital tracking and
other surveillance technologies, 11 June 2013, wcd.coe.
int/ViewDoc.jsp?id=2074317&Site=CM&BackColorInterne
t=C3C3C3&BackColorIntranet=EDB021&BackColorLogge
d=F5D383.
5
6
Council of Europe, The Council of Europe Commissioner’s
human rights comment (2013), Human rights at risk when
secret surveillance spreads, http://humanrightscomment.
org/2013/10/24/human-rights-at-risk-when-secre
t-surveillance-spreads/.
Council of Europe, Conference of Ministers responsible for
Media and Information Society (2013), Political declaration:
Freedom of expression and democracy in the digital age,
opportunities, rights, responsibilities, 8 November 2013,
www.coe.int/t/dghl/standardsetting/media/belgrade2013/
Belgrade%20Ministerial%20Conference%20Texts%20
Adopted_en.pdf.
7
Ibid., p. 1.
8
European Parliament (2013), Resolution on the US National
Security Agency surveillance programme, surveillance
bodies in various Member States and their impact on EU
citizens’ privacy, 4 July 2013, Brussels, www.europarl.
europa.eu/sides/getDoc.do?type=TA&reference=P7-TA-201
3-0322&language=EN.
9
European Parliament, Committee on Civil Liberties,
Justice and Home Affairs (2014), Draft Report on
the US NSA surveillance programme, surveillance
bodies in various Member States and their impact on
EU citizens’ fundamental rights and on transatlantic
cooperation in Justice and Home Affairs, www.europarl.
europa.eu/sides/getDoc.do?pubRef=-%2f%2fEP%2f
%2fNONSGML%2bCOMPARL%2bPE-526.085%2b02%2b
DOC%2bPDF%2bV0%2f%2fEN.
10 European Commission (2000), Decision 2000/520/EC
on the adequacy of the protection provided by the safe
harbour privacy principles and related frequently asked
questions issued by the US Department of Commerce,
Brussels, 26 July 2000, http://eur-lex.europa.eu/LexUriServ/
LexUriServ.do?uri=CELEX:32000D0520:EN:HTML.
11 Council of the European Union (2013), Report on the
findings by the EU Co‑chairs of the ad hoc EU–US Working
Group on Data Protection, Doc. 16987/13, Brussels,
27 November 2013.
12 European Commission (2013), Communication to the
European Parliament and the Council: Rebuilding trust
in EU–US data flows, COM(2013) 846 final, Brussels,
27 November 2013; European Commission (2013),
Communication to the European Parliament and the Council
on the functioning of the Safe Harbour from the perspective
of EU citizens and companies established in the EU,
COM(2013) 847 final, Brussels, 27 November 2013.
13 European Commission (2013), Communication to the
European Parliament and the Council on the functioning
of the Safe Harbour from the perspective of EU citizens
and companies established in the EU, COM(2013) 847 final,
Brussels, 27 November 2013.
14 European Commission (2013), Communication to the
European Parliament and the Council: Rebuilding trust
in EU–US Data Flows, COM(2013) 846 final, Brussels,
27 November 2013.
15 Finland, ‘Kyllä me voimme: Laki sananvapauden ja
yksityisyydensuojan kansainvälisestä turvaamisesta (Lex
Snowden)’https://www.kansalaisaloite.fi/fi/aloite/442,
www.kansalaisaloite.fi/fi/aloite/442.
16 Germany, Konferenz der Datenschutzbeauftragten
des Bundes und der Länder (2013), ‘Entschließung:
Keine umfassende und anlasslose Überwachung durch
Nachrichtendienste! Zeit für Konsequenzen’, Resolution,
5 September 2013, www.datenschutz.bremen.de/sixcms/
detail.php?gsid=bremen236.c.9292.de.
17 Demonstration ‚Freiheit statt Angst’ (2013), Bündnispartner
2013. See: http://blog.freiheitstattangst.de/bundnispartner2013/.
18 Spiegel Online (2013), ‘NSA‑Protest in Berlin. Freiheit
unterm Alu‑Hut’, 7 September 2013, www.spiegel.de/
netzwelt/netzpolitik/freiheit-statt-angst-2013-demonst
ration-gegen-nsa-ueberwachung-a-920927.html.
19 Demonstration ‘Freiheit statt Angst’ (2013), ‘Unsere
Forderungen’, http://blog.freiheitstattangst.de/
unsere-forderungen/.
20 Spiegel Online (2013), ‘Proteste am Dagger Complex. Mit
Lampions gegen die NSA’, 1 September 2013; Deutsche
Welle, ‘Verhaltener Protest gegen NSA‑Überwachung’,
30 July 2013, www.dw.de/verhaltener-protest-gegen-ns
a-%C3%BCberwachung/a-16986575.
21 Deutsche Welle (2013), ‘Cryptoparties boom following
NSA scandal’, 20 July 2013, www.dw.de/cryptoparties-boo
m-following-nsa-scandal/a-16964049.
22 France, Loi n° 2013-1168 relative à la programmation
militaire pour les années 2014 à 2019 et portant diverses
dispositions concernant la défense et la sécurité nationale,
18 December 2013, www.legifrance.gouv.fr/affichTexte.
do?cidTexte=JORFTEXT000028338825&dateTexte
=&categorieLien=id.
23 Hungary, Egyes törvényeknek a nemzetbiztonsági
ellenőrzés új szabályainak megállapítása érdekében
szükséges módosításáról szóló 2013. évi LXXII. törvény.
24 Untersinger, M. (2013) ‘Surveillance d’Internet:
Inquiétudes autour de la loi de programmation militaire’,
Le Monde, 26 November 2013, www.lemonde.fr/
technologies/article/2013/11/26/surveillance-d-interne
t-inquietudes-autour-de-la-loi-de-programmat
ion-militaire_3518974_651865.html. See also: Hungary,
Társaság a Szabadságjogokért, http://tasz.hu/adatvedelem/
megfigyelessel-korrupcio-ellen.
25 France, Conseil National du Numérique (2013), Avis sur les
libertés numériques n° 2013-5, 6 December 2013, www.
cnnumerique.fr/libertes-numeriques/.
26 Hungary, Nemzeti Adatvédelmi és Információszabadság
Hatóság, NAIH-4867-4/2012/J, response letter provided
for the purposes of the present report by the National
Authority for Data Protection and Freedom of Information
to data request, 24 November 2013.
27 Hungary, Alkotmánybíróság, 32/2013. (XI. 22.) AB határozat,
22 November 2013.
97
Fundamental rights: challenges and achievements in 2013
28 Germany, Bundesregierung (2013), ‘NSA‑Aufklärung.
Deutschland ist ein Land der Freiheit’, Press release,
19 July 2013, www.bundesregierung.de/ContentArchiv/DE/
Archiv17/Artikel/2013/07/2013-07-19-bkin-nsa-sommerpk.
html.
42 Council of the European Union (2008), Council Framework
Decision 2008/977/JHA of 27 November 2008 on the
protection of personal data processed in the framework
of police and judicial cooperation in criminal matters (Data
Protection Framework Decision), OJ 2008 L 350.
29 The Netherlands, Commissie evaluatie Wiv 2002 (2013),
Evaluatie Wet op de inlichtingen- en veiligheidsdiensten
2002, www.rijksoverheid.nl/documenten-en-publicaties/
rapporten/2013/12/02/rapport-evaluatie-wiv-2002.html.
43 European Data Protection Supervisor (2013), Additional
EDPS comments on the data protection reform package,
15 March 2013, https://secure.edps.europa.eu/EDPSWEB/
webdav/site/mySite/shared/Documents/Consultation/
Comments/2013/13-03-15_Comments_dp_package_EN.pdf.
30 Slovenia, Ministrstvo za pravosodje, ‘Sporočila za
javnost po 35. redni seji Vlade RS’, Press release,
28 November 2013, www.mp.gov.si/si/novinarsko_
sredisce/novica/select/sporocilo_za_ javnost/articl
e/12447/6713/592f3cdc597266ddb17c10a531c7e0e6/?tx_
ttnews%5Byear%5D=2013&tx_ttnews%5Bmonth%5D=11.
31 Finland, Helsińska Fundacja Praw Człowieka (2013), ‘100
pytań o inwigilację do polskich władz’, Press release,
16 October 2013, www.hfhr.pl/100-pytan-o-inwigilacje-d
o-polskich-wladz.
32 The Helsinki Foundation for Human Rights (HFHR)
complained against the Central Anti‑Corruption Bureau’s
refusal to provide some of the requested information and
asked the other intelligence agencies which refused to
provide information to reconsider this request.
33 Finland, Helsińska Fundacja Praw Człowieka (2013),
‘Amerykański program PRISM – odpowiedzi na wnioski
o informację publiczną’, Press release, 6 December 2013,
www.hfhrpol.waw.pl/precedens/aktualnosci/
amerykanski-program-prism-odpowiedzi-na-wnioskio-informacje-publiczna.html.
34 Poland, Rzecznik Praw Obywatelskich, ‘Wystąpienie
do Prokuratora Generalnego w sprawie zapobiegania
sytuacjom nieautoryzowanego przetwarzania danych
osobowych polskich internautów’, RPO/738662/13/I/115.2
RZ, Press release, 23 September 2013.
35 Poland, Prokurator Generalny (2013), PG Ko1 2353/13,
19 November 2011.
36 Irish Times (2013), ‘Facebook decision can be reviewed’,
24 October 2013, www.irishtimes.com/business/sectors/
technology/facebook-decision-can-be-reviewed-1.1571049.
37 Luxembourg, Commission nationale pour la protection des
données (2013), ‘Pas de violation constatée en matière de
protection des données de la part de Skype et Microsoft au
Luxembourg’, Press release, 18 November 2013, www.cnpd.
public.lu/fr/actualites/national/2013/11/skype-microsoft/
index.html.
38 European Court of Human Rights (ECtHR), Big Brother
Watch and others v. the United Kingdom, No. 58170/13,
communicated on 9 January 2014; see also European Court
of Human Rights (ECtHR), Centrum för Rättvisa v. Sweden,
No. 35252/08.
39 Directive 95/46/EC of the European Parliament and of the
Council of 24 October 1995 on the protection of individuals
with regard to the processing of personal data and on the
free movement of such data, OJ 1995 L 281.
40 European Commission (2012), Proposal for a Regulation
of the European Parliament and of the Council on the
protection of individuals with regard to the processing
of personal data and on the free movement of such data
(General Data Protection Regulation), COM(2012) 11 final,
Brussels, 25 January 2012.
41 European Commission (2012), Proposal for a Directive of the
European Parliament and of the Council on the protection of
individuals with regard to the processing of personal data
by competent authorities for the purposes of prevention,
investigation, detection or prosecution of criminal
offences or the execution of criminal penalties, and the
free movement of such data, COM(2012) 10 final, Brussels,
25 January 2012.
98
44 Article 29 Working Party (2013), Opinion 01/2013
providing further input into the discussions on the
draft Police and Criminal Justice Data Protection
Directive, WP 201, 26 February 2013, http://ec.europa.
eu/justice/data-protection/article-29/documentation/
opinion-recommendation/files/2013/wp201_en.pdf.
45 Article 29 Working Party (2013), Working
Document 01/2013: Input on the proposed implementing
acts, WP 200, 22 January 2013, http://ec.europa.eu/
justice/data-protection/article-29/documentation/
opinion-recommendation/files/2013/wp200_en.pdf.
46 Financial Times, 4 February 2013.
47 European Parliament, Committee on Civil Liberties, Justice
and Home Affairs (2013), Draft report on the proposal
for a regulation of the European Parliament and of the
Council on the protection of individuals with regard to the
processing of personal data and on the free movement of
such data (General Data Protection Regulation), Brussels,
16 January 2013.
48 European Parliament, Committee on Civil Liberties, Justice
and Home Affairs (2012), Draft report on the proposal for
a directive of the European Parliament and of the Council on
the protection of individuals with regard to the processing
of personal data by competent authorities for the purposes
of prevention, investigation, detection or prosecution
of criminal offences or the execution of criminal
penalties, and the free movement of such data, Brussels,
20 December 2012.
49 FRA (European Union Agency for Fundamental
Rights) (2010), Data Protection in the European Union: The
role of national data protection authorities (Strengthening
the fundamental rights architecture in the EU II),
Luxembourg, Publications Office of the European Union
(Publications Office); see also FRA (2012), FRA opinion
on the proposed data protection reform package, Vienna,
1 October 2012; and FRA (2014), Access to data protection
remedies in EU Member States, Luxembourg, Publications
Office.
50 FRA and Council of Europe, European Court of Human
Rights (2014), Handbook on European data protection law,
Luxembourg, Publications Office.
51 Court of Justice of the European Union (CJEU), C518/07,
European Commission v. Federal Republic of Germany,
9 March 2010; CJEU, C614/10, European Commission
v. Republic of Austria, 16 October 2012.
52 Austria, 83. Bundesgesetz, mit dem das
Datenschutzgesetz 2000 geändert wird (DSG‑Novelle 2014),
23 May 2013, www.ris.bka.gv.at/Dokumente/BgblAuth/
BGBLA_2013_I_83/BGBLA_2013_I_83.html.
53 CJEU, C288/12, European Commission v. Hungary, Advocate
General’s Opinion, 10 December 2013.
54 Latvia, Likumprojekts ‘Grozījumi Fizisko personu datu
aizsardzības likumā’, http://titania.saeima.lv/LIVS11/
saeimalivs11.nsf/0/B0CA8FC1A876870BC2257C310050C99
7?OpenDocument.
55 Lithuania, LR Vyriausybė (2013), Nutarimas dėl Valstybinės
duomenų apsaugos inspekcijos administracijos struktūros
tvirtinimo, No. 1082, 27 November 2013.
Information society, respect for private life and data protection
56 Slovakia, Zákon č. 122/2013 Z.z. o ochrane osobných údajov,
30 April 2013.
57 FRA (2010), Data Protection in the European Union: The role
of national data protection authorities (Strengthening the
fundamental rights architecture in the EU II), Luxembourg,
Publications Office.
58 Hungary, National Authority for Data Protection and
Freedom of Information (2013), Key to the World of the
Internet!, www.naih.hu/files/2013-projektfuzet-internet.
pdf.
59 Directive 2006/24/EC of the European Parliament and
of the Council of 15 March 2006 on the retention of data
generated or processed in connection with the provision
of publicly available electronic communications services
or of public communications networks and amending
Directive 2002/58/EC, OJ 2006 L 105.
60 Belgium, Koninklijk besluit tot uitvoering van artikel 126
van de wet van 13 juni 2005 betreffende de elektronische
communicatie/Arrêté royal portant exécution de l’article
126 de la loi du 13 juin 2005 relative aux communications
électroniques, 19 September 2013, www.ejustice.just.fgov.
be/cgi_loi/change_lg.pl?language=fr&la=F&cn=201309192
0&table_name=loi.
61 Poland, Ustawa o zmianie ustawy – Prawo
telekomunikacyjne oraz niektórych innych ustaw,
16 November 2012.
62 Denmark, Politi og Strafferetsafdelingen, Report on various
questions regarding the Danish data retention regulations,
case no. 2012-187-0020, document no. 549331, www.ft.dk/
samling/20121/almdel/reu/bilag/125/1200765.pdf.
63 Slovenia, Zakon o elektronskih komunikacijah, ZEKom-1,
20 December 2012.
64 Slovenia, Ustavno sodišča Republike Slovenije, UI65/1316,
26 September 2013,.
65 CJEU, C293/12, Reference for a preliminary ruling from the
High Court of Ireland, lodged on 11 June 2012, Digital Rights
Ireland Ltd v. Minister for Communications, Marine and
Natural Resources, Minister for Justice, Equality and Law
Reform, The Commissioner of the Garda Síochána, Ireland
and the Attorney General, 25 August 2012.
66 CJEU, C594/12, Reference for a preliminary ruling from the
Austrian Constitutional Court, lodged on 19 December 2012.
67 France, Commission nationale de l’informatique et
des libertés (CNIL) (2014), Délibération n° 2013420,
3 January 2014, www.legifrance.gouv.fr/affichCnil.
do?oldAction=rechExpCnil&id=CNILTEXT00002845026
7&fastReqId=2000051504&fastPos=1.
68 United Kingdom, Information Commissioner’s Office (ICO)
(2013), ‘ICO statement regarding investigation into Google
privacy policy’, 2 April 2013, www.ico.org.uk/news/
latest_news/2013/ico-statement-investigation-google-pri
vacy-policy-02042013.
69 United Kingdom, ICO (2013), ‘ICO update on Google
privacy policy’, 4 July 2013, www.ico.org.uk/news/
latest_news/2013/ico-update-on-google-privac
y-policy-04072013.
70 Spain, Agencia Española de Protección de
Datos (AEPD) (2013), ‘The AEPD sanctions Google for
serious violation of the rights of the citizens’, Press release,
19 December 2013.
71 Germany, Bundesgerichtshof (2013), ‘Bundesgerichtshof
­entscheidet über die Zulässigkeit persönlichkeitsrechts‑
verletzender Suchergänzungsvorschläge bei “Google”’,
Press release No. 87/2013, 14 May 2013, http://juris.
bundesgerichtshof.de/cgibin/rechtsprechung/document.
py?Gericht=bgh&Art=en&Datum=Aktuell&nr=64071&linke
d=pm.
72 CJEU, C131/12, Google Spain SL, Google Inc. v. Agencia
Española de Protección de Datos (AEPD) and Mario Costeja
González, 25 June 2013, http://curia.europa.eu/juris/
document/document.jsf?text=&docid=138782&pageInde
x=0&doclang=EN&mode=req&dir=&occ=first&part=
1&cid=1090622.
73 Slovenia, Informacijski pooblaščenec (2013), ‘Snemanje ulic
za storitev Google Street View’, Press release, 2 July 2013,
www.ip-rs.si/novice/detajl/snemanje-ulic-za-storitev-googl
e-street-view/?cHash=2113761ece703e0badf20352fa2faa35.
74 See: Internet Governance Forum, ­w ww.intgovforum.org/
cms/.
75 Internet Governance Forum (2013), 8th meeting of the
Internet Governance Forum: Chair’s summary, p. 16, www.
intgovforum.org/cms/Chair’s%20Summary%20IGF%20
2013%20Final.Nov1v1.pdf.
76 UN, Human Rights Council (2012), Resolution 20/8 on
the promotion, protection and enjoyment of human
rights on the Internet, http://daccess-dds-ny.un.org/
doc/RESOLUTION/GEN/G12/153/25/PDF/G1215325.
pdf?OpenElement; UNESCO (2013), First WSIS+10 Review
Event, Final Recommendations, 27 February 2013, p. 3,
www.unesco.org/new/fileadmin/MULTIMEDIA/HQ/CI/
CI/pdf/wsis/WSIS_10_Event/wsis10_recommendations_
en.pdf. In November 2013 (195 UNESCO states endorsed the
Final Recommendations). See also: UN, General Assembly
(2013), Resolution 68/167 on the right to privacy in the
digital age, 18 December 2013, www.un.org/en/ga/search/
view_doc.asp?symbol=A/RES/68/167.
77 Council of Europe, Committee of Ministers (2011), Internet
Governance Strategy 2012–2015, CM(2011) 175 final,
15 March 2012.
78 European Commission (2013), Cybersecurity strategy of
the European Union: an open, safe and secure cyberspace,
Joint COM(2013) 1 final, Brussels, 7 February 2013, http://
eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=JOIN:201
3:0001:FIN:EN:PDF.
79 Ibid.
80 Proposal for a Regulation of the European parliament and of
the Council laying down measures concerning the European
single market for electronic communications and to achieve
a Connected Continent, and amending Directives 2002/20/
EC, 2002/21/EC and 2002/22/EC and Regulations (EC)
No 1211/2009 and (EU) No 531/2012, COM(2013) 0627 final,
https://ec.europa.eu/digital-agenda/en/news/regulatio
n-european-parliament-and-council-laying-down-mea
sures-concerning-european-single.
81 European Commission (2012), Code of EU Online Rights,
Brussels, https://ec.europa.eu/digitalagenda/sites/
digitalagenda/files/Code%20EU%20online%20rights%20
EN%20final%202.pdf.
82 Internet Rights and Principles Coalition (2013), Charter for
Human Rights and Principles for the internet, (version 2.0),
http://internetrightsandprinciples.org/site/wpcontent/
uploads/2013/10/IRP_booklet_final1.pdf.
83 See: Internet Governance Forum, ­w ww.intgovforum.org/
cms/.
84 Internet Rights and Principles Coalition (2011), ‘Ten internet
rights and principles’, http://internetrightsandprinciples.
org/images/IRPflyer.pdf.
85 Council of Europe, Committee of Ministers (2011), Internet
Governance Strategy 2012–2015, CM(2011) 175 final,
15 March 2012.
86 Council of Europe, Committee of Experts on Rights of
Internet Users (2013), Draft recommendation of the
Committee of Ministers to member states on a guide on
human rights for Internet users, MSI DUI (2013)07Rev7,
6 December 2013.
99
Fundamental rights: challenges and achievements in 2013
87 UN, Office of the High Commissioner for Human
Rights (2011), Guiding Principles on Business and Human
Rights: Implementing the United Nations “Protect, Respect
and Remedy” Framework, New York and Geneva.
88 European Commission (2011), Communication to the
European Parliament, the Council, the European Economic
and Social Committee and the Committee of the Regions:
A renewed EU strategy 2011–14 for corporate
social responsibility, COM(2011) 681 final, Brussels,
25 October 2011.
89 European Commission (2013), ICT sector guide on
implementing the UN Guiding Principles on Business
and Human Rights, June 2013, www.ihrb.org/pdf/
eu-sector-guidance/EC-Guides/ICT/EC-Guide_ICT.pdf.
90 European Court of Human Rights (ECtHR), Delfi AS v. Estonia,
No. 64569/09, 10 October 2013, pending before a Grand
Chamber of the ECtHR.
91 Poland, Naczelny Sąd Administracyjny, I OSK 1666/12,
21 August 2013.
92 Poland, Ustawa o świadczeniu usług drogą elektroniczną,
18 July 2012.
93 United Kingdom, Court of Appeal (2013), Tamiz v. Google,
EWCA Civ 68, www.bailii.org/ew/cases/EWCA/Civ/2013/68.
html.
94 The FRA EU LGBT survey was conducted online in the
27 EU Member States and Croatia between April and July 2012.
The survey collected information from 93,079 people
aged 18 and above who identified as lesbian, gay, bisexual or
transgender, and who lived in the EU or Croatia.
100
98 The survey defined three specific behaviours as
cyberstalking: sending emails, text messages (SMS) or
instant messages that were offensive or threatening;
posting offensive comments about the respondent on
the internet; and sharing intimate photos or videos of
the respondent on the internet or by mobile phone. To
be considered stalking, these incidents had to take place
repeatedly and the same person had to perpetrate them.
99 The FRA survey on discrimination and hate crimes against
Jews was conducted online in eight EU Member States –
Belgium, France, Germany, Hungary, Italy, Latvia, Sweden
and the United Kingdom – in September and October 2012.
The survey covered 5,847 self‑identified Jews aged 16 and
over. FRA (2013), Discrimination and hate crime against
Jews in EU Member States: Experience and perceptions of
antisemitism, Luxembourg, Publications Office, http://fra.
europa.eu/sites/default/files/fra-2013-discrimination-hat
e-crime-against-jews-eu-member-states_en.pdf.
100 United Kingdom, BBC News, ‘Two guilty over abusive
tweets to Caroline Criado‑Perez’, 7 January 2014, www.bbc.
com/news/uk-25641941.
101 See: Beirat für Informationsgesellschaft, ­w ww.bka.gv.at/
site/4293/default.aspx.
102 European Commission (2010), A digital agenda for Europe,
COM(2010) 245 final, Brussels, 26 August 2010, http://
eurlex.europa.eu/LexUriServ/LexUriServ.do?uri=CELE
X:52010DC0245:EN:NOT.
95 FRA (2013), EU LGBT survey: Results at a glance,
Luxembourg, Publications Office, p. 23, http://fra.europa.
eu/en/publication/2013/eu-lgbt-survey-european-unio
n-lesbian-gay-bisexual-and-transgender-survey-results.
103 European Commission (2013), Communication from the
Commission to the European Parliament, the Council,
the European Economic and Social Committee and the
Committee of the Regions on the Telecommunications
Single Market, COM(2013) 634, Brussels, 11 September 2013,
https://ec.europa.eu/digital-agenda/en/news/
communication-commission-european-parliament-c
ouncil-european-economic-and-social-committee-a-0.
96 FRA (2014 forthcoming), EU LGBT survey: Main results,
Luxembourg, Publications Office.
104 See: European Dialogue on Internet Governance, ­w ww.
eurodig.org/.
97 The FRA survey on violence against women interviewed
42,000 women (face‑to‑face interviews), who were
between 18 and 74 years old and lived in any of the 28 EU
Member States (approximately 1,500 per country). The
respondents were selected based on random sampling.
The data were collected between April and July 2012.
FRA (2014), Violence against women: An EU‑wide survey –
main results, Luxembourg, Publications Office, http://fra.
europa.eu/en/publication/2014/vaw-survey-main-results.
105 See: ­w ww.gouvernement.fr/premier-ministre/
le-gouvernement-presente-la-feuille-de-route-pour-le
-numerique.
The rights of the child and the protection
of children
Equality and non-discrimination
Racism, xenophobia and related intolerance
Roma integration
Equality
Equality
4
The rights of the child and the protection of children ��������� 103
4.1. Europe takes steps to improve access
to child‑friendly justice ������������������������������������������������ 103
4.2. Europe tackles violence against children ������������������� 106
4.2.1. Domestic violence and sexual abuse ����������� 107
4.2.2. Violence on the internet rises ����������������������� 109
4.2.3.Bullying ����������������������������������������������������������� 110
4.2.4. Other forms of violence ��������������������������������� 111
4.3. Europe takes aim at child poverty ������������������������������ 112
4.3.1. European Commission offers guidance
on promoting children’s well‑being �������������� 112
4.3.2. Member States seek solution
to child poverty ���������������������������������������������� 113
Outlook ������������������������������������������������������������������������������������ 116
Fundamental rights: challenges and achievements in 2013
UN & CoE
January
February
27 March – The Council of Europe Commissioner
for Human Rights issues a statement, with
reference to his visit to Estonia, according to
which all children should be granted citizenship
automatically at birth even when their parents
are stateless
March
17 April – The United Nations Committee on
the Rights of the Child (UNCRC) issues General
comment No. 15 on the right of the child to the
enjoyment of the highest attainable standard
of health and General comment No. 16 on State
obligations regarding the impact of the business
sector on children’s rights
23 April – The Parliamentary Assembly of the
Council of Europe adopts a Resolution on fighting
child sex tourism and a Resolution on ending
discrimination against Roma children
April
29 May – The UNCRC issues General comment
No. 17 on the right of the child to rest, leisure,
play, recreational activities, cultural life and the
arts and General comment No. 14 on the right of
the child to have his or her best interests taken as
a primary consideration
May
June
8 July – The UNCRC issues its Concluding
observations on the combined third and fourth
periodic reports of Slovenia
July
20 August – The CoE Commissioner for Human
Rights warns that child labour remains a serious
concern in Europe
August
September
1 October – The Parliamentary Assembly of the
CoE adopts a Resolution on violations of the
physical integrity of children
9 October – The CoE Commissioner for Human
Rights warns that austerity measures weaken
children’s rights protection
16 October – The Committee of Ministers of the
CoE adopts a Recommendation on ensuring full
inclusion of children and young persons with
disabilities in society
29 October – The UNCRC issues its Concluding
observations on the combined third and fourth
periodic reports of Luxembourg and of Lithuania
102
EU
January
20 February – The European Commission adopts a recommendation on Investing
in children: Breaking the cycle of disadvantage
February
12 March – The European Commission adopts a Communication on enhancing
maternal and child nutrition in external assistance
March
6 April – The deadline passes for transposing into national law the Directive on
preventing and combating trafficking in human beings and protecting its victims,
which also includes child victims
24 April – The European Commission adopts the green paper Preparing for a fully
converged audiovisual world: Growth, creation and values, covering also the
protection of children
April
May
12 June – The European Parliament and the Council of the European Union adopt
a regulation on mutual recognition of protection measures in civil matters, also
covering children with protection measures
12 June – The European Parliament adopts a resolution on the European
Commission Communication Towards social investment for growth and
cohesion – including implementing the European Social Fund 2014–2020, urging
the Commission and the Member States to take immediate action to fight child
poverty
13 June – The Council of the EU adopts Conclusions on an EU Framework for the
provision of information on the rights of victims of trafficking in human beings
26 June – The European Parliament and the Council of the EU adopt the recast
Asylum Procedures Directive, Reception Conditions Directive, Dublin Regulation
and Eurodac Regulation including child‑specific provisions on access to
child‑friendly asylum procedures and reception conditions
26 June – Regulation (EU) No. 610/2013 amending parts of the Schengen Borders
Code is published, requiring that training curricula for border guards shall
include specialised training for detecting and dealing with situations involving
vulnerable persons, such as unaccompanied minors and victims of trafficking
27–28 June – EU leaders at the European Council meeting in Brussels endorse
a comprehensive plan to combat youth unemployment
June
July
August
12 September – The European Parliament adopts a resolution on the situation of
unaccompanied minors in the EU, identifying the areas in which further efforts
are to be made at national and EU levels to strengthen the protection of this
group of particularly vulnerable children
September
October
27 November – The European Commission adopts a proposal for a directive
of the European Parliament and of the Council on procedural safeguards for
children suspected or accused in criminal proceedings
October
25 November – The European Commission adopts a Communication to the
European Parliament and the Council, Towards the elimination of female genital
mutilation
22 November – The CoE Commissioner for Human
Rights warns that more systematic consideration
should be given to the best interests of the child
in migration and asylum policies and procedures
November
17–18 December – The European Commission organises the eighth European
Forum on the Rights of the Child on the role of child protection systems
November
December
18 December – The deadline passes for transposing the Directive on combating
the sexual abuse and sexual exploitation of children and child pornography
December
4
The rights of the child and
the protection of children
Poverty and violence harm the lives of too many children across the European Union (EU). To tackle the pressing
and persistent problem of child poverty, the European Commission issued a recommendation setting forth
a common approach. EU Member States will need to put this framework into practice. Yet, across many Member
States, education budgets that contribute to children’s well‑being have fallen prey to crisis‑driven cuts.
Similarly, budget cuts to child protection services may put at risk safety nets needed by children afflicted by
violence, even as new technologies, especially the internet, increase the risk of some types of violence. The EU
and a number of Member States have taken steps to combat violence and child sexual abuse, as well as other
forms of violence affecting children; 2013 marked the deadline for Member States to transpose two related
directives. In another high‑priority field, the treatment of children was often inappropriate in judicial
proceedings, as crime victims or witnesses, and in civil proceedings, although recent legal reforms are expected
to improve the situation.
At the international level, the UN Committee on the Rights of the Child
was particularly active during 2013, releasing four general comments.
One of the most relevant is the comment dealing with the ‘best inter‑
ests of the child’, which is one of the principles included in Article 24
of the EU Charter of Fundamental Rights. The committee noted that
this is a dynamic concept encompassing various issues that continu‑
ously change, so the general comment does not prescribe what is
‘best’ for the child in any given situation, but rather aims to provide
a framework for assessing and determining a child’s best interests in
each case. The other general comments relate to child rights and busi‑
ness, the right to health and the right to play.
The Optional Protocol to the Convention on the Rights of the Child on
a communications procedure,1 which allows individual children to file
complaints about violation of their rights directly to the committee,
was opened for signature in February 2012. By the end of 2013, only
four EU Member States had ratified the protocol: Germany, Portugal,
Slovakia and Spain. The protocol will enter into force in April 2014,
after reaching a total of 10 ratifications worldwide.
4.1. Europe takes steps to improve
access to child‑friendly justice
Europe aims to ensure the rights of children in the justice system and
provide for their needs, given that responses are often inappropriate
Key developments in the area
of children’s rights
• The European Commission adopts
a recommendation providing EU Member
States with a common framework to act
against child poverty.
• The deadlines for transposing the Human
Trafficking Directive and the Directive on
sexual abuse, sexual exploitation and child
pornography are reached in 2013. During
2012 and 2013, a majority of EU Member States
reform civil and criminal law, thereby affecting
the way children access justice.
• The EU continues to adopt measures against
violence against women and girls, such as the
Regulation on mutual recognition of protection
measures and the Communication on the
elimination of female genital mutilation.
• Justice systems in EU Member States are not
properly responding to the specific needs and
rights of children in criminal and
civil proceedings.
103
Fundamental rights: challenges and achievements in 2013
and lacking sensitivity to childrens’ specific needs.
Ensuring child‑friendly justice and the implementation
of the Council of Europe Guidelines on child‑friendly
justice2 are among the objectives of the EU agenda for
the rights of the child.3
The rights of children involved as victims or witnesses
in criminal proceedings have thus been strengthened
through the victims package, mainly the 2012 Directive
on establishing minimum standards on the rights,
support and protection of victims of crime 4 and
the Directive on sexual abuse and exploitation of
children and child pornography, which established
a number of procedural guarantees.5
December 2013 was the deadline for EU Member States
to transpose the Directive on sexual abuse and exploi‑
tation and child pornography to national law. Member
States should ensure that child victims of crimes cov‑
ered by this directive receive appropriate assistance
before, during and after the criminal proceedings; they
should avoid unjustified delay; they should train profes‑
sionals responsible for interviewing children; and they
should organise hearings without the presence of the
public. Under the EU Victims’ Directive, Member States
will have to ensure that special protection measures
are available for all child victims participating in criminal
proceedings. Such protection measures include, for
example, the possibility of recording all interviews
audiovisually and that interviews must be carried out
by trained professionals and in premises designed or
adapted for that purpose. Member States have to
transpose this directive by 16 November 2015.
“[...] I could never give my full testimony, I could never say
everything about how I feel, what is on my mind or what
bothers me and other things. And then they interrupted me
constantly [...]”
Croatia, 14-year‑old boy, involved in a child custody proceeding (FRA, 2013,
Research on child‑friendly justice)
The EU promotes child‑friendly justice for children
victims of crime but also for children suspected or
accused of crimes. The European Commission has
adopted a proposal for a Directive on procedural safe‑
guards for children suspected or accused in criminal
proceedings.6 The proposal includes several measures
to protect children’s rights, the core measure being
mandatory access to a lawyer at all stages of the
proceedings with the exception of certain minor
offences. Children shall also benefit from other safe‑
guards, such as being promptly informed about their
rights, being assisted by their parents (or other appro‑
priate persons), the right to an individual assessment,
the right to receive medical examination and being
kept separately from adult inmates if deprived of
liberty. Moreover, deprivation of liberty should be
considered as a measure of last resort and recourse
to alternative measures that should be ensured
104
wherever possible. Furthermore, it lays down that
professionals such as law enforcement and judicial
authorities should receive specific training on the
needs of children.
In line with the above legislative measures, the
European Commission in close cooperation with FRA
has embarked on a project gathering data on children
and justice in all EU Member States. The project
analyses the legal safeguards provided to children in
the different national systems, determines justice
indicators, and provides statistical data on children’s
involvement in justice proceedings. Different findings
will be available throughout 2014 and 2015. In parallel,
FRA examines children’s actual treatment in justice
procedures through fieldwork research complementing
the Commission’s research and assessing how the
Council of Europe Guidelines on child‑friendly jus‑
tice are applied.
During the project’s first stage, FRA interviewed
574 professionals in 10 EU Member States about their
experiences regarding court hearings on issues of
domestic violence, sexual abuse and custody, as well
as visiting rights within divorce procedures. The profes‑
sionals were asked about the extent and quality of
these hearings, as well as their impact on the child.
“Ideally, the child won’t leave the hearing burdened by any
more negative emotions or with a bad impression. This is
what we are aiming for.”
Estonia, child protection specialist, female (FRA, Research on child‑friendly
justice)
The main findings of the 2013 FRA research point to very
different practices in treating children in judicial proceed‑
ings, depending on the severity and type of cases, and
the approach adopted by individual judges or other
professionals involved in the case. In some EU Member
States, children’s participation in judicial proceedings is
more formalised, standardised and adapted to children
needs than in others. Many professionals, such as judges,
police or social workers, were not aware of the Council
of Europe guidelines and relied mainly on national regu‑
lation and/or on their own understanding and judgement.
The majority of respondents said that information pro‑
vided to children can be improved in terms of consist‑
ency, amount, clarity and child‑appropriateness. Many
also highlighted a need for multi‑agency cooperation
and better training for judges on child‑related issues and
for social professionals on legal issues.
During 2013, half of the EU Member States have
­discussed proposals or have approved legal reforms
that affect the way children, particularly victims and
witnesses, access the justice system, how they are
heard during proceedings and the type of assistance
provided to them (for more information on access to
justice, see Chapter 8).
The rights of the child and the protection of children
FRA ACTIVITY
Listening to children’s voices
After having interviewed 574 professionals about
the treatment of children in justice proceedings,
FRA is now interviewing children themselves
about their experiences with the justice system.
Interviews with children are being carried out dur‑
ing 2014 in 10 EU Member States. Children are
asked questions about the way that they were
treated by justice officials; who heard them, how
and where; how they were supported; what ef‑
fect this treatment had on them; and how they
would have liked to be treated, or how to make
justice a better experience for children.
A preparatory phase was implemented in 2013 to
identify appropriate channels to reach children,
implement protection mechanisms and develop
and test the research instruments.
This research will lead to a broader assessment of
the impact on various practices of involving chil‑
dren in judicial proceedings. It also will help to
identify promising practices as well as areas for
improvement. Publication of the research findings
is planned for 2015.
The Criminal Code and the Code of Criminal ­Procedure7
in Poland have been reviewed. Now a hearing with
a child may take place in a specially adapted room either
on or outside the premises of the court. Additionally,
such hearings will have to be recorded. A hearing with
a victim will be allowed only if the testimony is relevant
to the proceedings; the hearing shall be conducted only
once, unless there is evidence of relevant circumstances
that need to be explained in a second hearing, or it is
requested by the accused if he or she had no counsel
at the time of the first interview with the victim. This
protection covers children who, at the time of a hearing,
are under 15 years of age. Children aged over 15 years
are obligatorily heard in the conditions mentioned
above only if there is a reasonable risk that hearing
them in other conditions could have a negative impact
on their mental state. Additionally, the application of
these procedures has been extended to witnesses.
The Czech Republic has also adopted new legislation
affecting proceedings with child victims, through the
adoption of the Victims Rights Act, 8 in force since
August 2013. It considers a child a particularly vulner‑
able victim, so it provides for special rights such as the
right to specialised aid free of charge (such as psycho‑
logical or social aid) or the right to have testimony
translated by an interpreter of the same or the opposite
gender. The questioning of a child is also regulated dif‑
ferently from that of an adult: a child has to be treated
in a sensitive way and audiovisual devices might be
used to record the testimony.
With the new Act strengthening the rights of victims of
sexual abuse, Germany prescribes standards for the
qualification of judges who hear child victims of sexual
abuse, strengthens the efforts to avoid multiple hear‑
ings and guarantees that hearings are conducted by
experienced youth public prosecutors.9
The Slovak parliament passed an amendment to the
Code of Criminal Procedure10 to ensure that child wit‑
nesses up to the age of 18 are entitled to a number of
protections. The previous code offered special protec‑
tion only to children up to 15 years of age. The protection
measures relate to the examination of child witnesses
and the need to avoid questions about issues that might
negatively affect their mental and moral integrity. The
examination should be conducted so that there is no
further need to repeat it; follow‑up examinations are
allowed only in specifically justified cases and require
a prosecutor’s consent.
In the United Kingdom, the Ministry of Justice launched
a consultation aimed at improving the Code of Practice
for Victims of Crime.11 The revised code in force since
December 2013 provides victims with an entitlement
to receive a needs assessment from the police to ascer‑
tain the help and support the victim may need. The
code also includes a dedicated section written in
child‑accessible language for child victims under
18 years of age. All children under the age of 18 at the
time of the offence will qualify for enhanced entitle‑
ments, which include timely referral to support ser‑
vices; access to therapy or counselling throughout the
investigation and prosecution where appropriate and
available; and the provision of advice and information
regarding special measures available for vulnerable
witnesses. All service providers are also placed under
a duty to give primary consideration to the
child’s best interests.
“Well, now and then I felt very sad. I felt very angry. And
I felt frightened, because I had not realised that they
[stepfather and mother] were able to listen to everything
I said. Well, sometimes I felt easy. And sometimes I felt
happy that all this was over. I liked that the family assistant
was with me. Actually, all in all, the proceeding gets the
mark ‘good’.”
Germany, 15-year‑old girl, victim of domestic violence, involved in
a criminal proceeding (FRA, Research on child‑friendly justice)
Countries have made reforms to the way the
­justice system responds not only to child victims or
witnesses of crimes but also to children accused of
breaking the law.
In Poland, the amendment to the Act on juvenile
­justice12 introduces a maximum time for which a child
may be detained in a juvenile police shelter following
a decision to place him or her in a shelter or with a foster
family. The act also clarifies and enumerates the rights
105
Fundamental rights: challenges and achievements in 2013
of children detained in juvenile police shelters and rules
on the obligation to inform a minor about his or
her procedural rights.
Luxembourg finished the construction of a juvenile
‘secure unit’ in one of the two socio‑educational cen‑
tres (one centre for females, one for males) in
response to criticism by the UN Committee for the
Prevention of Torture. The committee has censured
Luxembourg for imprisoning young persons in the
regular penitentiary centre together with adult crimi‑
nals.13 In July 2013, the Ministry of Family and
Integration proposed a bill about this secure unit, as
well as a draft decree on the organisation of this unit.14
The draft defines rights and obligations of child
offenders. It includes precise guidelines for body
search (for example, intimate search has to be done
by a medical doctor), ensuring respect for funda‑
mental rights and defining disciplinary measures and
procedures within the closed facility.
In the Netherlands, a criminal justice bill for juvenile
offenders was passed. It allows judges to choose
between juvenile and adult criminal law in cases of
serious felonies committed by juveniles from the age
of 16 to 23 years. The Ombudsman for Children has
called on the government to amend the new bill so
that the UN Convention on the Rights of the Child (CRC)
will not be breached.15 The new bill means a deteriora‑
tion of the situation for 16- to 17-year‑olds, since they
are presently judged according to juvenile crim‑
inal law only.
The Department of Justice in Northern Ireland, the
United Kingdom, has initiated a public consultation on
the current policy, legislation and operational matters
around children in custody, the potential for change and
the impact any such changes may have.16 Input received
will feed into the ongoing legislative discussion.
Children with special needs are also taken into
­consideration when reforming access to justice. Latvia,
for example, is discussing draft regulations for the police
to support children with special needs.17 The draft regu‑
lations determine the procedure whereby the police
evaluate if the child has special needs and if specialist
support is required. A child with hearing impairments
will have to be provided with a sign language inter‑
preter, and a child with communication difficulties will
have to be provided with a psychologist. A child brought
to the police will have to be provided with a secure
environment, movement opportunities and opportuni‑
ties to visit an accessible toilet.
The European Court of Human Rights (ECtHR) has dealt
with the issue of procedural guarantees and
child‑friendly justice in the case Vronchenko v. Estonia.
The court recognised the violation of the applicant’s
right to defence, as he was never given the opportunity
106
to have questions put to the victim, a girl victim of
sexual abuse. The court points out, however, that this
recognition should not be interpreted as an obligation
to have a cross‑examination. The authorities should
rather have examined if it was possible to put questions
to the witness, for example through the defendant’s
lawyer, police investigator or psychologist, in an envi‑
ronment under the control of the investigating authori‑
ties to prevent any harm and repeat victimisation
to the child.18
Reforms have also affected the way that children are
treated in civil proceedings. In Belgium, for example,
a new act establishes the Family and Youth Tribunal.19
It also introduces the principle of “one family, one
case, one judge”, which means that all substantive
decisions and decisions on interim measures of any
familial nature (including marriage, divorce, child sup‑
port, adoption, filiation, housing and liquidation of
estates) will be grouped together and decided on by
a single judge. Previously, the competences related
to family disputes were spread among several juris‑
dictions, which led to a multiplication of court pro‑
ceedings and increased costs for citizens and the
Department of Justice. The law also means that chil‑
dren over 12 years of age must be informed of their
right to be heard by the judge in family civil litigations.
Children under 12 years of age will be heard only at
their request or at the request of the parties, the
Public Prosecutor or the judge.
In Italy, Law 219/2012 entered into force in January 2013,
introducing a new provision in the Civil Code that estab‑
lishes the right of a child who is 12 years or younger to
be heard in all matters that affect him or her, if the child
is capable of forming his or her own views.20 At the
same time, national case law has reaffirmed the need
to comply with international standards on child‑friendly
justice on different occasions. The Supreme Court has
stressed in Judgment No. 11687 the right of the child to
be effectively heard, in compliance with the
UN Convention on the Rights of the Child and Article 24
of the EU Charter of Fundamental Rights. The judgment
annulled the decision of the appeal court on the condi‑
tions of separation of the parents, because the child
had not been heard.21
4.2. Europe tackles violence
against children
Violence still affects the lives of too many children in
Europe. The EU and a number of EU Member States
have taken steps to combat domestic violence and child
sexual abuse, bullying, corporal punishment and other
forms of violence affecting children, such as forced
marriages. Budget cuts to child protection services, and
the risks associated with the misuse of new technolo‑
gies are some of the factors which exacerbate
The rights of the child and the protection of children
problems. Various initiatives have been taken in 2013
at both international and European levels to
address the problem.
Violence has been identified as a significant cause of
mortality and morbidity in children, particularly ado‑
lescents, by the Committee on the Rights of the Child
in its General comment No. 15. 22 In line with it, the
Special Representative of the Secretary‑General on
Violence against Children has underlined in its annual
report 23 that the urgency of protecting children from
violence has not diminished. While progress in child
protection remains patchy across the world, children
continue to be subject to violent practices in schools,
care, justice institutions and the home.
As pointed out in a 2013 World Health Organization
(WHO) report,24 every year at least 850 children aged
under 15 years die from maltreatment in Europe. In
addition, it is estimated that 18 million children in
Europe suffer from sexual abuse, and 44 million
from physical abuse.
4.2.1.
Domestic violence and
sexual abuse
The EU has taken a step towards better protection of
domestic violence victims, including children, by guar‑
anteeing that from January 2015 restraining measures
against perpetrators are effective across the EU and not
just in the Member State in which they are issued. This
new order25 will complement the ‘European protection
order’, adopted in December 2011, extending its applica‑
tion from criminal to civil matters (see Chapter 9 on the
rights of crime victims).
A wider ratification of the Council of Europe Convention
on the protection of children against sexual exploitation
and sexual abuse, known as the Lanzarote Convention,26
represent s another accomplishment. So far,
18 EU Member States have ratified it: Austria, Belgium,
Bulgaria, Croatia, Denmark, Finland, France, Greece,
Luxembourg, Malta, the Netherlands, Portugal,
Romania and Spain before 2013, as well as Italy,
Lithuania, Slovenia and Sweden during the year.
The Council of Europe Convention on preventing and
combating violence against women and domestic vio‑
lence, known as the Istanbul Convention,27 has not yet
reached the minimum number of ratifications to enter
into force. Only three EU Member States have ratified
the convention, Austria, Italy and Portugal,
all during 2013.
The FRA survey, which is based on interviews with
42,000 women across the EU, also highlights children’s
direct exposure to domestic violence and their risk of
victimisation later in life. In connection with this, 41 %
of violent incidences against mothers are witnessed by
at least one child. Moreover, 7 % of women who had
a current or previous partnership and had experienced
violence in their partnership reported threats by
a partner that they would take the children away. In
3 % of the cases, the partner threatened to hurt the
children, and 3 % of the women state that the partner
actually did so.
FRA ACTIVITY
Asking women about their
experiences of violence
during childhood
Women in all EU Mem‑
ber States were asked
about their experiences
of violence during child‑
hood in a FRA survey.
The results show that
27 % of women have
experienced some form
of physical abuse in
childhood at the hands
of an adult, and just
over one in 10 wom‑
en (12 %) has experi‑
enced some form of sexual abuse by an adult be‑
fore she was 15 years old. This corresponds to
21 million women in the European Union.
Women’s perception of whether violence against women
is common in their country is closely connected to their
personal experiences of domestic or non‑partner vio‑
lence, their awareness of other women who are victims
of violence, and their awareness of campaigns addressing
violence against women. The interplay between these
factors needs to be taken into account when interpreting
data from the different EU Member States.
December 2013 was the deadline for EU Member
States to transpose the Directive on sexual abuse and
exploitation and child pornography into national law.28
Thus, 2013 continued to witness criminal law reforms
in the area of sexual abuse, domestic violence, child
pornography and sex tourism in Member States such
as Austria, Germany, Hungary, Italy, Latvia and the
Netherlands. Other Member States, such as Lithuania,
Poland and Spain, are still discussing draft proposals.
Austria introduced a new law in July 2013 altering the
Criminal Code and Code of Criminal Procedure29 to intro‑
duce changes to sexual crime legislation. The law
defines child prostitution and the crime of human traf‑
ficking. It increases the minimum punishment for the
crime of rape from six months to one year, and the
punishment for sexual coercion with severe conse‑
quences for the victim (e.g. severe bodily harm or
107
Fundamental rights: challenges and achievements in 2013
Figure 4.1: Childhood experience of any physical or sexual violence before the age of 15 (%)
FI
EE
FR
LU
DK
DE
SE
UK
SK
EU-28
LV
CZ
IT
NL
AT
HR
BG
ES
IE
PT
BE
HU
EL
RO
MT
LT
PL
SI
CY
12
12
10
21
18
17
24
23
23
20
26
25
25
31
30
30
30
29
28
33
33
32
34
43
42
42
41
36
30
40
44
51
48
50
Source: FRA (2012), Gender‑based violence against women survey data set
pregnancy) from one year to a minimum of five years.
Victims under 14 years shall be granted psychosocial
aid. The ban on working with children if convicted of
a sexual crime against children has been modified in
conformity with Directive 2011/93 to include professional
activities involving intensive c­ ontacts with children.
Austria also has a new law on child protection. Among
other changes, it structures the process regulating the
assessment of when the child’s best interests are endan‑
gered, and unifies it for all Austrian provinces. Two
well‑trained specialists must assess if there is an immi‑
nent danger to the child’s best interests. It also explicitly
lists the persons and institutions that are obliged to
notify the Child and Youth Welfare Office when they have
reason to believe that the child’s welfare is in danger.
30
In Hungary, the Commissioner for Fundamental Rights
released a report on child prostitution. It highlights that
the most serious obstacles to effectively tackling child
prostitution are the lack of cooperation between authori‑
ties and institutions, the lack of knowledge, professional
guidelines and protocols, and the fact that the police
treats children in prostitution as offenders and not as
victims.31 Hungary had reformed its criminal code in 2012,
making some changes to its treatment ofsexual violence;
the 2012 reform further defined child prostitution and
increased the time within which legal proceedings may
be brought for certain crimes up to the age of 23 years.
108
FRA ACTIVITY
Researching European guardians for
children victims of trafficking
During 2013, FRA reviewed guardianship systems
in the 28 EU Member States to identify promising
practices. The review covered issues such as the
role of the guardians, their qualification and train‑
ing, and the procedure for appointing a guardian.
The research also explored how specific guardian‑
ship mechanisms used for child victims of traffick‑
ing relate to guardianship arrangements for other
children who are temporarily or permanently de‑
prived of their family environment.
FRA was requested to support the European Com‑
mission to develop a best practice model on the
role of guardians and/or representatives of child
victims of trafficking, as suggested in the EU An‑
ti‑Trafficking Strategy 2012–2014. To do so, it up‑
dated parts of the report on Child trafficking in the
European Union: Challenges, perspectives and
good practices, published by FRA in July 2009.
As a result of this research, FRA will publish
two reports in 2014: a good practice model on
guardianship and legal representation of children
victims of trafficking and a comparative report on
the guardianship systems in the 28 Member States.
The rights of the child and the protection of children
A number of EU Member States have reformed laws
regulating domestic violence against women and chil‑
dren. In Latvia, for example, the notion of emotional
abuse has been widened; now the violent treatment of
a person close to a child in the child’s presence shall
also be recognised as emotional abuse.32 Italy adopted
a new law decree introducing an aggravating sanction
for the perpetrator if the domestic violence has taken
place in presence of a child and introducing the possi‑
bility of granting a permit to stay for victims of domestic
violence who are third‑country nationals.33 The law
decree promotes prevention programmes in schools
and the reinforcement of support programmes for
women victims of violence and their children.
Promising practice
Compensating victims of family
sexual abuse
To compensate victims of family sexual abuse,
Germany has established a €50 million sexual
abuse fund (Fonds Sexueller Missbrauch). The
Länder should add another €50 million to the
fund. The establishment of a fund for victims of
sexual abuse in institutional settings and outside
family context is under discussion.38
People who were sexually abused in their fami‑
lies as a child and still suffer from the effects to‑
day may apply for benefits in kind up to a value of
€10,000. This provision covers cases of violence
that occurred between the founding of the Ger‑
man Republic in May 1949 and June 2013. Re‑
quests for such benefits can be submitted until
30 April 2016. The offer of assistance ranges from
cost transfers for psychotherapeutic care to train‑
ing and qualification measures or other tailored
support in special cases.39
For more information, see: www.fonds-missbrauch.de/
In the Netherlands, the Act for a Mandatory Reporting
Code on Domestic Violence and Child Abuse entered
into effect on 1 July 2013,34 making it compulsory for
organisations and independent professionals to adhere
to a reporting code. The code targets domestic violence
and child abuse, including sexual violence, female
genital mutilation, honour‑based violence, senior abuse
and forced marriage. It applies to organisations and
independent professionals in education, healthcare,
childcare, youth care, social work and the criminal jus‑
tice system, who are obliged to report cases of sus‑
pected child abuse. Organisations and independent
professionals have to draw up their own systems on
how to report, tailored to their specific situation. The
Ministry of Health, Welfare and Sport has published
a model reporting code that can be used for this pur‑
pose.35 The Dutch Healthcare Inspectorate held a survey
before the act entered into force and concluded that
reporting codes for domestic violence and child abuse
have not been adequately used in the healthcare sector,
with its subsectors varying in the extent to which they
had adopted such codes.36
At the policy level, the Netherlands is also discussing
an action plan against child sex tourism.37 It contains
measures to address child sex tourism, including con‑
fiscating the passports of repeat offenders and closer
cooperation between Dutch officials and officials from
countries where child sex tourism is common, such as
Brazil, Thailand, the Philippines and India. This will
include deploying police experts to help track down
offenders, improving the international registration of
offenders and information exchange between countries.
4.2.2. Violence on the internet rises
The safety of children is particularly at risk on the internet
both from adult predators and from young people them‑
selves uploading sexually explicit material. The threat of
online child sexual exploitation is increasing as tech‑
nology develops and offenders find more secure methods
to distribute abusive material, as reported by Europol.40
The amount of video material depicting child sexual
abuse available online has grown substantially. It is esti‑
mated that only between 6 % and 18 % of child abusive
material is currently traded for money, given the wide
availability of free material, especially using peer‑to‑peer
technology, by which individuals exchange files. An
increase in the distribution of sexual images and videos
by young people themselves – known as ‘sexting’ – is
equally alarming. According to the Virtual Global
Taskforce, a network of law enforcement agencies, NGOs
and industry, 15 % of 11- to 16-year‑olds in Europe say
that they have received sexual messages from peers.41
European stakeholders have taken several initiatives to
promote child safety on the internet. The European
Commission has adopted a green paper42 to regulate
reporting tools for users, age‑appropriate privacy set‑
tings, use of parental control and effective removal of
child abuse material. In addition, a new European
Cybercrime Centre, focusing on online child sexual
exploitation, among other activities, was opened in
January 2013. 43 Under the Daphne III Programme,
a European awareness‑raising campaign on cyberbul‑
lying called Delete Cyberbullying44 was launched in
February 2013. The project contributes to developing
a common approach to risk prevention by setting guide‑
lines to children, families and parents (see also Chapter 3
on information society, respect for private life
and data protection).
Member States have adopted a number of legislative
and policy actions. In Luxembourg, a bill45 is being dis‑
cussed to address cyberharassment. The bill is expected
to empower victims, especially students, to go to court.
In Italy, the National Authority for Children has signed
109
Fundamental rights: challenges and achievements in 2013
an agreement with the Head of Police to disseminate
promising practices in relation to the correct use of web
technologies by children. The Observatory against
Paedophilia and Child Pornography has launched its
own website with the aim of spreading the knowledge
of this phenomenon, including laws and practical infor‑
mation for victims46 (see promising practice on web
technologies in Chapter 3).
A 2013 report by the Dutch Ombudsman for ­Children47
noted a 158 % increase in notifications of child pornog‑
raphy between 2011 and 2012. Online grooming (an
adult approaching a minor with the aim of sexual abuse)
has been punishable since 2010. There have been sev‑
eral cases, including a 2013 case before the Supreme
Court48 and a case before the District Court of Assen,
where a man was accused of grooming 300 girls through
the internet between 2005 and 2013. The prosecution’s
focus is shifting from the downloading of child pornog‑
raphy to the sexual abuse of children and the production
and distribution of child pornography. Spain approved
the Second Strategic Plan on childhood and adolescence
2013–2016; one of its eight objectives is the prevention
of online abuse and grooming, and it also plans criminal
law reform on the issue.49
An innovative and controversial program to detect men
looking for webcam sex with children coming from
developing countries was also developed by a Dutch
organisation, Terres des Hommes.50 With the aid of
a computer‑generated 10-year‑old girl, ‘Sweetie’, the
organisation was able to identify more than
1,000 sex predators from more than 65 countries in less
than two and a half months. The video footage and all
information obtained on predators have been trans‑
ferred to police authorities.
4.2.3.Bullying
Cyberbullying is another common threat to children’s
well‑being, with severe effects that can lead to
self‑harm. Cyberbullying is understood as a form of
bullying that takes place using electronic technology.
Examples of cyberbullying include mean text messages
or emails, rumours sent by email or posted on social
networking sites, and embarrassing pictures, videos,
websites or fake profiles. During 2013, a few cases of
suicide appeared in the media in several EU Member
States, such as in Italy, where in May 2013 a 14-year‑old
girl from Novara committed suicide after some offen‑
sive videos were posted online. Bullying is not limited to
the internet, being widespread also in schools. To raise
awareness of the very serious effects of this phenom‑
enon, members of the European Parliament called for
the establishment of a European Day against Bullying
and School Violence in January 2013.51
FRA conducted the first ever online EU‑wide survey
to establish an accurate picture of the lives of lesbian,
gay, bisexual and transgender (LGBT) people and their
experiences with regard to fundamental rights.52 A total
of 93,079 LGBT persons took part in the survey. Asked
about their experiences during childhood, more than
eight in 10 respondents in each LGBT subgroup and
in each EU Member State have witnessed negative
comments or conduct during their schooling because
a schoolmate was perceived to be LGBT; in other words,
in all EU Member States more than 80 % of LBGT people
Figure 4.2: Heard or seen negative comments or conduct because a schoolmate/peer was perceived to be
L, G, B or T at school before the age of 18, by EU Member State and by LGBT group (%)
100
90
80
70
60
50
95 95 96 97 91
88 88 88 88 89 89 90 90 90 90 90 91 91 92 93 93 93 93 94
40 83 83 84 85 86
90 92 92 90 90
30
20
10
Note: Answers include ‘rarely’, ‘often’ and ‘always’.
Source: FRA (2012), EU LGBT survey
110
Lesbian women
Gay men
Bisexual women
Bisexual men
Transgender
LV
CZ
DK
EE
SK
SI
LT
NL
RO
SE
AT
FI
BE
DE
HU
FR
PL
ES
MT
LU
HR
IT
IE
PT
UK
BG
EL
CY
EU LGBT average
0
The rights of the child and the protection of children
surveyed have heard or seen negative comments or
conduct towards a peer perceived to be lesbian, gay,
bisexual or transgender (Figure 4.2).
Two thirds (68 %) of all respondents who answered
the question say these comments or this conduct has
occurred often or always during their schooling before
the age of 18. The highest rates are in Bulgaria, Cyprus,
Greece, Ireland, Malta, Spain and the United Kingdom.53
Two thirds (67 %) of all respondents say they often or
always hid or disguised the fact that they were LGBT
during their schooling.
Bullying and violence in schools remains an important
concern in the EU. Many Member States have taken up the
matter to address issues of school violence and bullying.
A government bill was tabled in Finland’s Parliament
on 6 June 2013 aiming to reduce bullying by shifting
emphasis from individual measures and reparation to col‑
lective measures and prevention. The legislative proposal
includes an obligation to offer services by school welfare
officers and psychologists to pupils at the secondary level
of schooling, not only to primary pupils as in the present
legislation.54 Bulgaria has set up an expert working group
at the Ministry of Education, which developed a mecha‑
nism for combating school bullying.55 In Greece, the Centre
for the Prevention of School Violence established by the
Ministry of Education in 201256 presented, according to
reports, the findings of a major survey based on a sample
of 41,422 school children showing that 33 % were vic‑
tims of violence because of their place of origin and 11 %
because they belonged to a minority group.57
The Action Plan Against Bullying in schools in the
Netherlands58 contains a proposal for an act that will
oblige all primary and secondary schools to employ
effective measures against bullying, ensure its moni‑
toring and appoint a person who coordinates actions
tackling bullying. In 2013, the State Secretary for
Education, Culture and Science appointed a committee
of independent experts that will review the effective‑
ness of anti‑bullying programmes.59 It is expected
that a legislative proposal will be sent to the House of
Representatives in 2014.60
bullying. A common theme was for young people to
be called a ‘terrorist’ or a ‘bomber’, and told to ‘go
back to where they came from’. These constant insults
left many young people feeling upset, insecure and
frustrated62 (for more information on racism and ethnic
discrimination, see Chapter 6).
4.2.4. Other forms of violence
Other forms of violence also afflict children, such as
genital mutilation, forced marriages and corporal pun‑
ishment. EU Member States are increasingly moving to
criminalise forced marriages and corporal punishment
and the EU has taken aim at female genital mutilation.
The European Commission adopted a Communication
to the European Parliament and the Council: Towards
the elimination of female genital mutilation.63 The
Communication aims at supporting Member States in
the protection of girls, the prosecution of parents and
cutters, and especially prevention through education
and awareness raising. Female genital mutilation can
be prosecuted in all Member States, either through gen‑
eral criminal legislation or through specific criminal law
provisions, such as those existing in Austria, Belgium,
Croatia, Cyprus, Denmark, Germany, Ireland, Italy,
Spain, Sweden and the United Kingdom. However,
very few cases are actually prosecuted and sentenced.
Germany is one of the Member States that changed
their penal codes recently to penalise the mutilation
of female genitalia. The new act clearly classifies
female genital mutilation as a crime, punishable with
imprisonment of at least one year. Moreover, the pro‑
cedural rights of victims have been strengthened and
the limitation period is set to begin only when victims
attain their majority.64
There were numerous racist incidents involving
­students but also parents and even teachers against
students, as reported by the Greek Ombudsman in
September 2013. The majority are related to the ethnic
and racial background of the students. Teachers are
often seen as tolerating this type of violence.61
After a controversial 2012 court case in Germany (for more
information, see Chapter 5 of the 2012 Annual report,
on equality and non‑discrimination) the issue of male
circumcision has continued to be high on the European
agenda. Despite the objections of those who see circum‑
cision as an issue of religious freedom, the Council of
Europe’s Parliamentary Assembly approved a resolution
on children’s right to physical integrity in October 2013.65
This initiative aims to include medically unjustified viola‑
tions of children’s physical integrity within the body of
human rights standards. Governments are recommended
to restrict certain practices, such as the circumcision of
young boys for religious reasons and surgery to ‘nor‑
malise’ the genitalia of intersex children, until a child is old
enough to consent or refuse consent. The resolution also
calls on states to define the medical and sanitary condi‑
tions for these practices as well as adopt legal provisions
to ensure that certain operations will not be undertaken
before a child reaches the age of consent.
The United Kingdom’s main child helpline reported
a 65 % increase in young people experiencing racist
Children’s ombudspersons from five Nordic countries
(the EU Member States Denmark, Finland and Sweden,
Research shows that children are significantly more
vulnerable to school violence if they belong or are per‑
ceived to belong to a minority group, such as migrant,
Roma or LGBT children.
111
Fundamental rights: challenges and achievements in 2013
as well as Iceland and Norway) agreed in September
to work with their respective governments to restrict
male circumcision so that it is no longer performed
on non‑consenting, underage boys for non‑medical
reasons. 66 In addition, medical associations from
17 European countries also voiced their opposition
to routine male circumcision of infants and boys as
a medically unnecessary procedure which goes against
medical ethics. In a 2013 edition of the medical journal
Pediatrics, paediatricians and medical associations
agreed that “[c]ircumcision fails to meet the com‑
monly accepted criteria for the justification of preven‑
tive medical procedures in children,” and that existing
research does not justify “surgery before boys are old
enough to decide for themselves.”67
The issue of forced marriage has been analysed in a FRA
study to be published in 2014. Seven out of 28
EU Member States define forcing a person to marry
against his or her will as a specific criminal offence.
These states are Austria, Belgium, Croatia, Cyprus,
Denmark, France and Germany. There is a trend towards
criminalising forced marriage across Europe. Three
Member States passed specific legislation to combat
forced marriage in 2013 (Croatia, France and the
Netherlands), and three others (Luxembourg, Malta
and the United Kingdom) are currently addressing
forced marriage in legislative proposals. Certain coun‑
tries have legal age limits against child marriage,
requiring both spouses to be at least 18 years old, such
as France, Germany, the Netherlands and Sweden. In
others, the marrying of persons under 18 would require
parental approval. In yet others, the limit is set at
16 years or below, in cases where the law of the country
of origin (for non‑citizens) is applied.
In recent years, the number of EU Member States
enacting laws to prohibit the corporal punishment of
children has increased. In particular, 16 Member States
have prohibited corporal punishment of children in all
settings: the home, schools, penal system and care
settings.68 During the last five years, nine Member
States have received recommendations to prohibit
corporal punishment in the Universal Periodic Review
carried out by the UN Human Rights Council: Belgium,69
Estonia,70 Ireland,71 Italy,72 Lithuania,73 Malta,74
Slovakia,75 Slovenia76 and the United Kingdom.77
Regional mechanisms were used in 2013 to challenge the
legality of physical punishment of children. In July, the
European Committee on Social Rights declared a series
of complaints admissible under its collective complaints
procedure; they claim that Belgium, Cyprus,
Czech Republic, France, Ireland, Italy and Slovenia are
not complying with their obligations under the European
Social Charter, which requires EU Member States to pro‑
tect children from violence in all settings.78 Several of
the Member States have since made commitments to
abolish all corporal punishment of children.
112
The fact that young people within the justice system
are particularly vulnerable to violence is also con‑
firmed by a recent study about the experiences of
young people in custody in five EU Member States,
namely Austria, Cyprus, the United Kingdom (only
England), the Netherlands and Romania.79 According
to the views of over 120 children, violence appears to
be a relatively common practice in custody, with staff
using violent methods to assert their positions or to
stop incidents among youth. Similar results came up in
a research published by the Ombudsman for Children
(Barnombudsmannen) in Sweden about the situation of
children in police cells and in remand prisons.80 Children
met by the researchers described police cell staff who
are tyrannical and use various means to break the child’s
spirit. These might be threats, fear of physical violence,
put‑downs and various power games. More positively,
the findings also show that, in the context of investiga‑
tive custody, prison staff only rarely use their power to
put the young inmates down. No child reported that he
or she was afraid of the staff at the remand prison, or
had experienced threats or fear of physical violence.
4.3. Europe takes aim
at child poverty
Child poverty continued to afflict the lives of many
children in Europe. Addressing child poverty was
a prominent feature in the European and national policy
agendas, as well as in the national media. Some of the
main issues were education budget cuts and the impact
of child poverty on specially vulnerable groups. The
European Commission’s adoption of a child poverty
recommendation was a step forward in 2013.
Eurostat published in 2013 a study analysing existing
data on child poverty. According to Eurostat, in 2011,
27 % of children (aged 0–17) in the EU-27 were at risk
of poverty or social exclusion, compared with 24 % of
adults (18–64) and 20 % of the elderly (65 or over).
Moreover, 49 % of children whose parents’ level of
education was low were at risk of poverty, compared
with 7.5 % of children whose parents’ level of education
was high. Children with a migrant background were at
a greater risk of poverty than children whose parents
were native born (13 points higher). As regards living
conditions, 18 % of single‑parent households were
severely materially deprived, compared with 9.6 % of
two‑parent households with dependent children.81
4.3.1.
European Commission offers
guidance on promoting
children’s well‑being
Following the conclusions on child poverty and social
exclusion agreed by the Council of the European Union
The rights of the child and the protection of children
in 2012, the European Commission adopted in
February 2013 the recommendation Investing in chil‑
dren: Breaking the cycle of disadvantage.82 The recom‑
mendation provides guidance to Member States on how
to tackle child poverty and promote children’s
well‑being, and sets up a common European frame‑
work, based on recognition of children as rights holders.
By doing so, it takes a step away from the dominant
paradigm of seeing children solely as dependents,
towards an emphasis on children’s independence.
“While policies addressing child poverty are primarily the
competence of Member States, a common European
framework can strengthen synergies across relevant policy
areas, help Member States review their policies and learn
from each other’s experiences in improving policy
efficiency and effectiveness through innovative
approaches, whilst taking into account the different
situations and needs at local, regional and national level”.
European Commission (2013), Commission Recommendation of 20 Febru‑
ary 2013, Investing in children: Breaking the cycle of disadvantage,
Brussels, 20 February 2013
The European Commission recommends that Member
States organise and implement policies to address child
poverty and social exclusion, promoting children’s
well‑being, through strategies based on three pillars:
•• access to adequate resources – support parent’s
participation in the labour market and provide for
adequate living standards through a combination of
benefits;
•• access to affordable quality services 
– reduce
inequality at a young age by investing in early
­
childhood education and care, improve education
systems’ impact on equal opportunities, improve
the responsiveness of health systems to address
the needs of disadvantaged children, provide chil‑
dren with safe, adequate housing and living envi‑
ronment, and enhance family support and the qual‑
ity of alternative care settings;
•• children’s right to participate 
– support the
­participation of all children in play, recreation, sport
and cultural activities and put in place mechanisms
that promote children’s participation in decision
making that affects their lives.
The Commission also recommends developing
­implementation and monitoring mechanisms, and
strengthening the use of research. The recommendation
includes a set of indicators to monitor child well‑being.
The Member States should make full use of relevant EU
instruments, by addressing child poverty and social
exclusion as a key issue within the Europe 2020 Strategy
and by mobilising the relevant EU financial instruments.
Following from the Eu ro pea n Com mission’s
­recommendation, the European Platform for Investing
in Children was launched in early 2013. It is an online
platform managed by the European Commission’s
Directorate‑General for Employment, Social Affairs and
Inclusion. The platform is a tool to share the best of
policy making for children and their families, and foster
cooperation and mutual learning in the field.83
Provision of childcare services is essential to ensure
parents can work. There are clear linkages between
child poverty and parental unemployment. To reach the
EU’s employment targets and improve the overall eco‑
nomic situation, it is essential that more parents work,
especially women. The European Commission in
a 2013 report addressed recommendations to 11 Member
States on female employment, childcare availability and
quality, full‑day school places and care services. The
report finds that just eight Member States, Belgium,
Denmark, France, the Netherlands, Slovenia, Spain,
Sweden and the United Kingdom, have met the targets
agreed by the European Council on availability and
accessibility of childcare services.84
4.3.2. Member States seek solution
to child poverty
UNICEF published a study of child well‑being in the
world’s 29 most advanced economies.85 Five dimen‑
sions of children’s lives have been considered: material
well‑being, health and safety, education, behaviours
and risks, and housing and environment. In total,
26 internationally comparable indicators have been
included in the overview. The key findings show the
Netherlands as the clear leader and as the only country
ranked among the top five countries in all dimensions
of child well‑being. Nordic EU Member States – Finland
and Sweden – sit just below the Netherlands at the top
of the child well‑being table. Three southern Member
States – Italy, Portugal and Spain – are in the bottom
half of the table. The three poorest countries surveyed,
Latvia, Lithuania and Romania, together with
crisis‑struck Greece and one of the richest, the United
States of America, occupy the bottom five places. The
EU as a whole (except for Bulgaria, Croatia, Cyprus and
Malta, which were not included in the survey) is ranked
worse (15.6) than some non‑EU countries at 12.12
(Canada, Iceland, Norway, Switzerland and the USA).
EU Member States have also produced their own data or
studies on child well‑being and child poverty. Despite the
favourable results for the Netherlands in the UNICEF
research, the Dutch Ombudsman for Children produced
in June a report on poverty among children, which con‑
cluded that one in nine Dutch children are growing up in
poverty.86 The report examined the policies of 198 out of
408 municipalities to combat child poverty, given their
key role in fighting poverty. Only three municipalities
have policies specifically targeting children living in pov‑
erty. The Ombudsman for Children advised municipalities
to provide a Children’s Package to households with
113
Fundamental rights: challenges and achievements in 2013
incomes below a certain threshold. Within a week after
the report was released, 26 municipalities announced
that they would provide such a Children’s Package.87
In 2013, the Central Statistical Office in Poland published
a report on poverty showing that young people, including
children, are the social groups at the greatest risk of
poverty. In 2012, 10 % of people aged under 18 experi‑
enced extreme poverty.88 The Statistics Office of Estonia
published, in its blog, data on relative poverty to show
that every sixth child in Estonia was living below the
relative poverty line and one child in 11 was below the
absolute poverty line or in deep material deprivation
in 2011. According to this information, there have been
no significant changes in the percentages since 2007.89
In the United Kingdom, the Office of the Children’s
Commissioner published a child rights impact assessment
of budget decisions made between 2010 and 2015. The
findings were worrying.90 The assessment concludes
that, despite some progressive policies and the apparent
commitment of the United Kingdom government, “fami‑
lies with children have lost more as a result of the eco‑
nomic policies modelled than those without children, and
some of the most vulnerable groups have lost the most.”91
The impact of the financial crisis on women with
­children is also affecting children’s standard of living.
In Slovakia, a report on gender equality concludes that
the crisis has significantly worsened the financial situ‑
ation of mothers with small children, which may have
deepened the poverty of families.92 The crisis has pro‑
voked a massive transfer of women into the sphere of
unpaid jobs; according to the report’s authors, this has
been caused by the steep increase in childcare fees.
National committees of UNICEF have also produced studies
on child poverty in Germany, Greece93 and Spain.94 The
survey in Germany found that, between 2000 and 2010,
8.6 % of children in Germany experienced long‑term
poverty because they lived in households earning less
than 60 % of the average income.95
Several EU Member States have policies that address
poverty in general, or which target families specifically.
In addition, other Member States have action plans or
other policies to target child poverty directly. In June 2013,
Belgium adopted a national action plan to fight child
poverty. It aims to implement the European Commission
Recommendation Investing in children: Breaking the cycle
of disadvantage. The plan is a result of collaborative work
between the federal government, the communities, the
regions and other stakeholders, and includes a total of
140 actions across the three pillars. The plan stresses,
among other things, the importance of improved access
to work and financial support for families with children,
helping parents to combine work and family, and the
promotion of children’s participation in social activities,
leisure time and cultural and sporting events.96
114
Promising practice
Researching the lives of children
Growing Up in Ireland is a national study of chil‑
dren, the results of which will feed into different
governmental policy areas. The study seeks to
examine the factors that contribute to or under‑
mine the well‑being of children in contemporary
Irish families. It was launched in 2006 as part of
the National Children’s Strategy. The research will
take place over a number of years and involves
examining the progress and well‑being of the
same group of children (about 20,000 individuals)
on a number of occasions at important points
throughout their childhood. It includes qualitative
and quantitative research methods.
The most recent report, published in Septem‑
ber 2013, noted that the impact of poverty on
children was already apparent by three years of
age. Other areas covered by the reports are
well‑being, education, health, family situation
and other social issues.
The project has set up a Children’s Advisory Fo‑
rum formed of 84 children to make sure the voic‑
es of children are heard within the study. Their
role is to advise the researchers on how best to
run the study and to make sure views and opin‑
ions of children and young people are taken into
consideration when making decisions.
Growing Up in Ireland is a government study
funded by the Department of Children and Youth
Affairs, in association with the Department of So‑
cial Protection and the Central Statistics Office.
For more information, see: www.growingup.ie
The Spanish National Action Plan for Social
Inclusion 2013–201697 integrates all the Spanish policies
against poverty and social exclusion and includes
240 measures intended to rescue 1.5 million people from
poverty, in accordance with the Europe 2020 Strategy.
The plan is the first to include the fight against child
poverty as a top priority and a cross‑cutting objective,
as well as a Special Fund intended to cover children’s
basic needs (€17 million). The total funds assigned to
the plan amount to €136,600 million.
“During the past few years, some of our member
institutions have seen their areas of action reduced, human
and material resources cut and even their very existence
called into question.”
European Network of Ombudspersons for Children (2012), Position paper
on the consequences of the economic crisis on independent children’s
rights institutions, October 2012
Bulgaria included a child objective within its newly
adopted National Strategy for Reduction of Poverty
and Social Inclusion 2020. One of its main aims is
The rights of the child and the protection of children
to reduce the current number of children living in
poverty by 78,000.98 Germany’s Federal Council
passed in July 2013 the Act Easing Administration in
the Area of Child and Youth Welfare Services, which
should improve access to childcare and youth care for
low‑income parents and simplify procedures with youth
welfare offices.99
Child poverty and education
The financial crisis has produced a number of cuts in
education expenditure in EU Member States. According
to a 2013 report published by the European Commission,100
20 EU Member States cut their national education
budgets in 2011–2012. Cuts of more than 5 % were
observed in Croatia, Cyprus, Greece, Hungary, Italy,
Latvia, Lithuania, Portugal, Romania and the United
Kingdom (Wales), whereas decreases between 1 % and
5 % were seen in Belgium (French Community),
Bulgaria, the Czech Republic, Estonia, France, Ireland,
Poland, Slovak ia, Slovenia, Spain a n d t h e
United Kingdom (Scotland).
Some EU Member States took several initiatives to
address specifically the issue of poverty and access to
education. School drop‑out rates remain a problem that
has to be countered in some Member States. Often the
reasons are family poverty, remoteness of small villages
from school, low level of education of the parents,
healthcare problems, poor language skills and discrimi‑
natory attitudes. According to UNICEF research, Bulgaria
has the lowest average drop‑out age (14.3 years) among
the EU Member States.101 The government adopted
a strategy for the prevention and reduction of the pro‑
portion of children dropping out of school 2013–2020,
to ensure equal access to students and to support their
families by offering textbooks and assistance for the
purchase of compulsory books.102
Finland, which is one of the countries ranked highest
by the Programme for International Students
Assessment (PISA), is considering increasing the age of
compulsory education. The government introduced in
August 2013 a structural policy programme on boosting
economic growth. It aims to ensure that young people
are trained and enter working life. To achieve this,
pre‑school will be made obligatory, secondary school
attendance increased and the age of compulsory
schooling raised from 16 to 17 years.103
Austria modified its School Allowance Act,104 introducing
a significant change to the way school allowance is
assigned to children in need (e.g. covering costs for
studying in specialised schools away from the family
home, or transport costs). The granting or the amount
of a school allowance is dependent not on good grades
any more, but only on the financial and social situation
of the family. The former system also required children
to be good students.
When it comes to poverty and access to education,
a number of groups are particularly affected by lack
of resources or by high drop‑out rates. Among those
are migrant children, Roma children and children
with disabilities.
The European Commission acknowledged the case of
migrant children and the difficulties in accessing school
in a report presented in April 2013.105 The report says
that newly arrived migrant children are more likely to
face segregation and end up in schools with fewer
resources. This leads to underperformance and a high
probability that the children will drop out of school
early. The study suggests that EU Member States
should provide targeted educational support for
migrant children, such as specialist teachers, and sys‑
tematic involvement of parents and communities to
improve their integration. The study examines national
policies in support of newly arrived migrant children in
15 Member States. It finds that Denmark and Sweden
have the best models, based on offering targeted sup‑
port and a reasonable level of autonomy for schools
(for more information on asylum and migration,
see Chapter 1).
In the United Kingdom, the Office of the Children’s
Commissioner for England published a study on the
experiences of disabled children living in poverty.106 It
found that some disabled and young people were living
without adequate heat, food and housing, and that they
faced clear barriers in accessing a range of services
(health, education, play and leisure activities) in com‑
parison with other children. Although there were posi‑
tive stories of local authority and school support, there
were also cases of parents experiencing difficulties in
accessing appropriate and stimulating learning oppor‑
tunities, families having to travel long distances to
receive appropriate education services, and insufficient
personal assistance and support being provided
in some areas.
“I am deeply concerned that limited attention is being paid
to the risks of child labour in Europe. In most countries
officials are aware of the problem, but few are willing to
tackle it. That data and figures are almost non‑existent or
highly approximate is a point of worry in itself. One cannot
fight a problem without information about its extent,
character and effects.”
Muižnieks, N., Council of Europe Commissioner for Human Rights (2013),
Child labour in Europe: A persisting challenge, Human Rights Comment,
20 August 2013
FRA research in 11 EU Member States shows that one
out of 10 Roma children of compulsory school age in
Greece and Romania are working outside their home.
Working conditions are generally unsafe, as their
occupation mostly consists of collecting objects for
reselling or recycling, or begging on the street for
money 107 (see also Chapter 7 for more information
on Roma children).
115
Fundamental rights: challenges and achievements in 2013
FRA ACTIVITY
Mapping child protection in Europe
The European Commission plans to develop EU
guidelines on child protection systems. This is en‑
visaged in the EU Strategy towards the Eradication
of Trafficking in Human Beings108 and in line with
the EU Agenda for the Rights of the Child and the
identified need to gather data to fill the gaps in
knowledge about the situations and needs of the
most vulnerable groups of children.
To develop the guidelines, the Commission has
asked FRA to analyse the child protection systems
in the 28 Member States. The mapping will focus
in particular on the national legal framework, the
structure and functions of the current national
system, care by state and non‑state actors, in‑
ter‑agency cooperation, cross‑border coopera‑
tion, data collection and monitoring.
The results will be published at the end of 2014.
Outlook
Translating the European Commission’s r­ ecommendation
on child poverty into reality at national level will be
a challenge, especially in EU Member States that are
still struggling with the impact of the economic crisis.
Member States will need to reassess their policies
addressing child welfare in all its aspects – material
deprivation and access to education, health and social
services – to ensure that they are in the best interests
of the child, in line with the United Nations Convention
of the Rights of the Child and the EU Charter on
Fundamental Rights. The economic upturn that may be
reaching some Member States should allow policies
that improve child welfare provisions, especially for
those children in vulnerable situations, such as asylum
seekers, irregular migrants and Roma.
116
EU Member States had to transpose two important
directives into national law in 2013, one on trafficking,
sexual abuse and exploitation and one on child pornog‑
raphy. These directives improve the way that justice
systems respond to child victims of or witnesses to
crimes. The implementation of this new legal frame‑
work will require policy and skills training in
2014 and beyond.
The EU Victims’ Directive, the eventual adoption of
a directive dealing with the protection of children sus‑
pected or accused in criminal proceedings and
a common framework for child protection will also spark
developments at national level. EU Member States will
be required to adapt their criminal law provisions and
child protection systems while also ensuring that the
Council of Europe Guidelines on child‑friendly justice
are fully taken into account. Several upcoming European
Commission and FRA studies on children and justice will
help identify challenges and promising practices and
will further guide national‑level improvements.
Collecting data regarding children and justice, as well
as in other child rights’ fields, remains fundamental to
effectively address violations of children’s rights.
More EU Member States should ratify the third protocol
to the Convention on the Rights of the Child, which
entered into force in April 2014, to allow children to
bring individual claims of human rights violations
against their countries.
The rights of the child and the protection of children
Index of Member State references
EU Member State
Page
AT�������������������������������������������������������������������������� 110, 108, 111, 112, 115
BE������������������������������������������������������������������� 106, 107, 111, 112, 113, 114, 115
BG�������������������������������������������������������������������������� 107, 111, 113, 114, 115
CY������������������������������������������������������������������������������ 111, 112, 113, 115
CZ���������������������������������������������������������������������������������� 105, 112, 115
DE��������������������������������������������������������������� 103, 105, 107, 109, 111, 112, 114, 115
DK�������������������������������������������������������������������������� 107, 111, 112, 113, 115
EE����������������������������������������������������������������������� 102, 104, 106, 112, 114, 115
EL��������������������������������������������������������������������������� 107, 111, 113, 114, 115
ES������������������������������������������������������������������������ 103, 107, 111, 113, 114, 115
FI������������������������������������������������������������������������������� 107, 111, 113, 115
FR������������������������������������������������������������������������������� 107, 112, 113, 115
HR����������������������������������������������������������������������� 104, 107, 111, 112, 113, 115
HU��������������������������������������������������������������������������������� 107, 108, 115
IE��������������������������������������������������������������������������� 106, 111, 112, 114, 115
IT���������������������������������������������������������������� 106, 107, 109, 110, 111, 112, 113, 115
LT��������������������������������������������������������������������������� 106, 107, 112, 113, 115
LU������������������������������������������������������������������������������ 106, 107, 109, 112
LV�������������������������������������������������������������������������� 106, 107, 109, 113, 115
MT������������������������������������������������������������������������������ 107, 111, 112, 113
NL������������������������������������������������������������������� 106, 107, 109, 110, 111, 112, 113
PL������������������������������������������������������������������������������ 105, 107, 114, 115
PT������������������������������������������������������������������������������ 103, 107, 113, 115
RO������������������������������������������������������������������������������ 107, 112, 113, 115
SE��������������������������������������������������������������������������� 107, 111, 112, 113, 115
SI��������������������������������������������������������������������������� 102, 107, 112, 113, 115
SK������������������������������������������������������������������������������ 103, 105, 112, 115
UK������������������������������������������������������������������� 105, 106, 111, 112, 113, 114, 115
117
Fundamental rights: challenges and achievements in 2013
Endnotes
All hyperlinks accessed on 30 April 2014.
1
United Nations (UN), Optional Protocol to the Convention on
the Rights of the Child on a Communications Procedure,
9 June 2011, https://treaties.un.org/doc/source/
signature/2012/ctc_4-11d.pdf.
2
Council of Europe, Committee of Ministers (2010),
Guidelines of the Committee of Ministers of the Council of
Europe on Child‑Friendly justice, 17 November 2010,
www.coe.int/t/dghl/standardsetting/childjustice/
Guidelines%20on%20child-friendly%20justice%20and%20
their%20explanatory%20memorandum%20_4_.pdf.
18 European Court of Human Rights, Vronchenko v. Estonia,
No. 59632/09, 18 July 2013, http://hudoc.echr.coe.int/sites/
eng/pages/search.aspx?i=001-122431.
19 Belgium, Wet betreffende de invoering van een familie- en
Jeugdrechtbank/Loi portant création d’un tribunal de la
famille et de la jeunesse, 30 July 2013, www.ejustice.just.
fgov.be/mopdf/2013/09/27_2.pdf.
20 Italy, Disposizioni in materia di riconoscimento dei figli
naturali, 17 December 2012.
3
European Commission, An EU agenda for the rights of the
child, COM(2011) 60 final, Brussels, 15 February 2011,
http://ec.europa.eu/justice/policies/children/docs/
com_2011_60_en.pdf.
21 Italy, Corte Suprema di Cassazione, Sezione Prima Civile,
Judgment No. 11687 (1115), 15 May 2013,
www.marinacastellaneta.it/blog/wp-content/uploads/
2013/06/11687.pdf.
4
Directive 2012/29/EU of the European Parliament and of the
Council of 25 October 2012 establishing minimum standards
on the rights, support and protection of victims of crime in
the EU OJ 2012 L 315/55, http://eur-lex.europa.eu/
LexUriServ/LexUriServ.do?uri=OJ:L:2012:315:0057:0073:E
N:PDF.
22 UN, Committee on the Rights of the Child, General Comment
No 15 on the right of the child to the enjoyment of the
highest attainable standard of health (Art. 24), CRC/C/GC/15,
www2.ohchr.org/english/bodies/crc/docs/GC/CRC-C-GC-15_
en.doc.
5
Directive 2011/92/EU of the European Parliament and of the
Council of 13 December 2011 on combating the sexual abuse
and sexual exploitation of children and child pornography,
OJ 2011 L 335/1, http://eur-lex.europa.eu/LexUriServ/
LexUriServ.do?uri=OJ:L:2011:335:0001:0014:EN:PDF.
6
European Commission (2013), Proposal for a Directive of the
European Parliament and of the Council on procedural
safeguards for children suspected or accused in criminal
proceedings, 27 November 2013, COM(2013) 822 final,
Brussels.
7
Poland, Kodeks Karny i Kodeks Postępowania Karnego.
8
Czech Republic, Zákon o obětech trestných činů,
30 January 2013, www.zakonyprolidi.cz/cs/2013-45.
9
Germany, Gesetz zur Stärkung der Rechte von Opfern
sexuellen Missbrauchs, BGBl. 2013 I No. 32, 29 June 2013.
10 Slovakia, Zákon č. 301/2005 Z.z. (Trestný poriadok), which
took effect on 1 August 2013.
11 United Kingdom, Ministry of Justice (2013), Code of practice
for victims of crime, Chapter 3, https://www.gov.uk/
government/uploads/system/uploads/attachment_data/
file/254459/code-of-practice-victims-of-crime.pdf.
12 Poland, Ustawa z dnia 30 sierpnia 2013 o zmianie ustawy
o postępowaniu w sprawach nieletnich oraz niektórych
innych ustaw, 30 August 2013.
13 Council of Europe, European Committee for the Prevention
of Torture and Inhuman or Degrading Treatment or
Punishment (CPT), Report on Luxembourg, Strasbourg,
29 April 2004, www.cpt.coe.int/documents/
lux/2004-12-inf-fra.htm#_Toc48357642.
23 UN, Annual report of the Special Representative of the
Secretary‑General on Violence against Children, A/68/274,
6 August 2013, http://srsg.violenceagainstchildren.org/
sites/default/files/documents/docs/A-68-274_EN_0.pdf.
24 World Health Organization (WHO), World Health
Organization Regional Office for Europe (2013), European
report on preventing child maltreatment, www.euro.who.
int/__data/assets/pdf_file/0019/217018/European-Repor
t-on-Preventing-Child-Maltreatment.pdf.
25 Regulation (EU) No 606/2013 of the European Parliament
and of the Council of 12 June 2013 on mutual recognition of
protection measures in civil matters, http://eur-lex.europa.
eu/LexUriServ/LexUriServ.do?uri=OJ:L:2013:181:0004:0012:e
n:PDF.
26 Council of Europe, Convention on the protection of children
against sexual exploitation and sexual abuse, CETS No. 201,
2007, http://conventions.coe.int/Treaty/EN/treaties/
html/201.htm.
27 Council of Europe, Convention on preventing and combating
violence against women and domestic violence, CETS
No. 210, 2011, www.conventions.coe.int/Treaty/EN/
treaties/html/210.htm.
28 Directive 2011/93/EU of the European Parliament and of the
Council of 13 December 2011 on combating the sexual abuse
and sexual exploitation of children and child pornography,
and replacing Council Framework Decision 2004/68/JHA,
OJ 2011 L 335/1, http://eur-lex.europa.eu/LexUriServ/
LexUriServ.do?uri=OJ:L:2011:335:0001:0014:EN:PDF.
29 Austria, Sexualstrafrechtsänderungsgesetz,
BGBl I Nr. 116/2013, www.ris.bka.gv.at/Dokumente/
BgblAuth/BGBLA_2013_I_116/BGBLA_2013_I_116.html.
14 Luxembourg, Chambre des Deputés (2013), Draft bill
No. 6593 on the security unit of the socio‑educational
centre of the State, www.gouvernement.lu/salle_presse/
conseils_de_gouvernement/2013/06-juin/14-conseil/.
30 Austria, Bundesgesetz über die Grundsätze für Hilfen für
Familien und Erziehungshilfen für Kinder und Jugendliche,
Bundes- Kinder- und Jugendhilfegesetz, BGBl I Nr. 69/2013,
www.ris.bka.gv.at/Dokumente/BgblAuth/BGBLA_2013_
I_69/BGBLA_2013_I_69.pdf.
15 Netherlands, Kinderombudsman (2013),
Kinderrechtenmonitor 2013, The Hague,
www.dekinderombudsman.nl/ul/cms/fck-uploaded/
Kinderrechtenmonitor2013-drukproef.pdf.
31 Hungary, Alapvető Jogok Biztosának Hivatala (2011), Report
No. AJB-1472/2011 about tackling child prostitution,
www.obh.hu/allam/aktualis/htm/kozlemeny20111205.htm.
16 UK, Northern Ireland, Department of Justice (2013),
Consultation: Custodial arrangements for children in Northern
Ireland, www.dojni.gov.uk/index/public-consultations/
current-consultations/consultation-custodial-arrangeme
nts-for-children-in-northern_ireland.pdf.
118
17 Latvia, Noteikumu projekts ‘Kārtība, kādā policijas
noskaidro, vai bērnam ir īpašas vajadzības, pieaicina
kompetentu speciālistu un nodrošina apstākļus bērna īpašo
vajadzību apmierināšanai’, www.mk.gov.lv/doc/2005/
IEMNot_231013_ipas_vajadz-1.1935.doc.
32 Latvia, Grozījumi Bērnu tiesību aizsardzības likumā,
30 May 2013.
33 Italy, Ratifica ed esecuzione della Convenzione del Consiglio
d’Europa sulla prevenzione e la lotta contro la violenza nei
confronti delle donne e la violenza domestica, 1 July 2013.
The rights of the child and the protection of children
34 Netherlands (2013), ‚Verplichte meldcode huiselijk geweld
en kindermishandeling‘, Staatsblad van het Koninkrijk der
Nederlanden, Vol. 2013, No. 247, https://zoek.
officielebekendmakingen.nl/stb-2013-247.pdf.
51 EPP Group (2013), Bullying: Towards the establishment of
a European Day against bullying and school violence,
17 January 2013, www.eppgroup.eu/press-release/Towardsa-European-Day-against-bullying-%26-school-violence.
35 Netherlands, Ministerie van Volksgezondheid, Welzijn en
Sport (2013), Model reporting code: Domestic violence and
child abuse. Action plan for responding to signs of domestic
violence and child abuse, www.government.nl/
documents-and-publications/reports/2013/03/14/mode
l-reporting-code-domestic-violence-and-child-abuse.html.
52 FRA (2013), EU LGBT survey: Results at a glance,
Luxembourg, Publications Office, http://fra.europa.eu/en/
survey/2012/eu-lgbt-survey.
36 Netherlands, Inspectie voor de Gezondheidszorg (2013),
Invoering van meldcode(s) huiselijk geweld en kindermis‑
handeling binnen een aantal gezondheidszorgsectoren nog
onvoldoende, Utrecht, www.igz.nl/zoeken/download.aspx?
download=Invoering+van+meldcode(s)+huiselijk+geweld+
en+kindermishandeling+binnen+een+aantal+gezondheidsz
orgsectoren+nog+onvoldoende.pdf.
54 Finland (2013), Hallituksen esitys eduskunnalle oppilas- ja
opiskelijahuoltolaiksi ja eräiksi siihen liittyviksi laeiksi.
37 Netherlands, Ministerie van Veiligheid en Justitie (2013),
Plan van Aanpak Kindersekstoerisme, www.rijksoverheid.
nl/bestanden/documenten-en-publicaties/rapporten/
2013/10/10/bijlage-plan-van-aanpak-kindersekstoerisme/
lp-v-j-0000004187.pdf.
38 Germany (2013), Fonds sexueller Missbrauch im familiaren
Bereich, www.fonds-missbrauch.de/fileadmin/content/
Flyer_FSM_2.pdf.
39 Germany, Bundesministerium für Familie, Senioren, Frauen
und Jugend (2013), ‘Bundesregierung errichtet Fonds
Sexueller Missbrauch zur Hilfe von Betroffenen’, press
release, 29 April 2013.www.bmfsfj.de/BMFSFJ/
aktuelles,did=197690.html
40 Europol (2013), Socta 2013 public version EU serious and
organised crime threat assessment, Europol, The Hague,
www.europol.europa.eu/content/eu-serious-and-organise
d-crime-threat-assessment-socta.
41 Europol, European Cybercrime Centre (2013), Virtual
Global Taskforce environmental scan 2012, www.
virtualglobaltaskforce.com/wp-content/uploads/2013/05/
VGT-Environmental-Scan.pdf.
42 European Commission (2013), Preparing for a fully
converged audiovisual world: Growth, creation and values,
COM/2013/0231 final, Brussels, 24 April 2013, http://eur-lex.
europa.eu/LexUriServ/LexUriServ.do?uri=COM:2013:0231:FI
N:EN:HTML.
43 Europol, A collective EU response to cybercrime,
­w ww.europol.europa.eu/ec3.
44 Coface, Delete cyberbullying, ­http://deletecyberbullying.
eu/about/.
45 Luxembourg, Chambre des Députés (2012), 1) approbation
de la Convention du Conseil de l’Europe sur la
cybercriminalité ouverte à la signature à Budapest le
23 novembre 2001, 2) approbation du Protocole additionnel
à la Convention sur la cybercriminalité, relative
à l’incrimination d’actes de nature raciste et xénophobe.
46 Italy, Osservatorio per il contrasto della pedofilia e della
pornograia minorile, www.osservatoriopedofilia.gov.it/.
47 Netherlands, Kinderombudsman (2013),
Kinderrechtenmonitor 2013, The Hague,
www.dekinderombudsman.nl/ul/cms/fck-uploaded/
Kinderrechtenmonitor2013-drukproef.pdf.
48 Netherlands, Hoge Raad (2013), Case No. S12/01819,
ECLI:NL:HR:2013:BZ9941, 14 May 2013, http://deeplink.
rechtspraak.nl/uitspraak?id=ECLI:NL:HR:2013:BZ9941.
49 Spain (2013), Plan stratégico de infancia y adolescencia
2013–2016, 5 April 2013, www.observatoriodelainfancia.
msssi.gob.es/documentos/PENIA_2013-2016.pdf.
50 Terre des Hommes (2013), Stop webcam child sex tourism,
www.terredeshommes.org/webcam-child-sex-tourism/.
53 See FRA (2013), Survey data explorer: EU LGBT survey 2012,
http://fra.europa.eu/DVS/DVT/lgbt.php.
55 Bulgaria, Министерски съвет (2013), Доклад за
изпълнението на „Национална програма за закрила на
детето за 2012 г.“, Sofia.
56 Greece, Ministry Circular 159704/Γ7/17-12-2012, ­http://users.
sch.gr/skontax/autosch/joomla15/egkyklioi/idrysh.pdf.
57 Greece, information not publicly available but widely
accessible through several media sources, available at:
www.tanea.gr/news/greece/article/5094019/parathrhthri
o-kata-ths-bias-treis-stoys-deka-mathhtes-einai-thy
mata-endosxolikhs-bias/.
58 Netherlands, Ministerie van Onderwijs, Cultuur en
Wetenschappen (2013), Plan van aanpak tegen pesten,
www.rijksoverheid.nl/documenten-en-publicaties/
rapporten/2013/03/25/plan-van-aanpak-tegen-pesten.html.
59 Netherlands, Ministerie van Onderwijs, Cultuur en
Wetenschappen (2013), ‘Onderzoek naar effectieve
anti‑pestprogramma’s’, Press release, 2 December 2013,
www.rijksoverheid.nl/nieuws/2013/12/02/onderzoek-naa
r-effectieve-antipestprogramma-s.html.
60 Netherlands, Inspectie Jeugdzorg (2013), ‘Onderzoek naar
aanwezigheid Meldcode en verklaring Omtrent het Gedrag‘,
press release, 21 November 2013, www.inspectiejeugdzorg.
nl/actueel/nw_detail.asp?id=0354.
61 Greece, Συνήγορος του Πολίτη (2013), Ειδική Έκθεση «Το
φαινόμενο της ρατσιστικής βίας στην Ελλάδα και
η αντιμετώπισή του», September 2013, www.synigoros.gr/
resources/docs/eidikiekthesiratsistikivia.pdf.
62 United Kingdom, ChildLine (2013), Can I tell you something?
What’s affecting children in 2013, www.nspcc.org.uk/
news-and-views/media-centre/press-releases/2014/
childline-report/childline-report_can-i-tell-you-something_
wdf100354.pdf.
63 European Commission (2013), Communication form the
Commission to the European Parliament and the Council:
Towards the elimination of female genital mutilation,
COM(2013) 833 final, http://eur-lex.europa.eu/LexUriServ/
LexUriServ.do?uri=COM:2013:0833:FIN:EN:PDF.
64 Germany, Gesetz zur Änderung des Strafgesetzbuches:
Strafbarkeit der Verstümmelung weiblicher Genitalien,
BGBl I 2013 No. 58, 27 September 2013, p. 3671, www.bgbl.
de/Xaver/start.xav?startbk=Bundesanzeiger_
BGBl&jumpTo=bgbl113s3671.pdf.
65 Council of Europe, Parliamentary Assembly (2013),
Children’s right to physical integrity, Resolution 1952,
1 October 2013, http://assembly.coe.int/ASP/Doc/
XrefViewPDF.asp?FileID=20174&Language=EN.
66 Nordic Ombudsmen for Children and Pediatric Experts
(2013), Resolution: Let boys decide for themselves whether
or not they want to be circumcised, 30 September 2013,
www.crin.org/en/library/news-archive/male-circumcisio
n-nordic-ombudspersons-seek-ban-non-therapeutic-male.
67 Frisch, M. et al. (2013), ‘Cultural Bias in the AAP’s 2012
Technical report and policy statement on Male
circumcision’, Pediatrics, Volume 131, No. 4, April 2013,
abstract available at: http://pediatrics.aappublications.org/
content/131/4/796.full.pdf.
119
Fundamental rights: challenges and achievements in 2013
68 Global Initiative to End All Corporal Punishment of
Children (2013), Prohibiting corporal punishment: Achieving
equal protection for children in EU Member States, progress
report, www.endcorporalpunishment.org/pages/pdfs/
reports/Europe%20Report%20web.pdf.
69 UN, Human Rights Council (2011), Report of the Working
Group on the Universal Periodic Review, Belgium,
A/HRC/18/3, 11 July 2011.
70 UN, Human Rights Council (2011), Report of the Working
Group on the Universal Periodic Review, Estonia,
A/HRC/17/17, 28 March 2011.
71 UN, Human Rights Council (2011), Report of the Working
Group on the Universal Periodic Review, Ireland,
A/HRC/19/9, 21 December 2011.
72 UN, Human Rights Council (2010), Report of the Working
Group on the Universal Periodic Review, Italy,
A/HRC/14/L.10, 18 June 2010.
73 UN, Human Rights Council (2011), Report of the Working
Group on the Universal Periodic Review, Lithuania,
A/HRC/19/15, 19 December 2011.
74 UN, Human Rights Council (2009), Report of the Working
Group on the Universal Periodic Review, Malta, A/HRC/12/7,
4 June 2009.
75 UN, Human Rights Council (2009), Report of the Working
Group on the Universal Periodic Review, Slovakia,
A/HRC/12/7, 5 June 2009.
76 UN, Human Rights Council (2010), Report of the Working
Group on the Universal Periodic Review, Slovenia,
A/HRC/14/L.10, 18 June 2010.
77 UN, Human Rights Council (2012), Outcome of the Universal
Periodic Review: United Kingdom of Great Britain and
Northern Ireland, A/HRC/DEC/21/107, 12 October 2012.
78 Council of Europe, European Committee of Social Rights
(2013), Decisions on admissibility of cases No. 92 to
98/2013, 2 July 2013, www.coe.int/t/dghl/monitoring/
socialcharter/Complaints/Complaints_en.asp.
79 Children’s Rights Alliance for England (CRAE) (2013), Ending
violence against children in custody, London, CRAE,
www.crae.org.uk/media/29853/speaking_freely_ending_
violence_against_children_in_custody_european_
research_report_condensed.pdf.
80 Sweden, Barnombudsmannen (2013), Från insidan. Barn och
unga berättar om tillvaron i arrest och häkte.
Barnombudsmannens årsrapportering 2013,
Barnombudsmannen, Stockholm.
81 Eurostat (2013), Children were the age group at the highest
risk of poverty or social exclusion in 2011, Statistics in Focus
Vol. 4, Brussels, European Commission, available at:
http://epp.eurostat.ec.europa.eu/cache/ITY_OFFPUB/
KS-SF-13-004/EN/KS-SF-13-004-EN.PDF.
82 European Commission (2013), Commission Recommendation
of 20 February 2013, Investing in children: Breaking the
cycle of disadvantage, Brussels, http://ec.europa.eu/
justice/fundamental-rights/files/c_2013_778_en.pdf.
83 European Platform for Investing in Children (EPIC) (2013),
http://europa.eu/epic.
84 European Commission (2013), Barcelona objectives,
Luxembourg, Publications Office, http://ec.europa.eu/justice/
gender-equality/files/documents/130531_barcelona_en.pdf.
120
87 Netherlands, Ministerie van Sociale Zaken en
­Werkgelegenheid (2013), ‘Intensivering armoede- en
schuldenbeleid’, letter sent to House of Representatives
(Tweede Kamer der Staten‑Generaal), No. 20130000090830, 3 July 2013, www.rijksoverheid.nl/
ministeries/szw/documenten-en-publicaties/
kamerstukken/2013/07/03/intensivering-armoede-enschuldenbeleid.html.
88 Poland, Główny Urząd Statystyczny (2013), Ubóstwo
w Polsce w świetle badań GUS, report, Warsaw, Główny
Urząd Statystyczny.
89 Estonia, Statistikaamet (2013), ‘Iga kuues Eesti laps elab
suhtelises vaesuses’, Statistikablogi, 30 May 2013, http://
statistikaamet.wordpress.com/tag/suhteline-vaesus/.
90 United Kingdom, Office of the Children’s
Commissioner (2013), A child rights impact assessment of
budget decisions: Including the 2013 Budget, and the
cumulative impact of tax‑benefit reforms and reductions in
spending on public services 2010–2015, http://dera.ioe.
ac.uk/18034/1/A_Child_Rights_Impact_Assessment_of_
Budget_Decisions.pdf.
91 Ibid., p. 5.
92 Slovakia, Ministerstvo práce, sociálnych vecí a rodiny
SR (2013), Správa o rodovej rovnosti za rok 2012, May 2013.
93 UNICEF, Greek National Committee (2013), Η κατάσταση
των παιδιών στην Ελλάδα 2013, www.unicef.gr/pdfs/
Children-in-Greece-2013.pdf.
94 UNICEF, Spanish National Committee (2012), La infancia en
España 2012–2013: El impacto de la crisis en los niños,
www.unicef.es/sites/www.unicef.es/files/Infancia_2012_
2013_final.pdf.
95 UNICEF, German National Committee (2013), ‘UNICEF‑Bericht
zur Lage von Kindern in Deutschland 2013’, press release,
24 October 2013, www.unicef.de/kinderbeiuns.
96 Belgium (2013), Plan national de lutte contre la pauvreté
infantile, Lutter contre la pauvreté infantile et favoriser le
bien‑être des enfants, Brussels, www.mi-is.be/sites/default/
files/doc/nationaal_kinderamoedebestrijdingsplan_fr.pdf.
97 Spain, Ministerio de Sanidad, Servicios Sociales
e Igualdad (2013), Plan Nacional de Acción para la Inclusión
Social del Reino de España 2013–2016, www.msssi.
gob.es/ssi/familiasInfancia/inclusionSocial/docs/
PlanNacionalAccionInclusionSocial_2013_2016.pdf.
98 Bulgaria, Министерски съвет, Национална стратегия за
намаляване на бедността и насърчаване на
социалното включване 2020, www.strategy.bg/
FileHandler.ashx?fileId=3303.
99 Germany, Gesetz zur Verwaltungsvereindachung in der
Kinder- und Jugendhilfe, 29 August 2013, http://dipbt.
bundestag.de/extrakt/ba/WP17/508/50808.html.
100 European Commission (2013), Funding of education in
Europe 2000–2010: The impact of the economic crisis,
Euridice Report, Luxembourg, Publications Office,
http://eacea.ec.europa.eu/education/eurydice/documents/
thematic_reports/147EN.pdf.
101 UNICEF, Bulgaria (2013), Изгубено бъдеще? Изследване на
феномените на необхващане в училище, www.unicef.
bg/assets/RSN_Fianl_BUL_FINAL06n.pdf.
85 UNICEF Research Office (2013), Child well‑being in rich
countries: A comparative overview, Florence,
www.unicef-irc.org/publications/pdf/rc11_eng.pdf.
102 Bulgaria, Министерски съвет (2013), Стратегия за
превенция и намаляване дела на отпадащите
и преждевременно напуснали образователната
система 2013–2020, www.strategy.bg/
PublicConsultations/View.aspx?lang=bg-BG&Id=870.
86 Netherlands, Kinderombudsman (2013),
Kinderrechtenmonitor 2013, The Hague,
www.dekinderombudsman.nl/ul/cms/fck-uploaded/
Kinderrechtenmonitor2013-drukproef.pdf.
103 Finland, Ministry of Finance (2013), ‘A structural policy
programme to strengthen conditions for economic growth
and bridge the sustainability gap in general government
finances’, Press release 350/2013, 29 August 2013.
The rights of the child and the protection of children
104 Austria, Schülerbeihilfengesetz, BGBl. Nr. 455/1983, last
modified by BGBl. I Nr. 75/2013, www.ris.bka.gv.at/
GeltendeFassung/Bundesnormen/10009531/
Sch%c3%bclerbeihilfengesetz%201983%2c%20
Fassung%20vom%2012.11.2013.pdf.
105 European Commission (2013) Study on educational support
for newly arrived migrant children, Luxembourg,
Publications Office, http://ec.europa.eu/education/library/
study/2013/migrants_en.pdf.
106 Larkins, C., Thomas, N., Judd, D., Lloyd, J., Carter, B. and
Farrelly, N. (2013), ‘We want to help people see things our
way’: A rights‑based analysis of disabled children’s
experience of living with low income. London, Office of the
Children’s Commissioner, www.plymouth.gov.uk/
pscbseethingsourway.pdf.
107 FRA (2012), The situation of Roma in 11 EU Member States:
Survey results at a glance, Luxembourg, Publications Office,
http://fra.europa.eu/en/publication/2012/situation-roma-1
1-eu-member-states-survey-results-glance.
108 European Commission (2012), The EU strategy towards
the eradication of trafficking in human beings 2012–2016,
COM(2012) 286 final, Brussels, 19 June 2012, http://
ec.europa.eu/home-affairs/doc_centre/crime/docs/
trafficking_in_human_beings_eradication-2012_2016_
en.pdf.
121
5
Equality and non‑discrimination ������������������������������������������� 127
5.1 EU legislation on equal treatment between
persons stalls ���������������������������������������������������������������� 127
5.2 Discrimination on all grounds persists in the EU �������� 129
5.3 Discrimination hinders full participation in society ��� 131
5.4 Member States adopt measures
to counter discrimination ��������������������������������������������� 134
5.4.1 Countering discrimination on the ground
of age �������������������������������������������������������������� 134
5.4.2 Countering discrimination on the ground
of disability ����������������������������������������������������� 135
5.4.3 Countering discrimination on the grounds
of sexual orientation and gender identity ��� 137
5.5 EU deploys EU structural funds in countering
discrimination ��������������������������������������������������������������� 137
Outlook ������������������������������������������������������������������������������������ 139
Fundamental rights: challenges and achievements in 2013
UN & CoE
15 January – European Court of Human Rights (ECtHR) rules in Eweida and Others v. United Kingdom that it is unlawful
to prohibit wearing a religious symbol at work where it poses no health and safety hazard and to refuse services –
including in the exercise of public authority – to homosexual couples on grounds of religious beliefs
29 January – European Committee of Social Rights finds 22 states in breach of the prohibition of discrimination
in employment (Article 1.2 of the European Social Charter, ESC) and 12 states in violation of the right to equal
opportunities and equal treatment in matters of employment and occupation without discrimination on grounds of sex
(Article 20)
January
12 February – ECtHR rules in Vojnity v. Hungary that the complete removal of a father’s access rights on the grounds
that his religious convictions were detrimental to his son’s upbringing, without any evidence that those practices
exposed his son to a risk of actual harm, amounts to a violation of the prohibition of discrimination (Article 14 of the
European Convention on Human Rights, ECHR), read in conjunction with the right to respect for private and family life
(Article 8)
19 February – In X and Others v. Austria, the ECtHR finds that not allowing same‑sex partners to adopt their partner’s
child is discriminatory when national law allows unmarried different‑sex partners to do so
February
1 March – United Nations Committee on the Elimination of Discrimination Against Women (CEDAW) issues observations
on Austria, Cyprus, Greece and Hungary
15 March – Parliamentary Assembly of the Council of Europe (PACE) Committee on Equality and Non‑discrimination
issues a report on discrimination on the grounds of sexual orientation and gender identity
March
24 April – PACE issues a resolution on safeguarding human rights in relation to religion and belief, and protecting
religious communities from violence
April
May
26 June – PACE adopts resolution 1945 (2013) Putting an end to coerced sterilisations and castrations, as it considers
that these acts constitute grave violations of human rights
June
10 July – Committee of Ministers of the Council of Europe adopts a recommendation on gender equality and media
26 July – CEDAW issues observations on the United Kingdom
July
August
4 September – Council of Europe Commissioner for Human Rights intervenes on his own initiative in Valentin
Câmpeanu v. Romania concerning access to justice for persons with disabilities
13 September 2013 – UN Committee on the Rights of Persons with Disabilities issues Concluding observations on Austria
September
16 October – Committee of Ministers of the Council of Europe issues a recommendation on ensuring full inclusion of
children and young persons with disabilities into society
October
7 November – ECtHR rules in Vallianatos and Others v. Greece that by excluding same‑sex couples living in Greece from
registering a civil union, without giving any convincing and weighty reasons capable of justifying the exclusion, the
Greek State violates rights protected by the prohibition of discrimination (Article 14) in conjunction with the right to
respect for private and family life (Article 8) of the ECHR
7 November – In E.B. and Others v. Austria, the ECtHR rules that Austria discriminated against four gay men when it
refused to delete from their criminal record convictions under its discriminatory age of consent law
November
6 December – European Committee of Social Rights finds eight EU Member States in breach of the rights of elderly
persons (Article 23 of the ESC) on the grounds that they failed to have sufficiently comprehensive legislation
prohibiting discrimination on the ground of age
11 December – Committee of Ministers of the Council of Europe issues a recommendation on ensuring full, equal and
effective participation of persons with disabilities in culture, sports, tourism and leisure activities
December
124

EU
January
February
March
11 April – In HK Danmark, acting on behalf of Jette Ring v. Dansk Almennyttigt Boligselskab DAB and HK Danmark
acting on behalf of di Lone Skouboe Werge v. Pro Display A/S16, the CJEU interprets and clarifies the concept of
disability under the Employment Equality Directive in line with Article 1 of the United Nations Convention on the Rights
of Persons with Disabilities (CRPD)
16 April – European Commission issues a proposal on disclosure of non‑financial and diversity information by certain
large companies and groups
16 April – European Parliament adopts a Resolution on transposition and application of Council Directive 2004/113/EC
implementing the principle of equal treatment between men and women
24 April – European Commission issues a proposal on promoting free movement of citizens and businesses by
simplifying the acceptance of certain public documents in the EU
25 April – CJEU rules in Asociaţia ACCEPT v. Consiliul Naţional pentru Combaterea Discriminării that homophobic
statements by a shareholder of a football club may put a burden on the club to prove that it does not have
a discriminatory employment policy
April
30 May – European Commission refers Slovakia to the CJEU for not paying disability benefits to severely disabled
persons living in other EU Member States, as well as in Iceland, Liechtenstein, Norway and Switzerland
May
24 June – Council of the European Union issues guidelines to promote and protect the enjoyment of all human rights
by LGBT and intersex persons in the foreign policy of the EU
June
4 July – European Parliament adopts a resolution on the impact of the crisis on access to care for vulnerable groups
4 July – CJEU rules in Commission v. Italy that Italy failed to fulfil its obligations under the Employment Equality
Directive by not implementing Article 5 on the duty to provide for reasonable accommodation of persons with
disabilities
July
August
11 September – European Parliament issues a resolution on endangered languages and linguistic diversity in the
European Union
26 September – CJEU rules in HK Danmark v. Experian A/S that the practice of age‑related contribution levels in
an occupational pension scheme could be objectively justified, but national courts have to decide if they are an
appropriate and necessary measure to achieve the legitimate aim
26 September – CJEU rules in Dansk Jurist‑og Økonomforbund v. Indenrigs‑og Sundhedsministeriet that Article 6 (2) of
the Employment Equality Directive is applicable only to retirement or invalidity benefits under an occupational social
security scheme. It also rules that Articles 2 and 6 (1) of the directive must be interpreted as precluding a national
provision under which a civil servant who has reached the age at which he is able to receive a retirement pension
is denied, solely for that reason, entitlement to availability pay intended for civil servants dismissed on grounds of
redundancy
September
October
7 November – CJEU rules that lesbian, gay, bisexual and transgender (LGBT) persons may be perceived as a particular
social group for the purpose of the Qualification Directive, making them eligible for asylum in the EU if punishment for
homosexual acts is applied in their home countries
November
10 December – European Parliament adopts the EU financial package on rights and equality for 2014–2020
11 December – European Parliament adopts a resolution on women with disabilities, focusing on the discrimination
generated by the intersection of gender and disability
12 December – CJEU rules in Frédéric Hay v. Crédit agricole mutuel de Charente-Maritime et des Deux-Sèvres
that employees entering into a civil partnership with a same-sex partner in a Member State where homosexual
marriage is not possible must be granted the same benefits as those granted to their colleagues upon marriage
17 December – European Parliament adopts general provisions on the European Regional Development Fund,
the European Social Fund and the Cohesion Fund
December
125
5
Equality and
non‑discrimination
The EU benefits from a solid legal framework with which to counter discrimination, especially on grounds of
racial or ethnic origin. The European Commission’s proposal for a Horizontal Directive, designed to provide
comprehensive protection against discrimination on all grounds equally, remains stalled. Discrimination often
excludes those affected, erecting barriers that prevent some from participating in society on an equal and
non‑discriminatory footing. FRA survey results have shown, for example, that many lesbian, gay, bisexual and
transgender (LGBT) persons fear holding hands with a partner in public; one in five Jews face discrimination
or harassment; and women in the EU regularly experience harassment at work. EU Member States and EU
institutions recognise that barriers to full participation exist. Some are adopting measures to tackle the issue,
also drawing on EU funds to address discrimination and unequal treatment.
5.1
EU legislation on equal
treatment between
persons stalls
The EU enjoys a solid legal framework with which to combat
discrimination,1 but the principle of equal treatment does not
yet cover European society in all its diversity.2 To rectify this,
the European Commission proposed, in 2008, a directive on
implementing the principle of equal treatment between per‑
sons irrespective of religion or belief, disability, age or sexual
orientation, known as the Horizontal Directive.3 Five years
have passed since this proposal was made, with little pro‑
gress to report in the intervening period. The year 2013 was
no different. The Council of the European Union continued to
examine the proposal in the framework of the Working Party
on Social Questions. The Council says “there is still a need for
further work on the proposal”,4 although work done under
the Irish Presidency clarified the scope of the proposal in
the fields of education and social protection, and elaborated
some of its provisions.5
The European Commission is also continuing to work on
the European Accessibility Act. The initiative was originally
intended for adoption in September 2012.6 Preparatory work
continued in 2013 for the act, which aims at improving access
for persons with disabilities and elderly persons to the market
Key developments in the area of
equality and non‑discrimination
• The legislative package for the EU Structural Funds is
adopted. It includes thematic ex ante conditionality on
Roma inclusion and general ex ante conditionality on
Member States’ administrative capacity for the
implementation and application of Union
anti‑discrimination law and policy.
• The new EU programme for Rights, Equality and
Citizenship was adopted in December 2013 for the
period 2014–2020. The programme will promote
fundamental rights, combating all forms of
discrimination and fighting racism. It will also continue
to provide funding for Roma inclusion.
• Discussions on the proposed Horizontal Directive
continue to stall.
• The European Accessibility Act, covering access to
goods and services for persons with disabilities and
elderly persons, is still under preparation.
• The European Parliament’s Committee on Civil Liberties,
Justice and Home Affairs (LIBE Committee) argues that
the EU lacks a comprehensive policy to protect fully the
fundamental rights of LGBT and intersex persons.
127
Fundamental rights: challenges and achievements in 2013
in goods and services. It intends to harmonise acces‑
sibility requirements across the EU Member States.
Civil society organisations continued to engage closely
in developing the Accessibility Act. In January, the
European Disability Forum published a position paper
calling for a wider legal basis for the act, which takes
into account the potential benefits for social inclusion
and equality of viewing persons with disabilities as con‑
sumers.7 There were several consultations with stake‑
holders, including users and industry. Contributions
were received from EU‑level non‑governmental organi‑
sations (NGOs) and industry organisations.
A coalition of organisations acting on behalf of the
railway sector and passengers also issued a joint
statement highlighting the relevance of EU funding
for projects enhancing transport accessibility 8 (for
more information on the role of EU funding in coun‑
tering discrimination, see Section 5.5) The Accessibility
Act is included in the European Commission’s
work programme for 2014, with March 2014 as
a target adoption date.9
The EU lacks a comprehensive policy to protect fully
the fundamental rights of lesbian, gay, bisexual,
transgender and intersex (LBGTI) persons, the European
Parliament’s Committee on Civil Liberties, Justice and
Home Affairs (LIBE) argues. The LIBE Committee called
on the European Commission, EU Member States and
relevant agencies to work jointly on a comprehensive
policy to protect fully the fundamental rights of LGBTI
persons, the so‑called EU Roadmap against homophobia
and discrimination on grounds of sexual orientation and
gender identity.10 Ministers of 11 EU Member States
also signed a joint statement on the occasion of the
2013 international day against homophobia, calling for
a comprehensive EU‑wide approach to LGBT issues.
According to the European Commission, adopting
a ­targeted approach would be more efficient than devel‑
oping a comprehensive approach in the fight against
homophobia. Fully implementing the Employment
Equality Directive and the Victims’ Directive, as well as
adopting the Horizontal Directive, would offer legal pro‑
tection against homophobic and transphobic discrimi‑
nation, the Commission argues. In terms of concrete
action, following the publication of the FRA survey on
LGBT discrimination, the European Commission brought
together 14 interested Member States to discuss and
exchange existing best practices in those areas the
survey identified as displaying the greatest problems.
A significant step in strengthening protection against
discrimination on the grounds of disability was taken
in jurisprudence relating to the Employment Equality
Directive. In HK Danmark, acting on behalf of Jette
Ring v. Dansk Almennyttigt Boligselskab DAB and
HK Danmark acting on behalf of di Lone Skouboe
128
Werge v. Pro Display A/S, the Court of Justice of the
European Union (CJEU) updated its interpretation of
the concept of disability as a limitation, which results
in particular from physical, mental or psychological
impairments that, in interaction with various barriers,
may hinder the full and effective participation of the
person concerned in professional life on an equal basis
with other workers.11
FRA ACTIVITY
Assessing equality and
non‑discrimination in the European
Union: a patchwork of standards
The European Commission requested that FRA
provide an opinion on the situation of equality in
the EU 10 years on from initial implementation of
the equality directives. The Commission, under
Article 17 of the Racial Equality Directive, is re‑
quired to report to the European Parliament and
the Council on the implementation of both the Ra‑
cial Equality Directive and the Employment Equal‑
ity Directive, taking into account FRA’s views.
Published in October, the FRA opinion argues that
people continue to face discrimination in their
daily lives, despite considerable progress nation‑
ally and EU‑wide in policies and laws beyond the
area of employment.
The opinion also shows that, although the
EU made no discernible progress on adopting the
Horizontal Directive on non‑discrimination, this
did not, however, prevent national systems from
broadening the scope of their protection. A num‑
ber of Member States adopted legal measures to
extend protection across a range of grounds,
leading to a patchwork of standards across the EU.
Another important aspect of equality and nondiscrimination is the awareness people have of
their rights. A large body of FRA evidence shows
that people lack rights awareness. The opinion
therefore emphasises the need for national and
local authorities to intensify rights awareness ac‑
tivities. These should bring EU antidiscrimination
legislation to the public’s attention and focus on
targeting persons most at risk of discrimination.
The opinion also argues that Member States
should ease access to justice to ensure equality in
practice, by broadening the mandate of equality
bodies to deal with complaints where this is not
already the case. In addition, the rules should be
relaxed to enable civil society organisations to
take cases forward on behalf of those who have
been discriminated against.
For more information, see FRA (2013), Opinion of the European
Union Agency for Fundamental Rights on the situation of equality
in the European Union 10 years on from initial implementation of
the equality directives, available at: http://fra.europa.eu/sites/
default/files/fra-2013-opinion-eu-equality-directives_en.pdf
Equality and non‑discrimination
By aligning the Employment Equality Directive with
Article 1 of the United Nations Convention on the Rights
of Persons with Disabilities (CRPD), the CJEU distanced
itself from its previous jurisprudence, which relied on
a medical approach to disability.12 It adopted instead
a social model approach that more closely mirrors that
of the CRPD. Moreover, the decision exemplifies the
move within the CJEU to interpret existing EU law in line
with the Union’s international legal obligations.
5.2Discrimination
on all grounds persists
in the EU
The Horizontal Directive’s lack of progress makes it clear
that policy makers are failing to acknowledge fully the
extent and gravity of discrimination in the EU. FRA
evidence and national human rights bodies’ data tes‑
tify to persistent and widespread discrimination. (See
Chapter 6 on racism, xenophobia and related intolerance
and Chapter 7 on discrimination against Roma.)
The FRA survey on minorities and ­d iscrimination 13
­confirms that migrants and members of minority groups
regularly face discrimination. The findings show that
in the 12 months preceding the survey half the Roma
respondents suffered discrimination because they are
Roma. Sub‑Saharan Africans (41 %) experienced the
second‑highest rate of overall discrimination, and a third
of North Africans report being discriminated against.
Eight in 10 of those who experienced discrimination did
not report their most recent experience to any organisa‑
tion, mainly because they believed that nothing would
happen even if they were to report the incident.
“The EU was founded after Europe […] lived through the
atrocities during World War II. All of us have a duty in
ensuring that no one is discriminated against, or being
subject to violence because of their ethnicity, religious
beliefs, gender or sexual orientation. Too few are standing
up against intolerance today. We need political leaders who
do not flirt with populism and xenophobia.”
Cecilia Malmström, ‘Crimes against the foundation of society’, 12 Novem‑
ber 2013, available at: http://blogs.ec.europa.eu/malmstrom/
Jewish persons in the EU still experience ­discrimination
on various grounds, as FRA’s survey on antisemitism
shows (see Chapter 6 on racism, xenophobia and related
intolerance).14 Over one third of Jewish persons expe‑
rienced discrimination in the 12 months preceding the
survey, whether on the grounds of their ethnic back‑
ground, gender, sexual orientation, age, religion or
belief, disability or any other reason. About one in five
respondents felt they were discriminated against or
harassed on the grounds of their religion or beliefs.
In addition, about one in 10 respondents indicated
that they felt discriminated against or harassed on
the grounds of both ethnicity and religion, which is
the most common combination of grounds. The most
common settings where discrimination was felt were
the workplace and when looking for work.
About two thirds of those who experienced physical
violence or threats of violence did not report the most
serious incident to the police or to any other organi‑
sation. Of those who said that they felt discriminated
against in the 12 months before the survey because
they were Jewish, more than eight in 10 did not report
the most serious incident to any organisation. The main
reason for not reporting was a lack of confidence that
reporting the incident would improve the situation.
Women in the EU also regularly face sexual harassment
at work, as the findings of FRA’s survey on violence
against women show (for more information on this
survey, see Chapter 9 on rights of crime victims). Of
those women who have experienced sexual harass‑
ment at least once since the age of 15, 32 % indicated
a colleague, a boss or a customer as the perpetrator(s).
This shows the need for employers’ organisations and
trade unions to promote awareness of sexual harass‑
ment at work. Under‑reporting is again a characteristic
of the experience of discrimination, with only 13 % of
women reporting to police the most serious incident
of non‑partner violence.
Despite low reporting levels, evidence from equality
bodies and research institutes can give an idea of
the prevalence of given types of discrimination.
Evidence from Belgium,15 Bulgaria,16 Croatia,17 France,18
Germany,19 Greece,20 Italy,21 Ireland22 and Sweden 23
shows that ethnic and/or racial discrimination was
the most frequently reported type in 2012, particu‑
larly in the area of employment. In Germany, research
conducted by experts on migration and integration24
shows that visible minorities such as persons with
a Turkish migrant background and persons of African,
Asian or Latin American origin, as well as Muslims,
are especially vulnerable to discrimination on the
labour market, at public offices and authorities or
while seeking accommodation.
Relatively high levels of discrimination on the ground
of age were identified in Belgium,25 Denmark 26 and
France. 27 Age and disability were the most com‑
monly reported grounds of discrimination in the Czech
Republic. 28 Equality bodies in Poland 29 ranked dis‑
ability and gender discrimination as the most frequent
grounds of discrimination.
Most complaints reported to the equality body in
Estonia related to discrimination on the ground of sex.30
In addition, discrimination against pregnant women
and parents is considered direct discrimination on the
grounds of sex in Estonia.31 Evidence of discrimination
against pregnant women on the labour market was
129
Fundamental rights: challenges and achievements in 2013
FRA ACTIVITY
Highlighting discrimination and hate crime against lesbian, gay, bisexual and
transgender (LGBT) persons
Recognising the lack of robust and comparable data on respect for, protection of and fulfilment of the fundamental
rights of LGBT persons, in 2010 the European Commission, following calls from the European Parliament, asked FRA
to collect comparable survey data on hate crime and discrimination against LGBT persons in all EU Member States.
In response, FRA developed the EU survey of discrimination against and victimisation of lesbian, gay, bisexual and
transgender persons (EU LGBT survey).
The online survey of over 93,000 LGBT people across the EU reveals widespread bullying and harassment that start
early on in school and carry over into work, housing, social services and access to other goods and services. Without
proper intervention, such behaviour may turn into hate crime. About 80 % of the respondents recalled negative
comments or bullying at school and close to 50 % said they had felt personally discriminated against or harassed
because of being LGBT.
The results show that LGBT persons in the EU suffer from not being able to be themselves at school, at work or in
public. Many, therefore, cover up their identity, guarding their actions and living in isolation and even fear. Others,
choosing to act as themselves, may experience discrimination and even violence. Member States differ in how LGBT
persons perceive and experience violence, harassment and discrimination. This also holds for the perception of wide‑
spread negative attitudes towards LGBT persons, and whether LGBT persons avoid certain locations or behaviours for
fear of being assaulted, threatened or harassed because of being LGBT. The survey’s headline findings are:
• Almost half (47 %) of the respondents said that they felt personally discriminated against or harassed on the
grounds of sexual orientation in the year preceding the survey.
• Over 80 % of respondents in every Member State recall negative comments or bullying of LGBT youth at school.
• Two thirds (67 %) of all respondents said they often or always hid or disguised that they were LGBT during their
schooling before the age of 18.
• Two thirds of respondents across all Member States are scared of holding hands in public with a same‑sex partner.
For gay and bisexual male respondents, this figure reached 74 % and 78 %, respectively.
• One in five of those respondents who were employed and/or looking for a job in the 12 months preceding the
survey felt discriminated against in these situations in the past year. This figure rises to one in three for transgen‑
der respondents.
• Of those respondents who had a paid job during the past five years, nearly half (43 %) experienced negative com‑
ments or conduct at work because of being LGBT. More than half (55 %) of transgender respondents had experi‑
enced such hostility and one in five (18 %) said this behaviour happened often or always.
• Of the respondents who had visited a café, restaurant, bar or nightclub in the year preceding the survey, one in
five (18 %) felt personally discriminated against at that location because of being LGBT.
• A quarter (26 %) of all EU LGBT survey respondents had been attacked or threatened with violence in the previous
five years.
• About three in 10 of all transgender respondents said they were victims of violence or threats of violence more
than three times in the past year.
• A majority of respondents who had experienced violence (59 %) in the past year said that the last attack or threat
of violence happened partly or entirely because they were perceived to be LGBT.
• Fewer than one in five (17 %) reported the most recent incident of hate‑motivated violence to the police.
• More than four in five respondents said that casual jokes about LGBT persons in everyday life were widespread.
• Almost half of the respondents believe that offensive language about LGBT persons by politicians was widespread
in the Member State where they live.
For more information, see FRA (2013), EU LGBT survey – European Union lesbian, gay, bisexual and transgender survey: Results at a glance, available at:
http://fra.europa.eu/sites/default/files/eu-lgbt-survey-results-at-a-glance_en.pdf; data available through data explorer tool at: http://fra.europa.eu/DVS/
DVT/lgbt.php
identified in research conducted by the Equal Treatment
Commission in the Netherlands32 and the Equality
Ombudsman in Sweden.33
Rulings by the European Court of Human Rights (ECtHR)
in 2013 also emphasise the reality of discrimination in
130
the EU. In January, the ECtHR handed down judgments
relating to the expression of religious belief in the work‑
place and discrimination. In Eweida and Others v. the
United Kingdom,34 the issue related to wearing visible
symbols of religion at the workplace. The case related
to four applicants.
Equality and non‑discrimination
Concerning the first applicant, the court held that the
plaintiff’s right to manifest her religious beliefs by vis‑
ibly wearing a cross at work had been infringed by her
employer, as there was no evidence that the wearing
of the small cross would encroach on the interests of
others. Concerning the second applicant, the court ruled
that there had been no violation of the right to freedom
of religion, as forbidding the visible wearing of a cross
was justified for health and safety reasons for those
working on hospital wards.
out. As in the case of other such specific measures,
genuine and determining occupational requirements
are subject to the requirements of objectivity, legiti‑
macy and proportionality.
With respect to the third and fourth applicants, the
issue related to the conflict between a person’s reli‑
gious beliefs and their refusal to provide a service to
someone because of their sexual orientation. Here, the
ECtHR ruled that the right to manifest religious beliefs
cannot be to the detriment of other groups, particularly
if it results in discrimination. The plaintiffs’ employers
had equal opportunity policies in place that required
employees to act in a way that did not discriminate
against others. The court ruled that, even though the
right to manifest religious belief at work is protected,
that right must be balanced against the rights of others.
In Germany, the Federal Labour Court decided in a case
where the complainant challenged his dismissal after
his employer had learned that he was infected with HIV.
The court ruled that dismissal solely on the grounds
of HIV infection violates the General Equal Treatment
Act. The court reasoned that HIV must be considered
a disability in the sense of the act and of the CRPD.
In November, the ECtHR ruled in Vallianatos and Others
v. Greece35 that by excluding same‑sex couples living
in Greece from registering a civil union – a legal form
of partnership available to opposite‑sex couples – the
Greek State violated rights protected by the prohibition
of discrimination (Article 14) in conjunction with the
right to respect for private and family life (Article 8)
of the European Convention on Human Rights (ECHR).
At the end of 2013, the court had pending six conjoined
cases regarding the refusal of the Italian authorities to
register homosexual marriages contracted abroad and
the inability of same‑sex couples to contract marriage
or any other type of civil union in Italy.36
S. A. S. v. France,37 another pending case, relates to
a complaint made by a practising Muslim woman who
argued that, by forbidding her to wear a full‑face veil
in public, her employers had breached ECHR articles on
the prohibition of torture and inhuman and degrading
treatment (Article 3); the right to respect for private and
family life (Article 8); freedom of thought, conscience and
religion (Article 9); freedom of expression (Article 10);
freedom of assembly and association (Article 11); and
the prohibition of discrimination (Article 14).
Case law at the national level also dealt with the issue
of discrimination; a number of rulings clarified an
important Racial Equality Directive concept on genuine
and determining occupational requirements.38 These
requirements allow for differences in treatment based
on a characteristic related to racial or ethnic origin,
which do not constitute discrimination by reason of
the nature of the particular occupational activities
concerned or of the context in which they are carried
The Labour Court in Belgium, for example, ruled
in January that a general requirement made by an
employer for employees not to wear religious symbols
does not constitute a genuine occupational requirement
as defined by the Anti‑Discrimination Act.39
In Romania, the national equality body published
a decision in the case of R. S. I. v. S. C. CDI Oilfield
Service SRL and S. C. Adecco Resurse Umane SRL. 40
The claimant was a mechanic with a hearing disability
dismissed for failing an evaluation test carried out by
a human resources company hired by his employer.
The claimant complained that his employer did not
inform the human resources company about his hearing
impairment and that, since he was not informed about
the test, he did not ask for an interpreter. The equality
body established direct discrimination on the grounds
of disability with regards to dismissal, as the employer
did not accommodate the first evaluation test to the
disability of the complainant.
5.3
Discrimination hinders
full participation in
society
Discrimination often results in exclusion from active
participation in many areas of life, erecting barriers that
prevent many people from participating in society on
an equal and non‑discriminatory footing. This hap‑
pens to ethnic, religious, national or sexual minorities
or migrants, for instance, in the areas of healthcare,
education, employment and housing, as FRA evi‑
dence consistently shows.41
Examples include transgender persons in some
EU Member States, who often have to meet a complex
and lengthy set of legally prescribed criteria before
gender markers in official documents can be changed,
as FRA has documented.42 Such criteria include proof of
a medical or psychological diagnosis of transsexuality or
gender dysphoria/transgenderism. Without such docu‑
mentation, transgender persons may face difficulties
when they want to participate in simple daily activities
that require identity documents.
131
Fundamental rights: challenges and achievements in 2013
Other barriers to participation stem from stigmati‑
sation and negative stereotyping, leading to fear of
verbal or physical attack. Nearly half of all respond‑
ents in the EU LGBT survey considered offensive
language about LGBT people by politicians to be
fairly or very widespread in the country where they
live. 43 Similarly, FRA’s survey of Jewish persons in
the EU shows that, on average, more than half the
respondents consider antisemitic comments made in
the media and by politicians to be a problem in the
country where they live.44
The survey data also show that many people avoid
certain events, places or locations in their local area
or neighbourhood because they fear being harassed
or attacked. Nearly half of Jewish respondents who
have been a victim of an antisemitic incident in the
past 12 months say they avoid certain places because
they do not feel safe there as a Jew. Similarly, half the
LGBT survey respondents said they avoid certain places
or locations for fear of assault, threat or harassment
because they are LGBT.
“Systematic barriers such as negative cultural attitudes,
insufficient capacity‑building for potential candidates and
limited financial resources impede women’s equal
participation in public life.”
United Nations, Committee on the Elimination of Discrimination Against
Women (2013), Concluding observations on the seventh periodic report of
Greece adopted by the Committee at its fifty fourth session, 11 February–
1 March 2013, paragraph 24, available at: www2.ohchr.org/english/bodies/
cedaw/docs/co/CEDAW.C.GRC.CO.7.doc
The European Institute for Gender Equality launched
its report on the state of gender equality in the
EU (excluding Croatia) in June. 45 Using the Gender
Equality Index, a statistical tool to measure achieve‑
ments in the area of gender equality over time, the key
finding shows that Member States have not managed to
overcome gender gaps. On a scale where 1 stands for
no gender equality and 100 for full equality, EU Member
States scored 54 on average. The EU is still far from
being a gender‑equal society.
The biggest gender gap is within the area of power,
where the EU scores a mere 38, the results show. This
means that women are greatly under‑represented in
decision‑making positions, despite the fact that they
make up nearly half the workforce and account for more
than half of tertiary‑level graduates. The second‑largest
gap identified is in time spent on unpaid caring and
domestic activities, where the average score is 38.8,
meaning that women spend considerably more time
on such activities than men.46
For persons with disabilities, evidence collected by FRA
in 2013 highlights that the lack of accessible information,
the absence of training for public authorities, physical
barriers preventing access to and effective use of build‑
ings and services, and the absence of mechanisms
132
through which the voices of persons with disabilities
can reach decision makers all serve to create obsta‑
cles to participation.47
Promising practices
Addressing the under‑representation
of women in decision‑making posts
Acknowledging the under‑representation of
women in decision‑making posts, an Italian pro‑
ject aims to increase knowledge and understand‑
ing of the gender dimension in business leader‑
ship and economic growth. The two‑year project,
run by the Department for Equal Opportunities at
the Italian Ministry of Labour and Social Affairs
(Ministero del Lavoro e delle Politiche Sociali) and
Bocconi University, will examine the gender bal‑
ance on the boards of directors and audit commit‑
tees of publicly owned Italian companies.
The project, which is supported by the European
Commission, will further analyse the consequenc‑
es of the presence of women on the board of di‑
rectors of public and private companies. Entitled
Women Mean Business and Economic Growth –
Promoting Gender Balance on Company Boards,
the project will suggest ways to increase the
number of women employed in high‑level
positions.
The project will also promote the exchange of
good practices and the beneficial effects of fe‑
male leadership on economic growth and
business.
For more information, see: www.pariopportunita.gov.it/
index.php/primo-piano/2396-qwomen-mean-businessand-economic-growthq
The Promociona project aims to increase the
number of women executives in steering com‑
mittees and management boards of businesses in
Spain, helping them break through the glass ceil‑
ing that women often face at work. To do so,
training and development programmes will focus
on nurturing and retaining female talent within
companies, thereby enabling businesses to re‑
cruit and groom women to occupy senior man‑
agement jobs. Starting in 2013, the project will run
until the end of 2015, with funding from the Euro‑
pean Economic Area Financial Mechanism.
For more information, see: www.eeagrants.spain.msssi.gob.
es/docsRelevantes/pdf/folleto_programa_igualdad.pdf
Persons with disabilities also face legal hurdles that
­prevent them from participating in political and social
life. This is particularly the case for those with psycho­
social or intellectual disabilities who have been deprived
of legal capacity, that is the law’s recognition of a per‑
son’s right to make decisions for him- or herself. This
happens despite the CRPD Committee’s insistence that
State Parties to the Convention “ensure that persons
Equality and non‑discrimination
Table 5.1: Right to political participation of persons with psychosocial disabilities and persons with intellectual
disabilities, by EU Member State
EU
­Member
State
Exclusion
Limited participation
AT
Full participation
X
BE
X
BG
X
CY
X
CZ
X
DE
X
DK
X
X
EE
X
X
EL
X
ES
X
X
FI
X
X
FR
X
X
HR
X
HU
IE
X
X
X
IT
X
LT
X
LU
X
LV
X
MT
X
X
NL
X
PL
X
PT
X
RO
X
SE
X
SI
X
SK
X
UK
X
Notes: Data as of December, 2013.
An EU Member State can be represented in more than one column, as persons with psychosocial disabilities and persons
with intellectual disabilities may be treated differently according to the national law of the respective Member State, or
because different laws specify different restrictions on the right to political participation.
Source: FRA, 2013
133
Fundamental rights: challenges and achievements in 2013
with disabilities, including persons who are currently
under guardianship or trusteeship, can exercise their
right to vote and participate in public life.”48
FRA ACTIVITY
Increasing the participation of persons
with disabilities in political and social
life – legal capacity and participation
in elections
In July 2013, FRA published a report that underlines
the gap between the promise of Article 12 of the
CRPD, on equal recognition of persons with disabil‑
ities before the law, and the reality that persons
with disabilities currently face in the EU. The re‑
port, Legal capacity of persons with mental health
problems and persons with intellectual disabilities,
shows that, in a majority of EU Member States, le‑
gal frameworks allow some persons with disabili‑
ties to be deprived of their legal capacity in certain
circumstances, despite the shift outlined in the
CRPD from substituted to supported decision mak‑
ing. These national legal frameworks are, howev‑
er, undergoing a transformation, as legal capacity
is reframed in terms of the support that persons
with disabilities may need to make decisions.
To support reform processes at the national level,
FRA brought together legal experts from govern‑
ment ministries across the EU Member States
in October to discuss how to give supported deci‑
sion making a clear and effective legislative basis.
The seminar, organised by FRA in partnership with
the Irish Department of Justice and Equality, the
Irish Human Rights Commission and the Irish
Equality Authority, focused on the steps that must
be taken to build a coherent legislative agenda to
move successfully to supported decision making.
FRA’s preliminary findings on the political partici‑
pation of persons with disabilities indicate that
many of them confront legal and practical barriers
to exercising the right to vote. This can deprive
them of the opportunity to participate in an es‑
sential component of democratic societies. FRA’s
work in this area consists of developing indicators
on the political participation of people with disabil‑
ities to measure the extent to which they are ena‑
bled to participate in political life, particularly
through voting and standing for elections.
For more information, see: FRA (2013), Legal capacity of persons
with intellectual disabilities and persons with mental health
problems, available at: http://fra.europa.eu/en/publication/2013/
legal-capacity-persons-intellectual-disabilities-and-persons-men‑
tal-health-problems; and FRA (2013), Political participation of
persons with disabilities, available at: http://fra.europa.eu/en/
project/2013/political-participation-persons-disabilities
Only a minority of EU Member States have lifted all
restrictions on the right to vote of people deprived
of legal capacity. Table 5.1 indicates that laws in
134
the large majority of Member States continue to tie
the right to vote to legal capacity. Half of the EU-28
automatically exclude persons deprived of their
legal capacity from the right to vote (exclusion).
Legislation in several other Member States provides
for a case‑by‑case assessment of the ability of
a person to vote (limited participation).
“It is important to recognise the legal capacity of persons
with disabilities in public and political life. This means that
the person’s decision‑making ability cannot be used to
justify any exclusion of persons with disabilities from
exercising their political rights.”
CRPD Committee (2013), Draft General Comment on Article 12 of the
Convention: Equal recognition before the law, 25 November 2013,
paragraph 44, available at: www.ohchr.org/EN/HRBodies/CRPD/Pages/
DGCArticles12And9.aspx
5.4
Member States adopt
measures to counter
discrimination
EU Member States adopted measures in 2013 to enable
them to counter discrimination more effectively.
Poland, for example, adopted a national action plan
for equal treatment covering 2013–2016.49 In the United
Kingdom, the Department for Culture, Media and
Sport and the Government Equalities Office published
a policy on Creating a fairer and more equal society.50
The policy aims at preventing discrimination, including
discrimination based on age, disability, gender reas‑
signment, marriage and civil partnership, pregnancy
and maternity, race, religion or belief, sex and sexual
orientation. Croatia 51 and Greece 52 adopted similar
action plans, with that of Greece covering human
rights globally. Estonia 53 and Finland 54 organised
campaigns promoting diversity and equality. In Spain,55
the Ministry of Health, Social Services and Equality
(Ministerio de Sanidad, Servicios Sociales e Igualdad)
began mapping how discrimination is perceived and
enacted, with a view to enabling the authorities to draft
more effective antidiscrimination policies. In Spain as
well, legislation relating to improving the quality of
education irrespective of a person’s background came
into force in December.56
EU Member States also adopted measures targeting
specific grounds of discrimination in 2013, particu‑
larly regarding age, disability, sexual orientation
and gender identity.
5.4.1
Countering discrimination on
the ground of age
Recognising that all human rights and fundamental
freedoms apply to older persons, the draft recommen‑
dation by the Steering Committee for Human Rights of
the Council of Europe on the promotion of the human
Equality and non‑discrimination
rights of older persons calls for increasing respect for
older persons’ autonomy and legal capacity in daily
life. It also called for promoting the protection of older
persons in societies where ageism is rising or in situa‑
tions where they may be vulnerable.57
Member States adopted measures to encourage
employers to hire young or older people to counter
high youth unemployment rates and discrimination
on the ground of age. In the Czech Republic, the
national action plan supporting positive ageing for the
period 2013–2017,58 prepared by the Ministry of Labour
and Social Affairs, envisages the implementation of
tools to support older workers. It introduces concepts
of age management and increases the employment of
older workers by creating job‑share positions between
older and younger workers.
Promising practice
Providing the police with guidance on
antidiscrimination
The National Union of Local Police Chiefs (Unión
Nacional de Jefes y Directivos de Policía Local)
and several NGOs working with migrants, Roma,
LGBT people and those with intellectual disabili‑
ties in Spain published an antidiscrimination and
equality guide for the police. The guide addresses
discrimination on specific grounds, multiple dis‑
crimination and hate crime. It also explains where
discrimination usually takes place, while provid‑
ing statistical and sociological data on popula‑
tions vulnerable to discrimination. The guide fur‑
ther describes specific cases of discrimination
involving the police in Spain and provides infor‑
mation on the legal framework on non‑discrimi‑
nation at the international, European and
national levels.
The aim of the guide is to raise awareness among
the police by providing examples of good practic‑
es in the areas of police adjustment to diversity;
countering hate crimes; participation of a diverse
society in public security policies; and avoidance
of ethnic profiling.
For more information, see: Spain, Programa de colaboración de
la Open Society Foundations con la Plataforma por la Gestión
policial de la Diversidad (2013), Guía para la Gestión Policial de
la Diversidad, available at: http://­gestionpolicialdiversidad.org/
PDFactividades/guia_gestion_policial_diversidad.pdf
Bulgaria introduced subsidies for hiring those under
29 years of age.59 In Denmark, the government adopted
similar measures, setting up programmes aimed
at integrating young people into the job market.60
Finland launched the Youth Guarantee programme to
ensure young people’s access to education, training
and employment and to prevent them from being
excluded from society.61
The ‘generation contract’ in France guarantees that
companies with fewer than 300 employees receive
financial support when they recruit persons under 26
or workers with disabilities under 30 or keep in a post
employees over 57 years of age.62 In Spain, the gov‑
ernment introduced a requirement for profit‑making
enterprises with more than 100 staff members to pay
compensation to the state’s social benefits scheme if
they collectively dismiss workers over 50 years of age.63
Belgium and Germany built upon 2012 campaigns as part
of the European Year for Active Ageing and Solidarity
between Generations, adopting measures to ensure the
non‑discriminatory treatment of young and older people
in employment. Measures included awareness‑raising
campaigns, such as the Belgian Fifty‑plus employees
are a plus for every company.64 The German Perspektive
50plus65 campaign aimed at raising awareness of demo‑
graphic issues, activating older long‑term unemployed
people and integrating them into the job market.
Finally, the European Commission closed the
­infringement procedure on the forced retirement of
judges in Hungary, which had lowered their mandatory
retirement age from 70 to 62.66 Hungary amended the
relevant legal act.
5.4.2
Countering discrimination on
the ground of disability
EU Member States continued to bring their legislation
and policy frameworks in line with their legal obli‑
gations under the CRPD. New legislation was either
adopted or presented in draft in Austria,67 Belgium,68
Estonia,69 Hungary,70 Italy,71 Latvia,72 the Netherlands,73
Portugal74 and the United Kingdom.75
Croatia,76 the Czech Republic,77 Hungary78 and Latvia79
adopted reforms to remove or reduce restrictions for
persons with psychosocial or intellectual disabilities
who have been deprived of legal capacity. In the
Czech Republic, the Civil Code that came into force on
1 January 2014 stipulates that a person’s legal capacity
may be partially limited, with courts deciding the scope
of the legal capacity limitation, including whether or not
the individual retains the right to vote.80
Amendments to the Latvian Civil Law in force since
1 January 2013 envisage that “the person shall not be
deprived of personal non‑material rights”, including
the right to vote. 81 Moreover, a draft Assisted
Decision‑Making Bill setting out a legal framework
for supported decision‑making was presented
in Ireland (see Chapter 10 on EU Member States
and international obligations).82
Hungary initiated reforms linked to the Concluding
observations of the CRPD Committee.83 The committee
expressed concern that the definition of disability in the
135
Fundamental rights: challenges and achievements in 2013
Disability Act84 excludes persons with psychosocial dis‑
abilities. Hungary subsequently amended the Disability
Act, which as of 1 January 2014 covers persons with
psychosocial disabilities.85 In addition, the committee
specifically called upon Hungary to “re‑examine the
allocation of funds, including regional funds obtained
from the European Union”, to ensure that they are in
full compliance with Article 19 of the CRPD.86 This has
ramifications for the use of the new Structural Funds
to support the transition from institutional to commu‑
nity‑based care, particularly in the light of the newly
adopted ex ante conditionalities (for more on ex ante
conditionalities, see Section 5.5).
Promising practice
Involving NGOs in improving
accessibility of buildings for persons
with disabilities
In the Croatian city of Vinkovci, the Committee for
the Technical Examination of Buildings includes
a member representing Bubamara, an NGO that
works to protect persons with disabilities. The
committee runs fieldwork tests of the accessibil‑
ity of new buildings, a prerequisite for these to
gain use permits. The test results feed back into
the engineering works, allowing the removal of
any obstacles encountered and preventing these
in future construction projects. The committee
also raises awareness within the construction in‑
dustry of how to ensure that buildings are acces‑
sible for all. Several Croatian cities have now in‑
cluded NGO representatives on their technical
building committees, a practice recommended by
the Persons with Disabilities Ombudsman.
For more information, see: www.bubamara.hr/ and www.
bd.undp.org/content/croatia/hr/home/presscenter/articles/
2013/10/15/osobe-s-invaliditetom-i-lokalna-uprava-o-nepristupa-nosti-objekata/
Cyprus, 87 Denmark, 88 Italy, 89 Latvia,90 ­L ithuania,91
Slovakia92 and the United Kingdom93 introduced action
plans in the area of disability. The Italian Ministry of
Labour and Social Policy, for example, approved in
February the country’s first National Action Programme
for the promotion of the rights and integration of people
with disabilities.94 The plan identifies seven priority
areas for the implementation of the CRPD and defines
concrete measures to be implemented by national,
regional and local authorities.
Other initiatives to enhance the participation of persons
with disabilities focused on the accessibility of public
buildings and information, as well as on assistance
during the voting process. France, for example, requires
an assessment of the accessibility of state and munic‑
ipal buildings for persons with disabilities, following an
interdepartmental circular sent out in January.95 As of
136
2013, the Austrian Federal Parliament has a tool that
reads its website’s contents aloud.96
To help guarantee the secrecy of the ballot for persons
with disabilities who require assistance to vote, the
Swedish Parliamentary Electoral Committee proposed
introducing a new provision to the Election Act that
would include an explicit duty of confidentiality for
individuals who assist voters.97 In the United Kingdom,
the parliamentary outreach service in conjunction with
a not‑for‑profit organisation launched a campaign, Love
Your Vote, to explain to persons with intellectual disabili‑
ties the parliamentary process, the electoral system, the
voting process and how to lobby local representatives.
The Employment Equality Directive incorporates the
duty of ‘reasonable accommodation’ for persons with
disabilities. This is the employer’s duty to take appro‑
priate measures, where needed, to enable a person
with a disability to have access to, participate in, or
advance in employment, or to undergo training, unless
such measures would impose a disproportionate burden
on the employer.98
Croatian lawmakers amended the new Act on
Professional Rehabilitation and Employment of
Persons with Disabilities. Reasonable accommoda‑
tion at the workplace is newly defined as “neces‑
sary and adequate accommodation and adjustments,
which are not disproportionate or inadequate, so as
to ensure the employment and work of persons with
disabilities on an equal basis to others in each individual
case, where necessary”.99
In some countries, measures of reasonable
­a ccommodation have been applied to fields other
than employment, such as education. In Bulgaria,
for instance, the national programme for accessible
schooling Creating an accessible architectural environ‑
ment 2013 aims to create a supportive environment for
400 children with intellectual disabilities who have been
living in institutions that are now scheduled for closure.
It also aims to give them easier access to 64 pilot kinder‑
gartens and elementary schools near their new accom‑
modation, which consists of small, family‑type centres
and sheltered housing. This also relates to the inclusive
education programme, under which 1,331 pupils with
special educational needs received support to study in
84 pilot secondary schools.100
The Flemish Government in Belgium approved
a ­proposal for a decree on measures for students with
specific education needs, which it submitted to the
Flemish Parliament in November 2013.101 The proposal
provides that children who are able to continue in regular
education with the help of reasonable adjustments have
the right to enrol or remain enrolled in regular schools.
Those who are not able to follow regular education,
because of what is required to obtain a degree, or for
Equality and non‑discrimination
whom the adjustments to attend regular school would
be unreasonable, have access to special education.102
5.4.3
Countering discrimination
on the grounds of sexual
orientation and gender identity
Several EU Member States addressed the legal situation
of LBGT persons in 2013. Malta, for example, removed
from its Civil Code obstacles relating to the civil status of
persons who change their assigned sex.103 Poland began
parliamentary discussions on adopting a formal proce‑
dure of gender recognition.104 In Ireland, the Department
of Social Protection proposed a Gender Recognition Bill
to recognise legally the acquired gender of transgender
persons for all purposes, including dealings with the
state, public bodies and civil and commercial entities.105
Latvia adopted new Regulations on Civil Status,
allowing, among other amendments, for legal change
of gender.106 According to the new law, the registry
record shall be supplemented if the person has under‑
gone partial or complete gender reassignment and the
persons’ gender record shall be changed according to
the certificate issued by the healthcare institution or
healthcare practitioner, which confirms the change
of the gender.
Similarly, Lithuania simplified the procedure of legal
gender recognition by obliging registry offices to
change identity documents upon the submission of
medical proof of gender‑reassignment surgery.107 The
Lithuanian Gay League points out, however, that in 2013
a proposal was put forward envisaging fines for those
organising protests that would seemingly contradict
“constitutional moral values and Constitution estab‑
lished principles of family”. If adopted, the proposal
would apply to situations where LGBT persons would
be seen to contradict the “morality of society.”108
The Senate in the Netherlands voted in favour of
a law enabling transgender persons to change their
legal sex without requirements such as sterilisation
or genital surgery.109
Civil society organisations acknowledged the limited
progress made with regard to the legal recognition of
a trans person’s gender in some EU Member States.
Still, they remained critical of legislative proposals that
would necessitate sterilisation, divorcing or compul‑
sory medical treatment.110
In Belgium,111 Denmark,112 Finland113 and ­France,114 national
equality bodies and expert working groups focused on
legislation concerning LBGT persons. The attention here
is on gender recognition in civil matters, conditions
for gender reassignment and developing proposals
for legal reforms to better accommodate the needs of
LBGT persons. In Cyprus, the Ministry of Justice and Public
Order not only submitted legislation penalising discrimi‑
nation on the grounds of race, colour, religion, national
or ethnic origin; it also submitted a bill amending the
Criminal Code to the Parliament. The bill would penalise
the public incitement of discriminatory acts or acts of
hatred or violence against persons because of their
sexual orientation or gender identity.115
Action plans and policy measures on countering dis‑
crimination grounded on sexual orientation and gender
identity were also introduced or updated in Belgium,
the Netherlands116 and Portugal.117
5.5
EU deploys EU structural
funds in countering
discrimination
The legislative package for the European Union
Structural Funds for the period 2014–2020 was adopted
in December 2013.118 These funds, totalling €325 billion,
are the EU’s principal investment tool for delivering
Europe 2020 goals, including the reduction of social
exclusion and creating economic growth and jobs.119
The regulations governing several specific funds
make specific reference to furthering equality and
non‑discrimination. For the first time, the European
Social Fund (ESF), which accounts for 23 % of the total
Structural Funds budget, will include a specific focus on
fighting discrimination on the grounds of sex, racial or
ethnic origin, religion or belief, disability, age or sexual
orientation, or those covered by Article 10 of the Treaty
on the Functioning of the European Union, in addition
to promoting employment and inclusion.120
Of the more than €74 billion of ESF funds to be
­distributed over the seven‑year financing period, at
least 20 % will be allocated to social inclusion and
€3 billion to the Youth Employment Initiative in regions
with youth unemployment rates exceeding 25 %.121
Particularly important to the area of equality and
non‑discrimination is the inclusion of the requirement
for EU Member States to show that they have the rel‑
evant legal and policy instruments and measures in
place before they can apply for funding, including on
antidiscrimination, gender and disability. The move
to require such ‘ex ante conditionalities’ in these
three areas reverses a previous Council of the European
Union decision removing them.122
Before funds can be allocated, the European Commission
must assess that a number of criteria attached to each
conditionality have been fulfilled. Regarding antidis‑
crimination, for example, EU Member States must meet
certain criteria, including arranging that the bodies
137
Fundamental rights: challenges and achievements in 2013
that promote equal treatment shall be involved in pro‑
gramme preparation and implementation.123 Particularly
important in the context of disability, children and
older people are the criteria for fulfilment attached to
the objective of promoting social inclusion, combating
poverty and any discrimination, which include “meas‑
ures for the shift from institutional to community based
care”. Table 5.2 presents a summary of the relevant
ex ante conditionalities.
“The implementation of the priorities financed by the ESF
should contribute to countering discrimination based on
sex, racial or ethnic origin, religion or belief, disability, age
or sexual orientation by paying particular attention to those
facing multiple discriminations; discrimination on the
grounds of sex should be interpreted in a broad sense so as
to cover other gender‑related aspects in line with the
jurisprudence of the Court of Justice of the European Union.
The ESF should support the fulfilment of the obligation
under the UN [CRPD] with regard inter alia to education,
work and employment and accessibility. The ESF should
also promote the transition from institutional to
community‑based care. The ESF should not support any
action that contributes to segregation or to social
exclusion.”
In addition, the Rights, Equality and Citizenship
Programme was adopted in December for the
period 2014–2020.124 The programme will contribute
to fighting discrimination on all the grounds listed in
Article 21 of the Charter of Fundamental Rights, namely
sex, race, colour, ethnic or social origin, genetic features,
language, religion or belief, political or any other opinion,
membership of a national minority, property, birth, dis‑
ability, age or sexual orientation. The funds available
amount to €439,473,000, merging three programmes:
Fundamental Rights and EU Citizenship;125 Daphne III;126
and two chapters of the Progress programme.127
European Parliament (2013), Resolution of 20 November 2013 on the
proposal for a regulation of the European Parliament and of the Council on
the European Social Fund and repealing Regulation (EC) No 1081/2006,
P7_TA(2013)0483, Strasbourg, 20 November 2013.
Table 5.2: Common provisions on European funds: selected general and thematic ex ante conditionalities
Area
Ex ante conditionality
Antidiscrimination
Administrative capacity to implement and apply EU antidiscrimination law and
policy in the field of European Structural and Investment (ESI) funds
Gender
Administrative capacity to implement and apply EU gender equality law and
policy in the field of ESI funds
Disability
Administrative capacity to implement and apply the United Nations Convention
on the Rights of Persons with Disabilities in the field of ESI funds in accordance
with Council Decision 2010/48/EC
Thematic objective
Ex ante conditionality
Promoting social inclusion,
countering poverty and any
discrimination
The existence and implementation of a national strategic policy framework for
poverty reduction aiming at the active inclusion of persons excluded from the
labour market in the light of the employment guidelines
Promoting sustainable and
quality employment and
supporting labour mobility
ESF: Active and healthy ageing
Active ageing policies designed in the light of the employment guidelines
Source:Regulation (EU) No. 1303/2013 of the European Parliament and of the Council of 17 December 2013 laying down common
provisions on the European Regional Development Fund, the European Social Fund, the Cohesion Fund, the European
Agricultural Fund for Rural Development and the European Maritime and Fisheries Fund covered by the Common Strategic
Framework and laying down general provisions on the European Regional Development Fund, the European Social Fund
and the Cohesion Fund and repealing Council Regulation (EC) No. 1083/2006, OJ L 347, 20/12/2013, pp. 320–469, Article 19
and Annex XI
138
Equality and non‑discrimination
Outlook
The European Commission’s report on the i­ mplementation
of the Employment Equality Directive and the Racial
Equality Directive will give new impetus to EU Member
States to ensure that they offer adequate protection
against discrimination and unequal treatment. This
could lead to a revision of national policies and instru‑
ments pertaining to equality and non‑discrimination.
The impact of the economic crisis will continue to affect
the ability of persons in vulnerable situations to partici‑
pate fully in social life in a number of Member States.
The reformed cohesion policy will make available up
to €351.8 billion for delivering on Europe 2020 goals,
which include reducing poverty and social exclusion.
However, the ability of all those living in the EU to par‑
ticipate fully and equally is also likely to be affected
by the pace of progress on key legislative and policy
developments, such as the Horizontal Directive and
the Accessibility Act.
After meeting for the first time in 2013, the EU‑level CRPD
monitoring framework set up under the Convention’s
Article 33 (2) will build up its activities in 2014. In par‑
ticular, it will prepare a work programme and take
steps to ensure public access to key documents and
information about the work of the framework, which
is composed of the European Parliament, the European
Commission, the European Ombudsman, FRA and the
European Disability Forum representing civil society.
139
Fundamental rights: challenges and achievements in 2013
Index of Member State references
EU Member State
Page
AT��������������������������������������������������������������������������������� 124, 127, 136
BE�������������������������������������������������������������������������� 129, 131, 135, 136, 137
BG��������������������������������������������������������������������������������� 129, 135, 136
CY�������������������������������������������������������������������������������� 124, 136, 137
CZ������������������������������������������������������������������������������������� 129, 135
DE��������������������������������������������������������������������������������� 129, 131, 135
DK����������������������������������������������������������������������������� 129, 135, 136, 137
EE���������������������������������������������������������������������������������� 129, 134, 135
EL������������������������������������������������������������������������������ 124, 129, 131, 134
ES���������������������������������������������������������������������������������� 132, 134, 135
FI���������������������������������������������������������������������������������� 134, 135, 137
FR��������������������������������������������������������������������������� 129, 131, 135, 136, 137
HR������������������������������������������������������������������������� 129, 132, 134, 135, 136
HU�������������������������������������������������������������������������������� 124, 135, 136
IE���������������������������������������������������������������������������������� 129, 135, 137
IT����������������������������������������������������������������������� 124, 129, 131, 132, 135, 136
LT������������������������������������������������������������������������������������� 136, 137
LU����������������������������������������������������������������������������������������� n/a
LV���������������������������������������������������������������������������������� 135, 136, 137
MT���������������������������������������������������������������������������������������� 137
NL��������������������������������������������������������������������������������� 130, 135, 137
PL��������������������������������������������������������������������������������� 129, 134, 137
PT������������������������������������������������������������������������������������� 135, 137
RO������������������������������������������������������������������������������������ 124, 131
SE������������������������������������������������������������������������������������� 129, 130
SI����������������������������������������������������������������������������������������� n/a
SK������������������������������������������������������������������������������������� 124, 136
UK������������������������������������������������������������������������� 124, 130, 134, 135, 136
140
Equality and non‑discrimination
Endnotes
with mental health problems under non‑discrimination
law: Understanding disability as defined by law and the
duty to provide reasonable accommodation in EU Member
States, Luxembourg, Publications Office of the European
Union (Publications Office).
All hyperlinks accessed on 30 April 2014.
1
2
3
4
5
6
See: Council Directive 2000/43/EC of 29 June 2000
implementing the principle of equal treatment between
persons irrespective of racial or ethnic origin, OJ L 180,
19 July 2000, pp. 22–26; Council Directive 2000/78/EC of
27 November 2000 establishing a general framework for
equal treatment in employment and occupation, OJ L 303,
2 December 2000, pp. 16–22; Council Directive 2004/113/EC
of 13 December 2004 implementing the principle of equal
treatment between men and women in the access to and
supply of goods and services, OJ L 373, 21 December 2004,
pp. 37–43.
13FRA (2010), EU‑MIDIS: European Union Minorities and
Discrimination Survey 2009, Luxembourg, Publications
Office.
14FRA (2013), Discrimination and hate crime against Jews
in EU Member States: Experiences and perceptions of
antisemitism, Luxembourg, Publications Office.
15
European Commission (2011), The principle of equal
treatment between persons, http://europa.eu/
legislation_summaries/employment_and_social_policy/
equality_between_men_and_women/c10935_en.htm.
Belgium, Centre for Equal Opportunities and Opposition
to Racism (CEOOR) (2013), Jaarverslag Discriminatie/
Diversiteit 2012 / Rapport annuel Discrimination/
Diversité 2012, www.diversite.be/?action=publicatie_
detail&id=161&thema=2&select_page=216.
16
European Commission (2008), Proposal for a Council
Directive on implementing the principle of equal treatment
between persons irrespective of religion or belief, disability,
age or sexual orientation, COM(2008) 426 final, Brussels,
2 July 2008.
Daskalova, N., Zhelyazkova, A. and Angelova, V.,
International Centre for Minority Studies and Intercultural
Relations (2013), Challenging racism at work, www.imir-bg.
org/imir/reports/CHALLENGING%20RACISM%20AT%20
WORK.pdf.
17
Croatia, Office of the People’s Ombudsman (2013),
Report on the occurrences of discrimination for 2012,
Zagreb, June 2013, www.ombudsman.hr/dodaci/
Izvje%C5%A1%C4%87e%20o%20pojavama%20
diskriminacije.pdf.
18
France, Défenseur des droits (2013), Annual activity
report 2012, www.defenseurdesdroits.fr/sites/default/files/
upload/raa-Defender of Rights-2012_press02.pdf.
19
Germany, Antidiskriminierungsstelle des Bundes (2013),
Diskriminierung im Bildungsbereich und im
Arbeitsleben: Zweiter Gemeinsamer Bericht der
Antidiskriminierungsstelle des Bundes und der in ihrem
Zuständigkeitsbereich betroffenen Beauftragten der
Bundesregierung und des Deutschen Bundestages,
Berlin, www.antidiskriminierungsstelle.de/SharedDocs/
Downloads/DE/publikationen/Gemeinsamer_Bericht_2013.
pdf?__blob=publicationFile.
See: Council of the European Union (2013), Progress report
on the proposal for a Council Directive on implementing the
principle of equal treatment between persons irrespective
of religion or belief, disability, age or sexual orientation,
Irish Presidency of the Council of the EU, 7 June 2013, http://
register.consilium.europa.eu/doc/srv?l=EN&t=PDF&gc=tru
e&sc=false&f=ST %2010039 %202013 %20INIT; Council of
the European Union (2013), Progress report on the proposal
for a Council Directive on implementing the principle of
equal treatment between persons irrespective of religion
or belief, disability, age or sexual orientation, Lithuanian
Presidency of the Council of the EU, 22 November 2013,
http://register.consilium.europa.eu/doc/srv?l=EN&t=PDF&g
c=true&sc=false&f=ST %2016438 %202013 %20INIT.
See: Council of the European Union (2013), Progress report
on the proposal for a Council Directive on implementing the
principle of equal treatment between persons irrespective
of religion or belief, disability, age or sexual orientation,
Irish Presidency of the Council of the EU, 7 June 2013.
European Commission (2011), Roadmap,
European Accessibility Act: Legislative initiative
to improve accessibility of goods and services in
the Internal Market, Brussels, June 2011, http://
ec.europa.eu/governance/impact/planned_ia/
docs/2012_ just_025_european_accessibiliy_act_en.pdf.
7
European Disability Forum (EDF) (2013), EDF position
paper: Towards a European Accessibility Act, Brussels,
January 2013, p. 15, www.edf-feph.org/Page_Generale.
asp?DocID=13854&thebloc=31902.
8
Age Platform Europe, Community of European Railway
and Infrastructure Companies, European Disability Forum
and European Passengers’ Federation (2013), Towards
better accessibility of transport services, joint statement,
January 2013, www.age-platform.eu/images/stories/Joint_
statement_on_European_Accessibility_Act.pdf.
9
European Commission (2014), Commission actions expected
to be adopted in 2014, http://ec.europa.eu/atwork/pdf/
forward_programming_2014.pdf.
10
European Parliament (2013), Draft report on the EU
Roadmap against homophobia and discrimination
on grounds of sexual orientation and gender
identity, (2013/2183(INI)), 14 October 2013.
11
CJEU (2013), joined cases C-335/11 and C-337/11.
12CJEU (2006), Chacon Navas v. Eurest Colectividades SA,
11 July 2006. See also FRA (European Union Agency for
Fundamental Rights) (2011), The legal protection of persons
20Greece, Συνήγορος του Πολίτη, Annual report 2012,
­w ww.synigoros.gr/resources/docs/stp_ethsia_2012.pdf.
21
Italy, Ufficio Nazionale Antidiscriminazioni Razziali (2013),
www.unar.it.
22
Ireland, Equality Authority (2013), Equality Authority
annual report 2012, www.equality.ie/en/Publications/
Annual-Reports/Annual-Report-2012-Final-onlin
e-web-version-pdf.pdf.
23
Sweden, Diskrimineringsombudsmannen, Annual
report 2012, www.do.se/sv/Material/Arsredovisning-2012/.
24 Germany, Sachverständigenrat deutscher Stiftungen
für Integration und Migration (SVR) (2013), Migrants’
experiences of discrimination, Factsheet of the expert
opinion: Discrimination experiences of persons with
and without a migrant background including an East/
West comparison, www.antidiskriminierungsstelle.de/
SharedDocs/Downloads/DE/publikationen/factsheet_engl_
Diskriminierungserfahrungen_Migrant_innen_Ost_West_
Vergleich.pdf?__blob=publicationFile.
25
Belgium, (CEOOR) (2013), Jaarverslag ­Discriminatie/
Diversiteit 2012 / Rapport annuel Discrimination/
Diversité 2012, www.diversite.be/?action=publicatie_
detail&id=161&thema=2&select_page=216.
26Denmark, Ligebehandlingsnævnet (2013).
27
France, Défenseur des droits (2013), Survey on the
perception of discrimination by job seekers: Executive
summary, October 2013, www.defenseurdesdroits.fr/sites/
default/files/upload/oit-synthese.pdf.
141
Fundamental rights: challenges and achievements in 2013
28 Czech Republic, Veřejný ochránce práv (2013), Annual
report 2012, www.ochrance.cz/fileadmin/user_upload/
zpravy_pro_poslaneckou_snemovnu/Souhrnna_zprava_
VOP_2012-web.pdf.
29 Poland, Human Rights Defender (2013), Response to
the request upon access to public information from
28 October 2013; Poland, Pełnomocnik Rządu do spraw
Równego Traktowania, Response to the request upon
access to public information from 28 October 2013.
30 Estonia, Soolise võrdõiguslikkuse ja võrdse kohtlemise
volinik (2013), Soolise võrdõiguslikkuse ja võrdse kohtlemise
volinik: 2012. aasta tegevuse aruanne, www.svv.ee/
failid/Voliniku%202012.%20aasta%20tegevuse%20
%C3%BClevaade.%20Kokkuv%C3%B5te.pdf.
48 Committee on the Rights of Persons with Disabilities (2013),
Concluding observations on Tunisia, CRPD/C/TUN/CO/1,
13 May 2011, para. 35.
49 Poland, Pełnomocnik Rządu do spraw Równego
Traktowania (2013), Krajowy Program Działań na Rzecz
Równego Traktowania na lata 2013–2016, Warsaw,
10 December 2013.
50 United Kingdom, Department for Culture, Media and Sport
and Government Equalities Office (2013), Creating a fairer
and more equal society, www.gov.uk/government/policies/
creating-a-fairer-and-more-equal-society.
51
Croatia, Ured za ljudska prava i prava nacionalnih
manjina Vlade Republike Hrvatske (2013), Nacionalni
program zaštite i promicanja ljudskih prava za razdoblje
od 2013. do 2016. godine, www.uljppnm.vlada.hr/index.
php?option=com_content&view=article&id=113&Itemid=83.
Greece, Υπουργείο Δικαιοσύνης (2013), Εθνικό Σχέδιο
Δράσης για τα Ανθρώπινα Δικαιώματα, www.opengov.gr/
ministryofjustice/?p=5239.
31Estonia, Soolise võrdõiguslikkuse seadus, Section 3, para. 1,
www.riigiteataja.ee/en/eli/530102013038/consolide.
32
Netherlands, Commissie Gelijke Behandeling (2012), Hoe is
het bevallen? Onderzoek naar discriminatie van zwangere
vrouwen en moeders met jonge kinderen op het werk,
Utrecht.
52
33
Sweden, Diskrimineringsombudsmannen (2013), Annual
report 2012, www.do.se/sv/Material/Arsredovisning-2012/.
54Finland (2013), Yhdenvertaisuus ­Etusijalle,
www.yhdenvertaisuus.fi/kampanjat/yes-yhdenvertaisuus_
etusijalle.
34ECtHR, Eweida and Others v. The United Kingdom,
Nos. 48420/10, 59842/10, 51671/10 and 36516/10, judgment,
Strasbourg, 15 January 2013.
35ECtHR, Vallianatos and Others v. Greece,
No. 29381/09 and 32684/09, judgment, 7 November 2013,
http://hudoc.echr.coe.int/sites/eng/pages/search.
aspx?i=001-128294#{“itemid”:[“001-128294”]}.
36ECtHR, Orlandi and Others v. Italy, No. 26431/12; Isita and
Bray v. Italy, No. 26742/12; Goretti and Others v. Italy,
No. 44057/12; Garullo and Ottocento v. Italy, No. 60088/12;
Oliari and Longhi v. Italy, No. 18766/11; and Felicetti and
Others v. Italy, No. 36030/11.
53Estonia, Erinevus rikastab, campaign 2010–2014.
55
56 Spain, Boletín Oficial del Estado (2013), Ley Orgánica 8/2013,
de 9 de diciembre, para la mejora de la calidad educativa,
www.boe.es/boe/dias/2013/12/10/pdfs/BOE-A-2013-12886.
pdf.
57
37ECtHR, S.A.S. v. France, No. 43835/11, public hearing.
38 Council Directive 2000/43/EC of 29 June 2000 implementing
the principle of equal treatment between persons
irrespective of racial or ethnic origin, OJ 2000 L 180, Art. 4.
39Belgium, Arbeidsrechtbank Tongeren, Joyce V. O. D. B v. R. B.
NV, No. 11/2142/A, 2 January 2013.
40Romania, Consiliului Naţional pentru Combaterea
Discriminării (2013), Hotărârea No. 348/29 05 2013.
41
See, for example, Chapters 5 and 6 in FRA’s previous Annual
reports.
42FRA (2010), Homophobia, transphobia and discrimination
on grounds of sexual orientation and gender
identity, Luxembourg, Publications Office; see also
FRA (2014 forthcoming), EU LGBT survey: Main results,
Luxembourg, Publications Office.
Council of Europe, Steering Committee for Human
Rights (2013), Draft Recommendation CM/Rec(2014)2 of the
Committee of Ministers to member states on the promotion
of the human rights of older persons, Strasbourg, Council
of Europe, CDDH‑AGE(2013)13 final, 30 October 2013, www.
coe.int/t/dghl/standardsetting/hrpolicy/other_committees/
cddh-age/default_EN.asp?.
58 Czech Republic, Ministerstvo práce a sociálních věcí (2013),
Národní akční plán podporující pozitivní stárnutí pro období
let 2013 až 2017, Prague, Ministerstvo práce a sociálních
věcí, www.mpsv.cz/files/clanky/14540/III_vlada__Akcni_
plan_staruti_.pdf.
59 Bulgaria, Parliament, Закон за насърчаване на заетостта,
Art. 36, paras. 1 and 2, www.mlsp.government.bg/BG/law/
law/ZAKON_za_nasyrcavane_na_zaetostta.doc.
60 Denmark, Parliament (2012), Forslag til Finanslov for
finansåret 2013, 19 December 2012, www.ft.dk/RIpdf/
samling/20121/lovforslag/L1/20121_L1_som_vedtaget.pdf.
61
Finland, Government (2013), information about the
initiative, www.nuorisotakuu.fi/en/youth_guarantee.
43FRA (2013), EU LGBT survey: Results at a glance,
Luxembourg, Publications Office.
62 France, Parlement (2013), Loi n. 2013-185 du 1er mars 2013
portant création du contrat de génération, 4 March 2013.
44FRA (2013) Discrimination and hate crime against Jews
in Member States: Experiences and perceptions of
antisemitism, Luxembourg, Publications Office, p. 21.
63
45 European Institute for Gender Equality (2013), Report on
Gender Equality Index: Main findings, http://eige.europa.
eu/sites/default/files/Gender-Equality-Index-Main-findings.
pdf.
46 More detailed information on gender equality is on the
European Institute of Gender Equality website, http://eige.
europa.eu.
47 FRA (2014 forthcoming), Indicators on political participation
of persons with disabilities, Luxembourg, Publications
Office.
142
Spain, Ministerio de Sanidad, Servicios Sociales e Igualdad
(2013), No discriminación, www.msssi.gob.es/ssi/
igualdadOportunidades/noDiscriminacion.
Spain, Government (2013), Real Decreto Ley 5/2013, de
15 de marzo, de medidas para favorecer la continuidad de la
vida laboral de los trabajadores de mayor edad y promover
el envejecimiento activo, 15 March 2013.
64 Belgium, Socialistische Partij Anders (2013), ‘Vijftifplussers
zijn een plus voor elk bedrijf’, Press release,
25 October 2013, www.s-p-a.be/artikel/vijftigplussers-zij
n-een-plus-voor-elk-bedrijf/.
65 Germany, Deutscher Bundestag (2013), ‘Entwicklung
und Kosten des Bundesprogramms 50 plus seit dem
Jahr 2011: Antwort des Staatssekretärs Gerd Hoofe vom
6. Februar 2013 auf eine Schriftliche Frage der MdB Jutta
Krellmann (DIE LINKE)’, BT‑Drs. 17/12304, 8 February 2013,
http://dipbt.bundestag.de/dip21/btd/17/123/1712304.pdf.
Equality and non‑discrimination
66 European Commission (2013), ‘European Commission closes
infringement procedure on forced retirement of Hungarian
judges’, Press release, IP/13/1112, 20 November 2013.
67 Austria, Parliament (2013), Beschluss des Nationalrats vom
13. Juni 2013, www.parlament.gv.at/PAKT/VHG/XXIV/BNR/
BNR_00767/fname_310150.pdf.
68 Belgium, Residence Palace International Press Centre
(2013), ‘Diverse bepalingen inzake verkiezingen’,
Press release, 5 July 2013, www.presscenter.org/nl/
pressrelease/20130705/diverse-bepalingen-inzak
e-verkiezingen.
69 Estonia, Sotsiaalministeerium (2013), email correspondence,
20 November 2013.
70 Hungary (2013), A választási eljárásról szóló 2013. évi
XXXVI. törvény, Magyar Közlöny, No. 66/2013, http://njt.hu/
cgi_bin/njt_doc.cgi?docid=159995.243493#foot1.
71
Italy (2003), Decreto legislativo, 9 July 2003, No. 216.
72
Latvia (2013), Grozījumi Eiropas Parlamenta vēlēšanu
likumā, 31 October 2013.
73
Netherlands, Minister van Binnenlandse Zaken en
Koninkrijkrelaties (2013), Letter sent to the House of
Representatives No. 33829-1, 18 December 2013.
74 Portugal (2013), Resolução da Assembleia da
República 47/2013 pelo combate ao empobrecimento e à
agudização da pobreza entre as mulheres, 4 April 2013,
http://dre.pt/pdf1sdip/2013/04/06600/0197201973.pdf.
75
United Kingdom (2013), Electoral Registration and
Administration Act 2013, c. 6, http://services.parliament.uk/
bills/2012-13/electoralregistrationandadministration.html.
88 Denmark, Kirke- og Ligestillingsministeriet (2013),
Handicappolitisk handlingsplan 2013: Et samfund
for alle, October 2013, www.sm.dk/data/
Dokumentertilnyheder/2013/Handicappolitisk %20
handlingsplan %202013_ACC.pdf.
89 Italy, Ministero del Lavoro e delle Politiche Sociale (2013),
Proposta di programma di azione biennale per la
promozione dei Diritti e l’integrazione delle persone con
disabilità, www.lavoro.gov.it/AreaSociale/Disabilita/
Documents/Programma_azione_disabilita.pdf.
90 Latvia, Ministru kabinets (2013), Apvienoto Nāciju
Organizācijas Konvencijas par personu ar invaliditāti
tiesībām īstenošanas pamatnostādnes 2014.–2020.gadam,
19 November 2013.
91
Lithuania, Socialinės apsaugos ir darbo ministerija (2013),
Dėl Nacionalinės neįgaliųjų socialinės integracijos 2013–2019
metų programos įgyvendinimo 2013–2015 metais priemonių
plano patvirtinimo, No. A1-43, 5 February 2013.
92Slovakia (2013), Národný program rozvoja životných
podmienok osôb so zdravotným postihnutím na
roky 2014–2020.
93 United Kingdom, Department for Business Innovation and
Skills and Department for Education (2013), ‘Government
announces two new programmes for employers
to take on young disabled people’, Press release,
18 July 2013, www.gov.uk/government/news/governmen
t-announces-two-new-programmes-for-employersto-take-on-young-disabled-people.
76 Croatia, Parliament (2012), Zakon o registru birača, Narodne
novine, No. 144/12, 14 December 2012.
94 Italy, Ministero del Lavoro e delle Politiche Sociale (2013),
Proposta di programma di azione biennale per la
promozione dei Diritti e l’integrazione delle persone con
disabilità, www.lavoro.gov.it/AreaSociale/Disabilita/
Documents/Programma_azione_disabilita.pdf.
77 Czech Republic, Parliament (2013), Nový občanský zákoník,
February 2012, Section 55–65, http://aplikace.mvcr.cz/
sbirka-zakonu/ViewFile.aspx?type=c&id=6144.
95 France (2013), Circulaire relative à l’accessibilité aux
personnes handicapées, 3 January 2013, http://circulaires.
legifrance.gouv.fr/pdf/2013/01/cir_36392.pdf.
78 Hungary (2011), Magyarország Alaptörvénye, 25 April 2011.
96 Austria, Parlament (2013), Barrierefreiheit: ‘Leopold’ liest
Texte auf der Website, www.parlament.gv.at/PAKT/AKT/
SCHLTHEM/THEMA/J2013/2013_08_19_Barrierefreiheit_
Leopold.shtml.
79 Latvia (2012), Grozījumi Civillikumā, 29 November 2012.
80 Czech Republic, Parliament (2013), Nový občanský zákoník,
3 February 2012, Section 55–65, http://aplikace.mvcr.cz/
sbirka-zakonu/ViewFile.aspx?type=c&id=6144.
81
Latvia (2012), Grozījumi Civillikumā, 29 November 2012.
82 Ireland (2013), Assisted Decision‑Making (Capacity)
Bill 2013 and Explanatory Memorandum, www.oireachtas.
ie/viewdoc.asp?fn=/documents/bills28/bills/2013/8313/
b8313d.pdf.
83 United Nations (UN), Committee on the Rights of Persons
with Disabilities (2012), Concluding observations on the
initial periodic report of Hungary, CRPD/C/HUN/CO/1,
22 October 2012.
84 Hungary, Parliament (1998), A fogyatékos személyek
jogairól és esélyegyenlőségük biztosításáról szóló 1998. évi
XXVI. törvény.
85 Hungary, Parliament (2013), 2013. évi LXII. törvény
a fogyatékos személyek jogairól és esélyegyenlőségük
biztosításáról szóló 1998. évi XXVI. törvény módosításáról.
86 UN, Committee on the Rights of Persons with
Disabilities (2012), Concluding observations on the
initial periodic report of Hungary, CRPD/C/HUN/CO/1,
22 October 2012, para. 35.
87 Cyprus, Department for Social Inclusion of Persons
with Disabilities (2013), Εθνικό Σχέδιο Δράσης για την
Αναπηρία. Για την εφαρμογή της Σύμβασης του ΟΗΕ για τα
δικαιώματα των ατόμων με αναπηρίες 2013–2015, Nicosia,
Ministry of Labour and Social Insurance, Republic of Cyprus,
July 2013.
97 Sweden, 2011 års vallagskommitté (2013), E‑röstning och
andra valfrågor, SOU 2013:24, p. 154,: www.regeringen.se/
content/1/c6/21/48/78/89002b33.pdf.
98 Council Directive 2000/78/EC of 27 November 2000
establishing a general framework for equal treatment
in employment and occupation, OJ 2007 L 303, Art. 5.
99 Croatia (2013), Zakon o profesionalnoj rehabilitaciji
i zapošljavanju osoba s invaliditetom, Narodne novine,
No. 157/13, http://narodne-novine.nn.hr/default.aspx.
100Bulgaria, Министерство на труда и социалната
политика, Letter No. 05-10 from 10 October 2013.
101 Belgium, Flemish Government (2013), Ontwerp van
Decreet betreffende maatregelen voor leerlingen met
specifieke onderwijsbehoeften, 21 November 2013,
www.vlaamsparlement.be/Proteus5/showParlInitiatief.
action?id=901710.
102 Ibid.; Belgium, Vlaams Minister van Onderwijs, Jeugd,
Gelijke Kansen en Brussel (2013), ‘Na 15 jaar discussie
keurt Vlaamse regering het ontwerpdecreet rond inclusief
onderwijs goed’, Press release, 8 November 2013, www.
vcov.be/vcov/Onderwijsflash/tabid/177/language/nl-NL/
Default.aspx.
103 Malta, House of Representatives (2013), Act VII of 2013, the
Civil Code (Amendment) Act, 14 June 2013.
104 Poland, Sejm (2013), Results of voting on the draft proposal,
http://sejm.gov.pl/sejm7.nsf/PrzebiegProc.xsp?nr=1469.
143
Fundamental rights: challenges and achievements in 2013
105 Ireland, Department of Social Protection, (2013), Gender
Recognition Bill 2013, www.welfare.ie/en/Pages/
Gender-Recognition-Bill-2013.aspx.
106 Latvia, Ministru Kabineta (2013), Noteikumi Nr. 761
‘Noteikumi par civilstāvokļa aktu reģistriem’,
3 September 2013.
107 Council of Europe (2013), Comments on the 10th report by
Lithuania on the implementation of the European Social
Charter (RAP/RCha/LTU/10(2013), 11 April 2013.
108 Lithuania, LGL – National LGBT Rights Organization (2013),
For the recognition of family diversities: Fines for
thousands, www.lgl.lt/en/news/for-defiance-of-familyfines-for-thousands-are-suggested.
119 European Commission (2014), Cohesion policy 2014–2020,
http://ec.europa.eu/regional_policy/what/future/
index_en.cfm.
109 Netherlands, Eerste Kamer der Staten‑Generaal (2013),
Wijziging vermelding van geslacht in de
geboorteakte, www.eerstekamer.nl/
wetsvoorstel/33351_wijziging_vermelding_van.
120 Regulation (EU) No. 1304/2013 of the European Parliament
and of the Council of 17 December 2013 on the European
Social Fund and repeating Council Regulation (EC)
No. 1081/2006, OJ 2013 L 347, 20 December 2013, para. 19.
110 Ilga Europe (2013), Annual review of the human
rights situation of lesbian, gay, bisexual, trans and
intersex people in Europe 2013, pp. 18, 37, 125,
https://dl.dropboxusercontent.com/u/15245131/2013.pdf.
121 Regulation (EU) No. 1304/2013 of the European Parliament
and of the Council of 17 December 2013 on the European
Social Fund and repeating Council Regulation (EC)
No. 1081/2006, OJ 2013 L 347, 20 December 2013.
111Belgium (2013), Interfederaal actieplan tegen homofobe
en transfobe discriminatie, 10 June 2013, http://igvm-iefh.
belgium.be/nl/actiedomeinen/transgender/beleid/.
122 Council of the European Union (2012), 2011/0276 (COD),
Addendum 2 to Note 8207/12 ADD 2 Rev 1, Brussels,
20 April 2012; see also FRA Annual report 2012.
112 Denmark, Justitsministeriet (2013), ‘Information
outlining the purpose and goals of the workgroup’,
press release, www.justitsministeriet.dk/sites/default/
files/media/Arbejdsomraader/Ministeriet/Raad/
K %C3 %B8nsskifte %20Kommissorium %20- %20JM.pdf.
123 Regulation (EU) No. 1303/2013 of the European Parliament
and of the Council of 17 December 2013 laying down
common provisions on the European Regional Development
Fund, the European Social Fund, the Cohesion Fund, the
European Agricultural Fund for Rural Development and
the European Maritime and Fisheries Fund covered by the
Common Strategic Framework and laying down general
provisions on the European Regional Development Fund,
the European Social Fund and the Cohesion Fund and
repealing Council Regulation (EC) No. 1083/2006, OJ 2013
L 347, 20 December 2013, pp. 320–469, Art. 19 and Annex XI.
113 Information provided by the Finnish Sosiaali- ja
Terveysministeriö.
114 France, Commission Nationale Consultative des Droits
de l’Homme (2013), Opinion on gender identity and
rectification of gender in civil status, 27 June 2013,
www.cncdh.fr/sites/default/files/avis_cncdh_identite_de_
genre_27_ juin_2013_1.pdf.
115 Cyprus (2011), ο περί της Καταπολέμησης Ορισμένων
Μορφών και Εκδηλώσεων Ρατσισμού και Ξενοφοβίας
μέσω του Ποινικού Δικαίου Νόμος του 2011[134(I)/2011],
21 October 2011.
116Netherlands, Tweede Kamer der Staten‑Generaal
(2013), Emancipatiebeleid: Brief van de minister van
onderwijs, cultuur en wetenschap aan de voorzitter van
de Tweede Kamer der Staten‑Generaal, https://zoek.
officielebekendmakingen.nl/kst-30420-180.html.
117 Portugal, CIG (2013), Awareness‑Raising Campaign, Dislike
bullying homofóbico, www.dislikebullyinghomofobico.pt/.
144
118Regulation (EU) No. 1303/2013 of the European Parliament
and of the Council of 17 December 2013 laying down
common provisions on the European Regional Development
Fund, the European Social Fund, the Cohesion Fund, the
European Agricultural Fund for Rural Development and
the European Maritime and Fisheries Fund covered by the
Common Strategic Framework and laying down general
provisions on the European Regional Development Fund,
the European Social Fund and the Cohesion Fund and
repealing Council Regulation (EC) No. 1083/2006, OJ L 347,
20 December 2013, pp. 320–469.
124 Regulation (EU) No. 1381/2013 of the European Parliament
and of the Council of 17 December 2013 establishing
a Rights, Equality and Citizenship Programme for the
period 2014 to 2020; Text with EEA relevance, OJ 2013 L 354,
28 December 2013, pp. 62–72.
125 European Commission, DG Justice, Fundamental Rights
and Citizenship funding programme, http://ec.europa.eu/
justice/grants/programmes/fundamental-citizenship/.
126 European Commission, DG Justice, Daphne III funding
programme, http://ec.europa.eu/justice/grants/
programmes/daphne/index_en.htm.
127 European Commission, DG Employment, Social
Affairs & Inclusion, Progress programme (2007–2013),
http://ec.europa.eu/social/main.jsp?catId=327.
6
Racism, xenophobia and related intolerance ����������������������� 149
6.1 Racism, xenophobia and related intolerance
again top political agenda ������������������������������������������� 149
6.2 Racism, xenophobia and related intolerance
fuel incidents and brutal crimes ���������������������������������� 151
6.2.1 Racism, xenophobia and related
intolerance in politics ������������������������������������� 152
6.2.2 Responding to political intolerance �������������� 153
6.2.3 Racism and xenophobia persist
in the European Union ����������������������������������� 153
6.3 Discriminatory ethnic profiling persists ���������������������� 155
6.4 Responses to manifestations of racism,
xenophobia and related intolerance ��������������������������� 156
6.5 EU Member States need better official data
collection to address racist crime effectively ������������ 158
Outlook ������������������������������������������������������������������������������������ 159
Fundamental rights: challenges and achievements in 2013
UN & CoE
January
19 February – Council of Europe European Commission against Racism and Intolerance (ECRI) publishes conclusions on
the implementation of a number of priority recommendations made in its country reports on Austria, Estonia and the
United Kingdom, which were released in 2010
19 February – ECRI issues its fourth report on Ireland
February
March
4 April – United Nations Committee on the Elimination of Racial Discrimination (CERD) concludes that the absence of an
effective investigation by Germany into statements made by Thilo Sarrazin about migrants of Turkish and Arab
background amounted to a violation of the International Convention on the Elimination of All Forms of Racial
Discrimination (ICERD)
16 April – Council of Europe Commissioner for Human Rights issues his report following his visit to Greece, with
a particular focus on intolerance and hate crimes
17 April – CERD issues its Concluding observations on Slovakia
April
26 May – UN Office for the High Commissioner for Human Rights, Special Rapporteur on freedom of religion or belief,
issues a report on contemporary forms of racism, racial discrimination, xenophobia and related intolerance on the
implementation of General Assembly resolution 67/154 on glorification of Nazism
May
6 June – Special Rapporteur on contemporary forms of racism, racial discrimination, xenophobia and related intolerance
issues his report on his visit to Spain
June
9 July – ECRI issues its fourth reports on Finland and Portugal, and publishes conclusions on the implementation of
a number of priority recommendations made in its country reports on Poland and France, which were released in 2010
9 July – The European Court of Human Rights (ECtHR) rules in the case Vona v. Hungary that disbanding the Hungarian
Guard Association (Magyar Gárda), which had been involved in anti‑Roma rallies and paramilitary parading, does not
violate the European Convention of Human Rights (ECHR)
July
23 August – CERD adopts General Recommendation on combating racist hate speech
August
23 September – CERD issues its Concluding observations on Cyprus and Sweden
September
15 October – ECRI issues its fourth reports on Malta and the Netherlands
October
November
December
146
Racism, xenophobia and related intolerance 149
EU
17–18 January – Informal meeting of Justice and Home Affairs Ministers on EU action in countering hate crime, racism,
antisemitism and xenophobia
January
February
14 March – European Parliament adopts a resolution on strengthening the fight against racism, xenophobia and
hate crime
March
April
May
6-7 June – Council of the European Union adopts conclusions calling for an update of the EU Strategy for combating
radicalisation and recruitment to terrorism
June
July
August
23 September – Ministers of 17 EU Member States meet in Italy to sign the Rome Declaration on diversity and the fight
against racism
September
October
12–13 November – Fundamental Rights Conference on hate crime is organised by the European Union Agency for
Fundamental Rights (FRA) and hosted in cooperation with the Lithuanian Presidency of the Council of the European
Union
November
6 December – Council of the European Union issues conclusions on combating hate crime in the European Union
December
147
6
Racism, xenophobia and
related intolerance
The impact of the economic crisis, high unemployment rates, fears relating to the arrival of migrants and
a gradual loss of trust in democratic processes fuel racism, xenophobia and related intolerance in the European
Union (EU). Some political rhetoric at local, national and European levels exacerbates an aggressive tone, not
least because the media pick up on these messages, which then echo across social media. The EU institutions
and Member States must therefore remain vigilant and reinvigorate their efforts to counter the expression of
racism, xenophobia and related intolerance in all their forms.
6.1
Racism, xenophobia
and related intolerance
again top political
agenda
Black ministers of state compared to apes; a centrist
mayor saying in public that maybe Hitler did not kill
enough gens du voyage; Members of Parliament
claiming that Zionists financed and organised the
Holocaust; the scapegoating of Roma, asylum seekers,
refugees, migrants and members of ethnic and reli‑
gious minorities for the ills of society; murders moti‑
vated by racist and extremist considerations: all these
elements contributed to putting racism, xenophobia
and related intolerance back on the political agenda
of the EU and its Member States in 2013. These issues
are increasingly discussed within a broader context of
‘hate crime’ (see also Chapters 5, 7 and 9).
The fight against racism, xenophobia and related
i­ntolerance gained political attention at the highest
level in January. The Irish Presidency of the Council of
the European Union then hosted an informal meeting
of Justice and Home Affairs Ministers on EU action to
counter hate crime, racism, antisemitism and xeno‑
phobia, drawing on FRA evidence presented by FRA’s
director. This meeting set the stage for the year to
Key developments in the area of racism, xenophobia
and related intolerance
• Racism, xenophobia and related intolerance return to the top
of the political agendas of the EU, its institutions and
its Member States.
• Murders motivated by racism and extremism are committed
in a number of Member States.
• Elements of racist and extremist ideology are openly
expressed in the public sphere in some Member States.
• Member States take steps to ban extremist parties or groups.
• All 28 Member States sign the Rome Declaration on diversity
and the fight against racism.
• Discriminatory ethnic profiling continues in some Member
States, including in the context of immigration checks.
• Few changes take place in the status of official mechanisms
of data collection on racist and related crime.
• The Council of the European Union urges Member States and
the European Commission to take more effective action to
counter hate crime, including that motivated by racism.
come, focusing the attention of political leaders on
their duty to counter these phenomena.
The European Parliament further called on “Member
States to take all appropriate measures to encourage
149
Fundamental rights: challenges and achievements in 2013
the reporting of hate crimes and of every racist and
xenophobic crime and to ensure adequate protection
for people who report crimes and for the victims of
racist and xenophobic crime” in March1 (see Chapter 9 for
more information on the rights of victims of hate crime).
in its findings between, on the one hand, genuine and
serious incitement to extremism and, on the other hand,
the right of individuals (including journalists and politi‑
cians) to express their views freely even if they offend,
shock or disturb others.
The Council of the European Union focused attention
on the need for more concrete actions to be developed
to “counter extreme forms of intolerance, such as
racism, anti‑Semitism, xenophobia and homophobia”2
in its June conclusions on fundamental rights and the
rule of law.
The United Nations Committee on the Elimination of
Racial Discrimination (CERD) called upon states to give
due attention to all manifestations of racist hate speech
and take effective measures to combat them, in its
general recommendation on combating racist hate
speech issued in September.4
FRA ACTIVITY
Assessing the impact of the
Framework Decision on Racism and
Xenophobia, with special attention
to victims’ rights
Hate crime can vary from everyday acts
­committed by individuals on the street or over the
internet to crimes carried out systematically by
extremist groups. In this opinion, FRA assesses
the impact of the Framework Decision on Racism
and Xenophobia on the rights of victims of crimes
motivated by hatred and prejudice, including rac‑
ism and xenophobia.
Building on evidence collected and analysed by
FRA, including its large‑scale surveys and its the‑
matic and Annual reports, the opinion forms part
of FRA’s work on supporting efforts by EU institu‑
tions and Member States to combat hate crime in
the EU. It was developed in response to a request
from the Council of the European Union’s Working
Party on Fundamental Rights, Citizens’ Rights and
Free Movement of Persons.
The opinion encourages the EU and its Member
States to address hate crime with targeted action
in a number of areas, including awareness raising,
building trust in law enforcement, enhanced
penalties and judicial review, as well as
­
data collection.
FRA (2013), Opinion of the European Union Agency for Fundamental
Rights on the Framework Decision on Racism and Xenophobia – with
special attention to the rights of victims of crime, available at:
http://fra.europa.eu/sites/default/files/fra-opinion-2-2013framework-decision-racism-xenophobia_en.pdf
In July, the European Court of Human Rights (ECtHR)
issued a factsheet citing a number of cases where it
ruled speech of a racist, xenophobic, antisemitic or
aggressively nationalist nature and speech discrimi‑
nating against minorities and immigrants to be “offen‑
sive and contrary” to the European Convention on
Human Rights (ECHR).3 The court is careful to distinguish
150
In a similar development, ministers of 17 EU Member
States met in Rome in September to condemn the
stream of racist abuse directed at Cécile Kyenge, Italy’s
first minister of African origin. Highlighting the special
responsibilities of political leaders, they called for
pan‑European action to fight racism by promoting diver‑
sity. All 28 Member States had signed the so‑called
Rome Declaration on the matter by November,5 by
which time France’s Minister for Justice, Christiane
Taubira, also of African descent, had been the subject
of similar racist abuse.
The EU Commissioner for Home Affairs highlighted the
dangers of extremism, speaking at the Fundamental
Rights Conference on hate crime jointly organised by
FRA and the Lithuanian Presidency in November. 6
She stressed that:
“We have seen the development of Islamophobic,
anti‑Semitic and white supremacist ideology in
far‑right groups. These groups are also
anti-demo­cratic, intolerant, and violent. They are
divisive, using one another to create suspicion
and hatred between communities. These groups
are behind a mounting wave of harassment and
violence targeting asylum seekers, immigrants,
ethnic minorities and sexual minorities in
many European countries.”7
Finally, the Council of the European Union, in its
­conclusions on combating hate crime issued in
December, called on
“the Fundamental Rights Agency to continue
assessing in an objective, reliable and compa‑
rable manner the extent of racism, xenophobia,
anti‑Semitism and other forms of hate crime
through EU‑wide surveys and to work together
with Member States to facilitate exchange of
good practices and assist the Member States at
their request in their effort to develop effective
methods to encourage reporting and ensure
proper recording of hate crimes.”8
(See the FRA activity box on FRA’s antisemitism survey
on the next page.)
Racism, xenophobia and related intolerance
FRA ACTIVITY
Responding to antisemitism in the European Union
Antisemitism is still a reality in the European Union. Little is known, however, of how it affects Jewish communi‑
ties. That is why FRA conducted a survey asking self‑identified Jews their opinions about trends in antisem‑
itism; how antisemitism affects their everyday life; their personal experiences as victims or witnesses of anti‑
semitic incidents; their worries about becoming a victim of an antisemitic attack; and their actual experiences
of discrimination because they are Jewish.
• Two thirds of respondents (66 %) consider antisemitism to be a problem across the EU Member States sur‑
veyed. Three quarters of respondents (76 %) indicate that antisemitism has worsened over the past five years
in the country where they live.
• Three quarters (75 %) of respondents consider online antisemitism to be a problem. Almost three quarters of
respondents (73 %) said that antisemitism online has increased over the last five years.
• In the 12 months preceding the survey, 26 % of all respondents experienced an incident or incidents involving
verbal insult or harassment because they are Jewish; 4 % experienced physical violence or threats of
violence.
• Almost half (46 %) of the respondents worry about becoming the victim of an antisemitic verbal insult or
harassment in the next 12 months, and one third (33 %) fear a physical attack in the same period.
• Almost two thirds (64 %) of those who experienced physical violence or threats of violence did not report the
most serious incident to the police or to any other organisation. Three quarters (76 %) of the respondents
who experienced antisemitic harassment in the five years preceding the survey did not report the most seri‑
ous incident. More than four in five (82 %) of those who said that they felt discriminated against in the
12 months preceding the survey because they are Jewish did not report the most serious incident to any
organisation.
• Close to one quarter (23 %) of the respondents said that they at least occasionally avoid visiting Jewish
events or sites because they would not feel safe there, or on the way there, as a Jew. Over one quarter of all
respondents (27 %) avoid certain places in their local area or neighbourhood at least occasionally because
they would not feel safe there as a Jew.
• One in 10 respondents experienced discrimination when looking for work or at work in the 12 months preced‑
ing the survey.
• Over half of all survey respondents (57 %) heard or saw someone claiming that the Holocaust was a myth,
or that it had been exaggerated, in the 12 months preceding the survey.
• Large proportions of respondents said they considered emigrating from the Member State they live in be‑
cause they do not feel safe there as Jews.
FRA’s survey on antisemitism collected data from 5,847 self‑identified Jewish respondents (aged 16 or over) in
eight EU Member States: Belgium, France, Germany, Hungary, Italy, Latvia, Sweden and the United Kingdom.
These countries cover over 90 % of the estimated Jewish population in the EU. It is the first EU survey to collect
comparable data on Jewish people’s experiences and perceptions of hate motivated crime, discrimination and
antisemitism.
FRA (2013), Discrimination and hate crime against Jews in EU Member States: experiences and perceptions of antisemitism, available at: http://fra.
europa.eu/sites/default/files/fra-2013-discrimination-hatecrimeagainst-jews-eu-member-states_en.pdf; data available through data explorer tool
at: http://fra.europa.eu/DVS/DVT/as2013.php
6.2
Racism, xenophobia
and related intolerance
fuel incidents and brutal
crimes
Racism, xenophobia and related intolerance manifested
themselves in the most brutal form in several
EU Member States in 2013: murder motivated by
racism and extremism.
FRA fieldwork in Greece found that Greece has
­witnessed a steep increase in phenomena of racist
violence, discrimination and intolerance, as well as
extremism, despite the notable decrease in the overall
violent crime rate in the country.9 Shehzad Luqman, 26,
a Pakistani migrant worker, was stabbed to death
in Athens, Greece, in January, allegedly by two young
Golden Dawn supporters, whose trial started
in December. Mohammed Saleem, 82, was killed on his
way back home from mosque in Birmingham, United
Kingdom, by a man who proclaimed that he wanted to
151
Fundamental rights: challenges and achievements in 2013
initiate a ‘race war’. Lee Rigby, 25, was murdered in
broad daylight in the streets of London in May by
two radicalised Muslim youths. Clément Méric, 18, an
anti‑fascist activist, died from the consequences of
a fight with skinheads in Paris, France, in June. Pavlos
Fyssas, 32, a Greek hip‑hop artist, was stabbed to death
by a Golden Dawn party member in September
in Athens. This was followed by a retaliatory attack, in
which two Golden Dawn sympathisers (Manos
Kapelonis, 22, and Georgios Fountoulis, 27) were mur‑
dered in front of the party’s headquarters in November.
These murders are at the sharp end of a societal climate
where intolerant views come to be more openly and
violently expressed in the EU. Political actors share
responsibility for enabling such a climate. This is shown
in the cases of the politicians Cécile Kyenge in Italy and
Christiane Taubira in France, who were the targets of
racist abuse by other politicians, with the media often
serving as an echo chamber and the internet providing
a further outlet for the expression of such abuse.
6.2.1
Racism, xenophobia and related
intolerance in politics
Racism and discrimination against foreigners and
migrants is often fuelled by the discourse of politicians,
as the Commissioner for Human Rights of the Council
of Europe points out.10 In addition, CERD highlights that
“the use of racist discourse by some politicians and in
the media […] vilifies and promotes prejudices against
persons of foreign origin”.11 FRA evidence also shows
that Jews often heard antisemitic statements being
made in the context of political events or speeches.12
“Europe has been experiencing a worrying intensification of
activities of racist extremist organisations, including
political parties. […] It worries me deeply that the European
community and national political leaders appear not to be
fully aware of the serious threat that these organisations
pose to the rule of law and human rights. […] National
authorities need to be vigilant and combat racism and
extremism at all levels of society.”
Council of Europe Commissioner for Human Rights (2013), Europe must
combat racist extremism and uphold human rights, Human Rights
Comment, 13 May 2013, available at: http://humanrightscomment.
org/2013/05/13/racist-extremism/
The year 2013 was marked by steady support for
political parties with largely xenophobic anti‑foreigner,
anti‑migrant and anti‑Muslim agendas in a number of
EU Member States including Austria, Bulgaria, the Czech
Republic, France, Greece, Hungary and the Netherlands.
Groups campaigning on ultra‑nationalist and x­ enophobic
platforms initiated steps to be recognised as political
parties in their own right, sometimes with success. The
rhetoric of these groups and parties often accuses
European integration of further eroding national sov‑
ereignty; highlights what they consider as the negative
152
impact of social integration on national identity, par‑
ticularly as regards accommodating the needs of reli‑
gious minorities, such as Muslims; and makes a case for
national preference, including when it comes to access
to the social welfare system.
FRA ACTIVITY
Assessing the effectiveness of
responses to racism, discrimination,
intolerance and extremism
Crimes motivated by racism, xenophobia and re‑
lated intolerances persist throughout the Europe‑
an Union, as do the mainstreaming of elements of
extremist ideology in political and public dis‑
course, and ethnic discrimination. Growing alarm
was expressed at the national, EU and interna‑
tional levels concerning violent manifestations of
racism and intolerance. An additional important
concern is the substantial parliamentary repre‑
sentation of parties that use paramilitary tactics
or are closely associated with paramilitary groups
and use that extremist rhetoric to target irregular
migrants in Greece, and the Roma and Jews
in Hungary.
In this context, FRA took the initiative to collect
data and compile a thematic situation report that
examines the effectiveness of responses by pub‑
lic authorities, statutory human rights bodies, civil
society organisations and others to counter rac‑
ism, discrimination, intolerance and extremism.
The report takes Greece and Hungary as case
studies to develop concrete and practical propos‑
als for action.
The identification of barriers to counter such phe‑
nomena is, however, relevant to the EU as a whole.
The proposals contained in the report on issues
such as tackling racist and related crime, increas‑
ing trust in the police and countering extremism
are, therefore, useful in all EU Member States.
FRA (2013), Thematic situation report: Racism, discrimination,
intolerance and extremism. Learning from experiences in Greece
and Hungary, available at: http://fra.europa.eu/sites/default/files/
fra-2013-thematic-situation-report-3_en_1.pdf
One example is the application, in November, by the
newly formed Nationalist Party of Bulgaria to be offi‑
cially recognised as a party, which would allow it to
benefit from public funding. Stated aims of this party
are to “smash the Gypsy terror with an iron hand” and
to “demolish social policies that stimulate the birth rate
of minorities and parasitism”.13
In a development reminiscent of the events in
Gyöngöspata in Hungary in 2011 (see FRA Annual
report 2011, p. 156), the Nationalist Party in Bulgaria
formed civil groups with the cooperation of the
Racism, xenophobia and related intolerance
Bulgarian National Union to patrol areas with large
migrant populations and where refugee camps are
located.14 In response, the National Centre for Roma
Development announced that it would establish its own
groups to protect Roma from such patrols.15
preventative measures to protect democracy and ban
the Magyar Gárda.20 It ruled that, if the activities of an
association amount to widespread racist intimidation
of a group, then banning it does not contravene the
European Convention of Human Rights.
The reach of ultra‑nationalistic and xenophobic ideology
in the EU is also illustrated by the efforts of the newly
formed Hungarian Dawn (Magyar Hajnal) group to be
recognised as a political party. ‘Dawn’, here, is a direct
reference to Greece’s Golden Dawn party. Golden Dawn
claimed 7 % of the vote in the 2012 elections, is the
fourth‑largest party in the Hellenic Parliament and has
an extreme nationalist agenda, from which Magyar
Hajnal takes inspiration. Magyar Hajnal’s mission is to
“revive the White and ethnic Hungarian identity”16 and
its members are screened to establish the ethnic roots
and religious background of their families, effectively
checking their ‘racial purity’. The court rejected the
application on the grounds that it was incomplete, but
Magyar Hajnal continued its efforts to be recognised as
a political party, including through seeking to rename
an existing party.
Members of Parliament can also be called to account
by lifting their parliamentary immunity to answer to
charges levelled against them in court. This was the
case for Marine Le Pen, leader of the National Front
(Front National). Her immunity was lifted by the
European Parliament in July at the request of the
Ministry of Justice in France so that she could answer
charges of “incitement to hatred, discrimination or
violence against a group of persons on grounds of
their religious affiliation”.21
6.2.2
Responding to political
intolerance
Political actors have a particular role to play in ­countering
hate speech. The responsibility of political actors in that
regard was the subject of a conference organised by
the Council of Europe and the Polish Ministry of
Digitisation (Ministerstwo Administracji i Cyfryzacji) in
September, at which FRA’s director gave a speech. Next
to setting out the roles and responsibilities of political
actors and the media in fighting hate speech, the con‑
ference highlighted the potential of education and
training on the values of diversity and living together
in this fight.17
EU Member States have other means at their disposal
to address racist, xenophobic and extremist actions of
parties, groups and their membership. They could, for
example, consider adopting or strengthening existing
legal provisions to suppress public funding for political
parties whose members are responsible for racist or
discriminatory acts, as recommended by ECRI.18 Another
means would be to forbid and prevent the activities of
extremist organisations that promote and incite racial
hatred by disbanding them and declaring them illegal,
as recommended by CERD.19
The European Court of Human Rights (ECtHR), in its
decision of 9 July 2013, confirmed the disbanding of the
Hungarian Guard Association (Magyar Gárda) because
of the activities of its Hungarian Guard Movement.
These activities included paramilitary rallies in villages
with Roma populations across Hungary and advocacy
for racially motivated policies. The court found that the
Hungarian authorities were entitled to take
The Greek Parliament lifted the immunity of six leading
Members of Parliament representing Golden Dawn
in October to enable a deeper investigation into their
alleged involvement in serious criminal offences.
Charges ranged from establishment and participation
in a criminal organisation, murder and grievous bodily
harm to money laundering and bribery.22 In addition,
the parliament voted to suspend state funding for
Golden Dawn. Furthermore, in December a Joint
Ministerial Decision was issued, suspending any kind
of state funding for Golden Dawn.23
The initiative taken in December by 16 state
g
­ overnments in Germany to attempt to ban the far‑right
National Democratic Party must also be noted. The
proposed ban rested on the notion that this party
actively seeks to undermine or overthrow the
free democratic order.24
6.2.3
Racism and xenophobia persist
in the European Union
Roma, persons of African descent, migrants and asylum
seekers continue to face racism and xenophobia in the
European Union, as evidence from Austria,25 Bulgaria,26
Finland,27 Germany,28 Greece,29 Hungary,30 Ireland,31 the
Netherlands,32 Slovakia33 and Sweden34 shows (see also
Chapter 7 for more information on Roma).
The arrival of asylum seekers and refugees in Bulgaria
and Hungary in larger numbers than usual fuelled the
expression of xenophobic sentiments and attitudes in
these countries. This raises the question of what effect
the arrival of asylum seekers from Syria and other conflict
zones in large numbers could have in EU Member States
not usually considered t­ raditional destination countries.35
In Bulgaria, opinion polls showed that feelings of
­hostility, resentment and fear towards asylum seekers
and refugees are widespread.36 The Council for Electronic
Media (Съвет за Електронни Медии) criticised media
for the way they reported immigration and refugee
153
Fundamental rights: challenges and achievements in 2013
issues,37 and the United Nations High Commissioner for
Refugees urged Bulgarian authorities to take steps to
stem the expression of xenophobia against asylum
seekers and refugees in the country.38
Promising practice
Acknowledging racist crime: mapping
Afrophobia in Sweden
The authorities in Sweden refer to racism and dis‑
crimination against black persons as Afrophobia.
Little is known yet about the phenomenon, but the
Swedish National Council for Crime Prevention
(Brottsförebyggande rådet) shows that the num‑
ber of recorded Afrophobic crimes in the country is
increasing steadily, with about one in five of such
crimes recorded in 2012 being of a violent nature.
Acknowledging the issue, the Swedish govern‑
ment commissioned an NGO (Mångkulturellt Cen‑
trum) to map racism and discrimination against
persons of African descent in Sweden. This map‑
ping will review official hate crime data and high‑
light examples of good practice to counter Afro‑
phobia, with a particular focus on awareness‑raising
activities for children and youth. The results are
expected to be published in January 2014.
For more information, see Arbetsmarknadsdepartementet
(2013), Mångkulturellt centrum ska kartlägga afrofobi, available
at: www.regeringen.se/sb/d/17988/a/229303
In Hungary, xenophobic sentiments were expressed in
towns hosting reception and detention centres, such as
Balassagyarmat, Bicske, Debrecen and Vámosszabadi.
Incidents involving asylum seekers, related to the over‑
crowding of a refugee reception centre, contributed to
an increase of xenophobic sentiments among the
public.39 The 2013 results of a yearly survey of a repre‑
sentative sample of the Hungarian population show that
36 % of respondents would reject all asylum applications.40
CERD concluded in April that the absence of an effective
investigation by Germany into statements made by
Thilo Sarrazin in 2009 about migrants of Turkish and
Arab background amounted to a violation of the
International Convention on the Elimination of All Forms
of Racial Discrimination (ICERD). 41 Mr Sarrazin was
a member of the executive board of the German
national bank at the time.
While CERD acknowledged the importance of freedom
of speech, it concluded that:
“Mr. Sarrazin’s statements amounted to
­dissemination of ideas based upon racial supe‑
riority or hatred and contained elements of
incitement to racial discrimination. By concen‑
trating on the fact that Mr. Sarrazin’s statements
did not amount to incitement of racial hatred and
154
were not capable of disturbing public peace, the
State party failed its duty to carry out an effec‑
tive investigation whether or not Mr. Sarrazin’s
statements amounted to dissemination of ideas
based upon racial superiority or hatred”.
The German government was given 90 days to react to
the complaint and to decide on measures that needed
to be undertaken. It informed CERD of its willingness to
review whether or not existing legislation is sufficient.42
The UN also urged Germany to develop a ­comprehensive
strategy to combat racial discrimination.43 The Human
Rights Council found deficits in the protection of human
rights of migrants in the framework of the Universal
Periodic Review (UPR). The UPR criticised, among other
matters, the German state’s handling of the 10 murders
allegedly perpetrated by members of the right‑wing
extremist group National Socialist Underground (NSU).
In response, Germany promised to enhance how it
tackles discrimination against migrants.44
The internet and social networking sites increasingly
offer platforms for the expression of racist, xenophobic
and intolerant sentiments. This is confirmed by FRA
surveys, such as the EU LGBT survey, the survey on
antisemitism and the EU‑wide survey on violence
against women. 45 Europol has also highlighted that
social networking sites are increasingly used by extrem‑
ists to disseminate their ideologies and to radicalise,
recruit and mobilise their followers.46
“Racist hate speech can take many forms and is not
confined to explicitly racial remarks. As is the case with
discrimination […] speech attacking particular racial or
ethnic groups may employ indirect language in order to
disguise its targets and objectives […] States parties should
give due attention to all manifestations of racist hate
speech and take effective measures to combat them […]
whether emanating from individuals or groups, in whatever
forms it manifests itself, orally or in print, or disseminated
through electronic media, including the Internet and social
networking sites, as well as non‑verbal forms of expression
such as the display of racist symbols, images and behaviour
at public gatherings, including sporting events.”
Committee on the Elimination of Racial Discrimination (2013), General
Recommendation No. 35: combating racist hate speech, Geneva,
United Nations
The privacy afforded to internet users does not mean
that they can post racist and xenophobic abuse with
impunity (see also Chapter 3). For instance, the Supreme
Court in Italy found in August that managing a blog
inciting racial hatred is the same as participating in
a criminal association.47
Still in Italy, a representative of the Lega Nord political
party was served with a 13-month sentence, a €10,000
fine and a three‑year ban on holding public office
by the Court of First Instance of Padua in July. 48
Racism, xenophobia and related intolerance
The representative was found guilty of incitement to
commit acts of sexual violence motivated by racism,
having posted the following comment on Facebook,
targeting Cécile Kyenge, Italy’s first black minister: “But
is there no one there who could rape her, just to let her
understand how a victim of such a ferocious crime
could feel? Shame!”
In January, the Court of First Instance in Paris, France,
held that Twitter should provide information to the
plaintiffs enabling them to identify the authors of
tweets posted under antisemitic hashtags (#unbonjuif –
a good Jew; #unjuifmort – a dead Jew). The court’s
judgment also required Twitter to make available
a system on its French platform which enables users to
report content that falls under the category of crimes
against humanity and incitement to racial hatred.49
Still in relation to antisemitic content posted online, an
offender in Latvia received a six‑month suspended
sentence in January on the grounds of incite‑
ment to hatred.50
Prosecutors in Belgium 51 and the United ­K ingdom 52
can also call upon specific guidelines relating to how
to prosecute online content of a racist nature. The
Guidelines on prosecuting cases involving communica‑
tions sent via social media drafted by the Crown
Prosecution Office for England and Wales describe
action it is necessary to take before initiating a pros‑
ecution. The first stage requires sufficient evidence
and the second involves considering the public interest.
The guidelines also provide principles for initially
assessing the communication’s content. Before
bringing charges, the prosecutors are further encour‑
aged to take into account the context in which the
interactive social media dialogue takes place and to
carefully consider if the prosecution would not consti‑
tute a breach of the right to free speech as protected
by the ECHR.
In Belgium, the Circular regarding the investigation and
prosecution policy on discrimination and hate crimes
(including discrimination on the basis of gender)53 aims
to standardise research policies and prosecution for
offences, laws and decrees on ‘anti‑discrimination’,
‘gender’ and ‘racism’, including the phenomenon of
Holocaust denial. Its specific objectives are identifica‑
tion and more efficient recording of the facts of dis‑
crimination and hate crimes; raising awareness among
prosecutors, labour auditors and police; providing
guidance in the investigation and prosecution of the
offences concerned for judges and police officers on
the ground; improving collaboration and mutual
exchange between police and judicial actors and other
stakeholders. The circular also notes that special atten‑
tion needs to be paid to investigating offences com‑
mitted over the internet.
Evidence from Cyprus,54 Finland 55 and the United
Kingdom56 shows that schools can be the theatre of
racist abuse. Education should, however, offer effective
means to counter racism. The OSCE Parliamentary
Assembly acknowledged this in June, when it called
upon participating States to
“increase efforts to counter racism, xenophobia,
intolerance and discrimination, also through
education, inter alia, by reviewing, as appro‑
priate, educational curricula and textbooks in
order to ensure that that they are free from
prejudice and negative stereotypes and by intro‑
ducing or further elaborating sections on toler‑
ance and non‑discrimination.”57
Promising practice
Keeping racism out of the classroom
and off the playground
The Immigrant Council of Ireland, an NGO advo‑
cating for and providing legal advice to migrants,
published an anti‑racism policy guide to assist
schools in ensuring that their anti‑bullying poli‑
cies respond adequately to racist incidents. The
guide sets out procedures for identifying, report‑
ing and dealing with racist incidents. It also pro‑
vides tools and management support for school
staff to directly intervene in racist incidents and
means of sanctioning offenders.
The guide further stresses the importance of pre‑
ventative measures, such as running aware‑
ness‑raising activities during European anti‑rac‑
ism week, organising intercultural days or inviting
guest speakers from diverse ethnic backgrounds
to serve as positive role models.
For more information, see: www.immigrantcouncil.ie/images/
stories/pdfs/Anti-Racism_policy _2.pdf
6.3
Discriminatory ethnic
profiling persists
Discriminatory ethnic profiling is unlawful, yet it
­persists, thereby contributing to the deterioration of
social cohesion and to loss of trust in law enforcement.
Evidence of such profiling was found in Austria,58
Finland, Germany, Greece, Ireland, the Netherlands,
Sweden, Spain and the United Kingdom (see below).
The practice involves treating an individual less favour‑
ably than others who are in a similar situation, for
example by exercising police powers such as stop and
search solely on the basis of a person’s skin colour,
ethnicity or religion.59
Persons with an ethnic minority background were found
to be much more likely to be stopped and searched than
155
Fundamental rights: challenges and achievements in 2013
members of the majorit y population in the
Netherlands,60 Spain61 and the United Kingdom.62
The German Institute for Human Rights called for the
elimination of racial profiling by the German federal
police and recommended that identity checks should
not be carried out on the basis of criteria such as a per‑
son’s skin colour.63
The police in Greece continued its large‑scale operation
(Xenios Zeus) to remove what it referred to as ‘illegal
immigrants’ in regions bordering Turkey and in
Athens. 64 The operation ran from August 2012 to
June 2013. It involved about 4,500 police officers and
led to the apprehension of nearly 124,000 third‑country
nationals, of whom fewer than 7,000 were found to be
in the country irregularly. The Greek Ombudsman high‑
lighted the abusive character of transferring people
who were not suspected in any way to police stations
during the operation for the purpose of identity
checks,65 as evidenced by the low percentage of those
who were actually found to be in the country
irregularly (5.6 %).66
International monitoring bodies stress the importance
of protecting the foundations of democratic system and
the rule of law, and tackling misconduct by law enforce‑
ment officials.67 The Council of Europe Commissioner
for Human Rights, following his visit to Greece, raised
concerns about ill‑treatment, including torture, com‑
mitted by law enforcement officials, notably against
migrants and Roma.68
The Greek police launched internal investigations on
law enforcement officials, resulting in arrests of police
officers, including senior officers, and others on various
charges, including illegal weapons possession, report‑
edly related to Golden Dawn.69 The special report of the
Greek Ombudsman includes 47 racist incidents in which
members of the securit y forces are alleged
to have participated.70
ECRI recommended that the authorities in Ireland,
Finland and the Netherlands should take steps to pre‑
vent ethnic profiling, whether through adopting legisla‑
tion on the issue (Ireland), ensuring that visible
minorities are not profiled (Finland) or training police
officers about it (Netherlands).71
Similar recommendations were made to Spain by the
UN Special Rapporteur on contemporary forms of
racism, racial discrimination, xenophobia and related
intolerance.72 CERD recommended that Sweden “take
measures to evaluate the effects of the application of
the Terrorism Act, including on minority communities,
and ensure the application of relevant guarantees to
prevent possible police profiling and any discrimination
in the administration of justice.”73
156
Noting that “figures show that people from a black or
ethnic minority background are up to seven times more
likely to be stopped and searched by the police than
those from white backgrounds,”74 the UK government
launched a consultation on the police’s stop and search
powers in July, to establish if they are used fairly and
appropriately.75 The consultation shows that a quarter
of people surveyed believe that stop and search
powers are used in a way that discriminates against
certain groups, with more than half of respondents
from black and minority ethnic groups believing this to
be the case.
The report recommends that the police use stop and
search powers in compliance with the relevant code of
practice and equality legislation, as well as establishing
ways of monitoring the extent to which this is the case.
In 2010, the Equality and Human Rights Commission
found that Asian people were stopped and searched
about twice as white people and black people about
six times as often.76 Five separate police forces took
action to remedy the situation, which was the subject
of a publication by the commission in May 2013.
The Equality and Human Rights Commission “concluded
that where firm action had been taken to reduce race
disproportionality, and/or overall usage of the [stop and
search] power, it had succeeded, without prejudice to
the drop of crime levels.”77 In November, the commis‑
sion published a further report, which reveals that,
while the use of stop and search by police forces in
England and Wales has decreased, black and Asian
people are still disproportionately targeted.78
6.4 Responses to
manifestations of
racism, xenophobia and
related intolerance
EU Member States can address manifestations of
racism, xenophobia and related intolerance through
policy responses, by appointing specialised authorities
or by making changes to anti‑racism strategies
and action plans.
ECRI recommended to the Netherlands and Portugal
that they should introduce provisions in their criminal
codes that would make racist motivation an aggravating
circumstance.79 Similarly, the UN Special Rapporteur on
contemporary forms of racism, racial discrimination,
xenophobia and related intolerance recommended that
Spain “ensure that racial motivations are harmonized
throughout the Penal Code in conformity with Article 1
of the ICERD, and ensure a better implementation of
the provisions relating to racial motivation as
an aggravating circumstance”.80
Racism, xenophobia and related intolerance
In November, the Greek government submitted to
­p arliament another bill seeking to transpose the
Framework Decision on Racism and Xenophobia into
national law. This was the third bill of this type set
before Greek lawmakers in 2013, each being the subject
of intense political controversy.81 The last draft provides
for increased sanctions and penalties for those who
publicly encourage or cause hate or violence against
individuals or a group of individuals on the basis of their
race, skin colour, religion, genetic origin, ethnic or
national origin and disability, posing a danger for public
order or a threat to life, freedom or physical integrity
of these persons.82 Law 4139/2013 on addictive sub‑
stances and other provisions amended the Greek
Criminal Code, which now provides that committing an
act motivated by a racist motive constitutes an aggra‑
vating circumstance, and the sentence for such a crime
cannot be suspended.83
In Germany, the State Parliament of Brandenburg
(Landtag Brandenburg) voted unanimously in November
for the integration of an anti‑racism clause into the State
Constitution. The text prohibits discrimination based on
ethnicity but also obliges the Land to protect peaceful
coexistence and to fight the dissemination of racist
and xenophobic ideas.84
Promising practice
Addressing institutional racism
In its report on Finland, ECRI recommends that
law enforcement officers, prosecutors and judges
undergo systematic training and awareness rais‑
ing on antidiscrimination legislation, racism and
tolerance. It also suggests to the authorities that
they monitor and record racist acts and hate
speech committed by the police.
The Court of Appeal of Helsinki (Helsingin hov‑
ioikeus) conducted an internal study on discrimi‑
nation and racism. It found instances of intolerant
and racist behaviour among judges and the court
staff, including racist jokes and degrading lan‑
guage used about minorities in work‑related situ‑
ations and prominent use of derogatory expres‑
sions. The study concludes that such conduct can
be considered as harassment as stipulated in the
antidiscrimination legislation.
See: Council of Europe, European Commission against Racism
and Intolerance (ECRI) (2013), ECRI report on Finland (fourth
monitoring cycle), Strasbourg, Council of Europe, available at:
www.coe.int/t/dghl/monitoring/ecri/Country-bycountry/Finland/FIN-CbC-IV-2013-019-ENG.pdf; Tuohino, T. and
Ojala, T. (2013), Yhdenvertaisuus-.ja tasa arvoselvitys,
yhteenveto, Helsinki, Helsinki Court of Appeal
A number of EU Member States undertook initiatives
to improve and enhance their institutional responses
to combat racism and related intolerance. In Spain,
a prosecutor’s office was set up in each of the
50 provinces to investigate offences with discriminatory
or racist motivations. The activities of these offices are
coordinated by a national delegate appointed by the
state’s general attorney.
The Cyprus police, in cooperation with the Office of the
Commissioner for Administration, issued a circular out‑
lining the police’s official policy in tackling racist vio‑
lence, xenophobia and discrimination.85
FRA ACTIVITY
Fighting hate crime in the
European Union
A conference on combating hate crime in the EU,
hosted by FRA in cooperation with the Presidency
of the Council of the European Union and held in
Vilnius on 12–13 November 2013, brought together
more than 400 policy makers and practitioners
from national governments, international organi‑
sations, civil society, EU institutions and bodies.
The conference objectives, apart from an ex‑
change of ideas and best practices on how to
combat hate crime, were in particular to develop
concrete proposals for a follow‑up to FRA’s opin‑
ions pertaining to hate crime and to explore effec‑
tive practical solutions for combating hate crime
at the EU and Member State levels.
The conclusions of the conference fed directly into
the Council Conclusions on combating hate crime
in the European Union issued in December.
For more information, see FRA (2013), Fundamental rights
conference: Combating hate crime in the EU – giving victims a face
and a voice, available at: http://fra.europa.eu/en/event/2013/
fundamental-rights-conference-2013
Council of the European Union (2013), Council conclusions on
combating hate crime in the European Union, available at: www.
consilium.europa.eu/uedocs/cms_Data/docs/pressdata/en/
jha/139949.pdf
The Greek police set up a direct telephone help
line (11414) for victims of racist violence in January,
together with an online form for reporting racist crime.86
By September, 214 complaints were registered through
the hotline, according to information FRA obtained
from the Ombudsperson.87
The Inter‑Ministerial Committee on the Fight against
Racism and Antisemitism in France adopted a new
programme in February. The programme aims to pre‑
vent racist violence in schools; fight racism and anti‑
semitism through education at schools, in public offices
and in sport; and enhance victim support services,
including through conducting annual victimisation sur‑
veys and strengthening the reporting and investigation
of hate crime.88
157
Fundamental rights: challenges and achievements in 2013
A coalition of parliamentary groups in Germany s­ ubmitted
a request to the government in June calling on the gov‑
ernment to step up its fight against antisemitism and
support the life of Jews in the country. One aspect would
be to establish a permanent expert group tasked with
analysing and evaluating the situation of antisemitism in
Germany and detailing measures taken to counter the
phenomenon. Remembrance also figures as a task; the
group would need to implement educational measures
for teachers as well as young people, in cooperation with
foundations, institutions and memorial places.89
The Council for the Prevention of Racial Discrimination,
Xenophobia and Related Intolerance was established
in Poland in February.90 It is responsible for monitoring
and analysing the occurrence of racist and xenophobic
incidents and promoting activities to counter racial
discrimination, xenophobia and related intolerance.
Still in Poland, the Police strategy for the development
of the system of human rights protection for the
years 2013–2015 was adopted. One of its main aims is
to enhance actions towards the prevention of hate
crimes on the grounds of national, racial or ethnic origin
and on other grounds.91
6.5
EU Member States need
better official data
collection to address
racist crime effectively
Reports published by law enforcement agencies and
criminal justice systems in EU Member States show
great fluctuation in officially recorded crime with
racist, xenophobic, anti‑Roma, antisemitic or
Islamophobic/anti‑Muslim motives in the EU
between 2011 and 2012.92
These reports show decreases in recorded racist crime
in Belgium, Cyprus, Finland, Ireland, Luxembourg and
Scotland (UK). They show increases in recorded racist
crime in Austria, Denmark, France, Germany, Greece,
Lithuania, Latvia, the Netherlands, Poland, Slovakia,
Spain and Sweden, as well as in England, Northern
Ireland and Wales (all UK).
Data on racist incidents are available for Austria,
Belgium, Finland, Germany, Greece, Hungary, Ireland,
Latvia, Lithuania, Poland, Spain, Sweden and the
United Kingdom in the Annual report on hate crime
published by the Office for Democratic Institutions and
Human Rights (ODIHR).93
The Netherlands and Sweden report a rise in recorded
anti‑Roma crime, whereas the Czech Republic reports
a decrease in such crime. The Prosecutor General’s
158
Office in Poland began collecting data on anti‑Roma
crime in 2012. ODIHR reports recorded anti‑Roma data
from the Czech Republic and Sweden.94
“The Council of the European Union invites Member States
to collect and publish comprehensive and comparable data
on hate crimes, as far as possible including the number of
such incidents reported by the public and recorded by law
enforcement authorities; the number of convictions; the
bias motives behind these crimes; and the punishments
handed down to offenders.
[...]
“The Fundamental Rights Agency [should] work together
with Member States to facilitate exchange of good
practices and assist the Member States at their request in
their effort to develop effective methods to encourage
reporting and ensure proper recording of hate crimes.”
Council of the European Union (2013), Council Conclusions on combating
hate crime in the European Union, available at: www.consilium.europa.eu/
uedocs/cms_Data/docs/pressdata/en/jha/139949.pdf
In recorded antisemitic crime, the authorities in Austria,
Belgium, Finland, France, Germany, the Netherlands
and Sweden report increases, with a decrease reported
in the Czech Republic. The Prosecutor General’s Office
(Prokuratury Generalnej) in Poland began collecting
data on antisemitic crime in 2012. ODIHR reports
recorded antisemitic data from Germany, Ireland,
Sweden and the United Kingdom.95
Whereas the authorities in Finland report a decrease in
recorded Islamophobic/anti‑Muslim crime, those in
France, the Netherlands and Sweden report increases.
The Austrian authorities reported no change in the
recorded number of crimes. The Prosecutor General’s
Office in Poland began collecting data on anti‑Muslim
crime in 2012. ODIHR provides recorded Islamophobic/
anti‑Muslim data for Austria and Sweden.96
On the basis of the data obtained by FRA, official data
collection mechanisms on crimes with racist, anti‑Roma,
antisemitic and Islamophobic/anti‑Muslim motivations
in EU Member States can be classified into three broad
categories (Table 6.1), which relate to the scope and
transparency of the data that are recorded:
•• limited data available – data collection is limited
to a few incidents, and data are, in general, not
published;
•• good data available – different bias motivations are
recorded, and data are, in general, published;
•• comprehensive data available 
– different bias
­motivations are recorded, as are characteristics of
victims and perpetrators, where criminal victimisa‑
tion has occurred, and the types of crimes that
were committed, such as murder, assault or threats,
and data are always published.
Racism, xenophobia and related intolerance
Table 6.1: Status of official data collection on racist, anti‑Roma, antisemitic and Islamophobic/anti‑Muslim
crime in EU Member States, December 2013
Limited data
Good data
Comprehensive data
Few incidents and a narrow range
of bias motivations are recorded
Data are usually not published
A range of bias motivations
are recorded
Data are generally published
A range of bias motivations, types of crimes
and characteristics of incidents are recorded
Data are always published
Bulgaria
Cyprus
Estonia
Greece
Hungary
Italy
Latvia
Luxembourg
Malta
Portugal
Romania
Slovenia
Austria
Belgium
Croatia
Czech Republic
Denmark
France
Germany
Ireland
Lithuania
Poland
Slovakia
Finland
Netherlands
Spain
Sweden
United Kingdom
Note:
Spain is underligned as its official data collection on racist and related crime became comprehensive, see first paragraph below.
Source: FRA, 2013
Data collection on racist and related crime in Spain
became comprehensive as a result of changes intro‑
duced in relation to what data are collected and training
offered to frontline police officers on how to record
racist and related crime. Data are now collected on
crimes motivated by racism, xenophobia and intoler‑
ance of another person’s religion or beliefs as well as
antisemitism. In addition, about 20,000 law enforce‑
ment officials received training in how to identify and
record such crimes in 2013.97
transposed provisions on incitement to racist and xeno‑
phobic violence and hatred, the racist and xenophobic
motivation of crimes, the liability of legal persons and
jurisdiction across the EU. The full and correct transposi‑
tion of the existing Framework Decision will constitute
a first step towards effectively fighting racism and
xenophobia by means of criminal law in a coherent
manner across the EU. Bilateral dialogue between the
European Commission and Member States will play
a key role in this process.
Outlook
The collection of reliable, comparable and ­comprehensive
data on racist and related crime would contribute to the
Framework Decision’s effective implementation. Public
authorities in Member States will be increasingly called
on to collect and publish data on such crime, including
details of prosecutions and the sentences handed down.
Public authorities in Member States will also look to find
ways to provide more effective remedies to combat
racist abuse perpetrated online or through
social media platforms.
The Stockholm Programme, which aims to deliver on
an area of freedom, security and justice for Europe’s
citizens, draws to a close in 2014. EU institutions and
Member States are expected to follow up the Stockholm
programme, in particular concerning the fight against
all forms of racism, xenophobia and related intolerance
within the EU.
The publication of the European Commission’s report
on the implementation of the Framework Decision on
Racism and Xenophobia in 2014 will provide important
information about how EU Member States have
159
Fundamental rights: challenges and achievements in 2013
Index of Member State references
EU Member State
Page
AT���������������������������������������������������������������������� 146, 159, 153, 155, 158, 159
BE����������������������������������������������������������������������������� 151, 155, 158, 159
BG����������������������������������������������������������������������������� 152, 153, 154, 159
CY������������������������������������������������������������������������� 146, 155, 157, 158, 159
CZ���������������������������������������������������������������������������������� 152, 158, 159
DE����������������������������������������������������������� 146, 151, 153, 154, 155, 156, 157, 158, 159
DK������������������������������������������������������������������������������������ 158, 159
EE������������������������������������������������������������������������������������� 146, 159
EL���������������������������������������������������������������� 146, 151, 152, 153, 155, 156, 158, 159
ES����������������������������������������������������������������������� 146, 155, 156, 157, 158, 159
FI������������������������������������������������������������������� 146, 153, 155, 156, 157, 158, 159
FR������������������������������������������������������������ 146, 150, 151, 152, 153, 155, 157, 158, 159
HR���������������������������������������������������������������������������������������� 159
HU������������������������������������������������������������������ 146, 151, 152, 153, 154, 158, 159
IE���������������������������������������������������������������������� 146, 153, 155, 156, 158, 159
IT������������������������������������������������������������������� 146, 150, 151, 152, 154, 155, 159
LT������������������������������������������������������������������������������ 146, 150, 158, 159
LU������������������������������������������������������������������������������������� 158, 159
LV������������������������������������������������������������������������������ 151, 155, 158, 159
MT������������������������������������������������������������������������������������ 146, 159
NL������������������������������������������������������������������ 146, 152, 153, 155, 156, 158, 159
PL��������������������������������������������������������������������������������� 146, 158, 159
PT��������������������������������������������������������������������������������� 146, 156, 159
RO���������������������������������������������������������������������������������������� 159
SE��������������������������������������������������������������� 146, 151, 153, 154, 155, 156, 158, 159
SI����������������������������������������������������������������������������������������� 159
SK������������������������������������������������������������������������������ 146, 153, 158, 159
UK���������������������������������������������������������������������� 146, 151, 155, 156, 158, 159
160
Racism, xenophobia and related intolerance
Endnotes
All hyperlinks accessed on 30 April 2014.
1
European Parliament (2013), Resolution on strengthening
the fight against racism, xenophobia and hate
crime 2013/2543(RSP), Brussels, 14 March 2013, www.
europarl.europa.eu/sides/getDoc.do?type=TA&reference=P7TA-2013-0090&language=EN&ring=B7-2013-0121.
2
Council of the European Union (2013), Council conclusions on
fundamental rights and rule of law and on the
Commission 2012, Report on the Application of the Charter
of Fundamental Rights of the European Union, Justice and
Home Affairs Council meeting, Luxembourg, 6-7 June 2013,
p. 4, www.consilium.europa.eu/uedocs/cms_data/docs/
pressdata/en/jha/137404.pdf.
3
European Court of Human Rights (ECtHR) (2013), Hate
speech, factsheet, Strasbourg, July 2013, www.echr.coe.int/
Documents/FS_Hate_speech_ENG.pdf.
4
United Nations (UN), Committee on the Elimination of Racial
Discrimination (CERD) (2013), Combating racist hate
speech, CERD/C/GC/35, 29 September 2013, http://tbinternet.
ohchr.org/_layouts/treatybodyexternal/Download.aspx?sym
bolno=CERD%2fC%2fGC%2f35&Lang=en.
5
Rome Declaration (2013), ­w ww.milquet.belgium.be/sites/
default/files/23092013%20De%CC%81claration%20de%20
Rome.pdf.
6
See FRA (European Union Agency for Fundamental Rights)
(2013), Fundamental Rights Conference, Combating hate
crime in the EU: Giving victims a face and a voice, Vilnius,
12–13 November 2013, http://fra.europa.eu/en/event/2013/
fundamental-rights-conference-2013.
7
Cecilia Malmström (2013), Combating hate crime in the EU,
http://europa.eu/rapid/press-release_SPEECH-13909_en.htm.
8
Council of the European Union (2013), Council conclusions on
combating hate crime in the European Union, Justice and
Home Affairs Council meeting, Brussels, 5–6 December 2013,
www.consilium.europa.eu/uedocs/cms_Data/docs/
pressdata/en/jha/139949.pdf.
9
FRA (2013), Thematic situation report: Racism,
discrimination, intolerance and extremism. Learning from
experiences in Greece and Hungary, Luxembourg,
Publications Office of the European Union (Publications
Office), http://fra.europa.eu/sites/default/files/fra-2013thematic-situation-report-3_en_1.pdf.
10 Council of Europe, Commissioner for Human Rights (2013),
Safeguarding human rights in times of economic crises,
CommDH/IssuePaper(2013)2, Strasbourg, Council of Europe,
https://wcd.coe.int/ViewDoc.jsp?id=2130915.
11 United Nations (UN), CERD (2013), Concluding observations
on the seventeenth to twenty‑second periodic reports of
Cyprus, adopted by the Committee at its eighty‑third
session (12-30 August 2013), CERD/C/CYP/CO 17-22, p. 5,
23 September 2013, http://tbinternet.ohchr.org/_layouts/
treatybodyexternal/Download.aspx?symbolno=CERD%2fC
%2fCYP%2fCO%2f17-22&Lang=en.
12 FRA (2013), Discrimination and hate crime against Jews in
EU Member States: Experiences and perceptions of
antisemitism, Luxembourg, Publications Office, http://fra.
europa.eu/sites/default/files/fra-2013-discriminationhate-crime-against-jews-eu-memberstates_en.pdf.
13 The programme of the Nationalist Party of Bulgaria is
available at: www.dnevnik.bg/getatt.php?filename=
o_2133887.pdf.
14 Bulgaria, 24 Chasa Newspaper (2013), ‘Боян Расате:
Получихме разрешение от СДВР да организираме
граждански патрули’, www.24chasa.bg/Article.asp?
ArticleId=2445484.
15 Bulgaria, Национален център за развитие на ромите
в България (2013), Ромски командоси създават
организация за отбрана от насилие, 20 November 2013,
http://romacenter.blog.bg/novini/2013/11/20/
romski-komandosi-syzdavat-organizaciia-za-otbrana-otnasilie.1208989.
16 Magyar Hajna (2013), A Magyar Hajnal rövid programja,
http://magyarhajnal.com/a-magyar-hajnal-rovid-program.
17 Tulkens, F. (2013), The hate factor in political speech: Where
do responsibilities lie?, Report of the Council of Europe
Conference, www.coe.int/t/dghl/standardsetting/media/
belgrade2013/MCM(2013)002_en_Report_F%20Tulken.pdf.
18 Council of Europe, European Commission against Racism
and Intolerance (ECRI) (2013), ECRI report on Finland (fourth
monitoring cycle), Strasbourg, Council of Europe, 9 July 2013,
www.coe.int/t/dghl/monitoring/ecri/Country-by-country/
Finland/FIN-CbC-IV-2013-019-ENG.pdf;http://www.coe.
int/t/dghl/monitoring/ecri/Country-by-country/Finland/
FIN-CbC-IV-2013-019-ENG.pdf Council of Europe, ECRI (2013),
ECRI report on Malta (fourth monitoring cycle), Strasbourg,
Council of Europe, 15 October 2013, www.coe.int/t/dghl/
monitoring/ecri/Country-by-country/Malta/MLT-CbC-IV2013-037-ENG.pdf.
19 UN, CERD (2013), Concluding observations on the ninth to
the tenth periodic reports of Slovakia, adopted by the
Committee at its eighty‑second session
(11 February–1 March 2013), CERD/C/SVK/CO/9-10,
17 April 2013, http://daccess-dds-ny.un.org/doc/UNDOC/
GEN/G13/427/96/PDF/G1342796.pdf?OpenElement; UN,
CERD (2013), Concluding observations on the seventeenth to
twenty‑second periodic reports of Cyprus, adopted by the
Committee at its eighty‑third session (12–30 August 2013),
CERD/C/CYP/CO 17-22, 23 September 2013, http://tbinternet.
ohchr.org/_layouts/treatybodyexternal/Download.aspx?sy
mbolno=CERD%2fC%2fCYP%2fCO%2f17-22&Lang=en.
20 ECtHR, Vona v. Hungary, application No. 35943/10, 2013,
­http://hudoc.echr.coe.int/sites/eng/pages/search.
aspx?i=001-122183.
21 European Parliament (2013), Request for the waiver of the
parliamentary immunity of Marine Le Pen, P7_
TA(2013)0292, Strasbourg, 2 July 2013, www.europarl.
europa.eu/sides/getDoc.do?type=TA&reference=P7-TA2013-0292&format=XML&language=EN.
22 Greece, Ελληνική Αστυνομία (2013), Notice of Greek Police
Headquarters about the items found during the current
investigations of Counterterrorism Office in houses of three
MPs of the political party ‘Golden Dawn’, 5 December 2013,
www.astynomia.gr/index.php?option=ozo_content&lang=’..
’&perform=view&id=35075&Itemid=1220&lang=.
23 Greece, Ministry of Interior (2013), Joint Ministerial Decision,
No. 51776, Αναστολή κάθε είδους κρατικής
χρηματοδότησης στο Πολιτικό Κόμμα «ΛΑΪΚΟΣ
ΣΥΝΔΕΣΜΟΣ – ΧΡΥΣΗ ΑΥΓΗ» (OG B 3275/23.12.2013),
http://static.diavgeia.gov.gr/doc/ΒΛΓΥΝ-ΜΞΚ.
24 Germany, Bundesrat (2013), ‘Bundesrat reicht
NPD‑Verbotsantrag beim Bundesverfassungsgericht ein’,
Press release, 4 December 2013, www.bundesrat.de/
cln_330/nn_8396/DE/presse/pm/2013/253-2013.html.
25 Philipp, S. and Starl, K. (2013), Living conditions of black
people in Austrian urban areas in the fields of justice,
health, work and public space, Graz, www.etc-graz.at.
26 Bulgaria, Агенция „Алфа Рисръч“ (2013), Обществени
нагласи – септември 2013 г., http://alpharesearch.bg/
userfiles/file/1013-Public%20Opinion-Alpha%20
Research.pdf.
161
Fundamental rights: challenges and achievements in 2013
27 Finland, Ihmisoikeuskeskus, Human Rights Centre annual
report 2012, http://ihmisoikeuskeskus-fi-bin.directo.fi/@
Bin/b50582aed37e1d3c255f6dbfbf177ff6/1390910327/
application/pdf/206665/IOK_toimintakertomus_
ENG_N%C3%84YTT%C3%96.pdf.
28 UN, CERD, CERD/C/82/D/48/2010, 3 April 2013, ­w ww2.ohchr.
org/English/bodies/cerd/docs/CERD-C-82-D-48-2010English.pdf.
29 FRA (2013), Thematic situation report: Racism,
discrimination, intolerance and extremism. Learning from
experiences in Greece and Hungary, Luxembourg,
Publications Office, http://fra.europa.eu/sites/default/files/
fra-2013-thematic-situation-report-3_en_1.pdf.
30 Ibid.
31 European Network Against Racism Ireland (ENAR
Ireland) (2013), Reports of racism in Ireland, http://
enarireland.org/wp-content/uploads/2013/12/iReport_
QR_2013_3mb.pdf.
32 UN, Office of the High Commissioner for Human
Rights (2013), Letter of the Chair‑Rapporteur of the Working
Group on people of African descent, the Special Rapporteur
in the field of cultural rights, the Independent Expert on
minority issues, and the Special Rapporteur on
contemporary forms of racism, racial discrimination,
xenophobia and related intolerance, 17 January 2013,
https://spdb.ohchr.org/hrdb/23rd/public_-_AL_
Netherlands_17.01.13_(1.2013).pdf; Netherlands (2013),
Letter of the Dutch government, www.scribd.com/doc/
177304035/Het-Nederlandse-antwoord-op-de-VN-brief;
Netherlands, Burgemeester van Amsterdam (2013),
Uitspraak bezwaarschriftencommissie intocht Sinterklaas,
30 October 2013; UN, Office of the High Commissioner for
Human Rights (2013), Black Pete & Sinterklaas: UN experts
encourage respectful national debate on Dutch tradition,
web page, 21 November 2013, www.ohchr.org/EN/
NewsEvents/Pages/DisplayNews.aspx?NewsID=14013
&LangID=E.
33 Slovakia, Generálna prokuratúra SR (2013), Správa o činnosti
Generálnej prokuratúry SR za rok 2012, p. 54.
34 Sweden, Brottsförebyggande rådet (2013), Hatbrott 2012:
statistik över polisanmälningar med identifierade
hatbrottsmotiv, www.bra.se/download/18.6b82726313f7b2
34a5839/1372231125966/2013_16_Hatbrott_2012.pdf.
35 See also European Network Against Racism (2013), Racism
in Europe: ENAR shadow report 2011–2012, http://cms.horus.
be/files/99935/MediaArchive/publications/shadow%20
report%202011-12/shadowReport_EN_LR%20(3).pdf.
36 Bulgaria, Агенция „Алфа Рисръч“ (2013), Обществени
нагласи – септември 2013 г., http://alpharesearch.bg/
userfiles/file/1013-Public%20Opinion-Alpha%20Research.
pdf; Bulgaria, Dnes.bg (2013), „Роми и пенсионери: За
бежанците пари има, за нас – не!“, 18 December 2013,
www.dnes.bg/obshtestvo/2013/12/18/romi-i-pensioneriza-bejancite-pari-ima-za-nas-ne.209975; Bulgaria, Group of
the Progressive Alliance of Socialists & Democrats in the
European Parliament (2013), „Бежанската вълна –
нараства ли ксенофобията? Може ли ЕС да помогне за
намаляването на напрежението? – Доклад, www.
mediana.bg/download-analysis/Report_refugees.doc.
40 Hungary, Tárki (2013), Szolid átrendeződés a lakosság
idegenekkel szembeni véleményében, www.tarki.hu/hu/
news/2013/kitekint/20130205_idegenellenesseg.html.
41 International Convention on the Elimination of All Forms of
Racial Discrimination (ICERD), CERD/C/82/D/48/2010,
4 April 2013, http://www2.ohchr.org/English/bodies/cerd/
docs/CERD-C-82-D-48-2010-English.pdf.
42 Germany, Bundestag (2013), ‘Entscheidung des
UN‑Antirassismus Ausschusses im Fall Thilo Sarazzin’,
BT‑Drs. 18/60, 18 November 2013, p. 4, http://dip21.
bundestag.de/dip21/btd/18/000/1800060.pdf.
43 Office for the High Commissioner for Human Rights,
Universal Periodic Review second cycle: Germany, www.
ohchr.org/EN/HRBodies/UPR/Pages/DESession16.aspx.
44 Germany, Bundesregierung (2013), The Federal Republic of
Germany’s response to the recommendations set out by the
UN Human Rights Council in the Universal Periodic Review
on 25 April 2013, www.institut-fuer-menschenrechte.de/
aktuell/news/meldung/article/antwort-derbundesregierung-auf-die-empfehlungen-aus-der-uprueberpruefung-liegt-vor.html.
45 FRA (2013), Discrimination and hate crime against Jews in
EU Member States: Experiences and perceptions of
antisemitism, Luxembourg, Publications Office, http://fra.
europa.eu/sites/default/files/fra-2013-discrimination-hatecrime-against-jews-eu-memberstates_en.pdf; FRA (2013),
EU LGBT survey European Union lesbian, gay, bisexual and
transgender survey: Results at a glance, Luxembourg,
Publications Office, http://fra.europa.eu/sites/default/files/
eu-lgbt-survey-results-at-a-glance_en.pdf. More on the
FRA survey on gender‑based violence is available at: http://
fra.europa.eu/en/project/2012/fra-survey-gender-based-violenceagainst-women.
46 Europol (2013), TE SAT 2013: EU terrorism situation and trend
report, www.europol.europa.eu/sites/default/files/
publications/europol_te-sat2013_lr_0.pdf; see also
Jugenschutz.net (2013), Rechtsextremismus online
beobachten und nachhaltig bekämpfen, Mainz, www.netzgegen-nazis.de/files/bericht2012.pdf.
47 Italy, Corte Suprema di Cassazione, judgment of
24 April 2013, No. 33179, www.asgi.it/public/parser_
download/save/cassaz_33179_2013.pdf.
48 Italy, Tribunale di Padova, judgment of 17 July 2013, no. 1615.
49 France, Tribunal de grande instance de Paris, 24 January 2013,
www.legalis.net/spip.php?page=jurisprudence-decision&id_
article=3594.
37 Bulgaria, Съвет за електронни медии (2013), Declaration,
5 November 2013, www.cem.bg/download.php?id=4908.
50 Latvia, Rīgas pilsētas Ziemeļu rajona tiesa),
No. 11840000612/K32-0202-13/6, 3 January 2013.
38 UN, High Commissioner for Refugees (UNHCR), UNHCR
launches emergency operation to improve conditions for
refugees and asylum seekers in Bulgaria, 6 December 2013,
www.unhcr.org/52a1bad09.html.
51 Belgium, Minister of Justice, Minister of Internal Affairs and
the College of Prosecutors General (2013), Omzendbrief
betreffende het opsporings- en vervolgingsbeleid inzake
discriminatie en haatmisdrijven (met inbegrip van
discriminaties op grond van het geslacht)/Circulaire relative
a la politique de recherche et de poursuite en matière de
discriminations et de délits de haine (en ce compris les
discriminations fondées sur le sexe), 17 June 2013,
www.om-mp.be/omzendbrief/5198967/omzendbrief.html.
39 Hungary (2008–2012), Eurostat, Asylum and new asylum
applicants by citizenship, age and sex annual aggregated
data, http://appsso.eurostat.ec.europa.eu/nui/show.
do?dataset=migr_asyappctza&lang=en; Hungarian Helsinki
Committee (2013), Brief information note on the main
162
asylum‑related legal changes in Hungary as of 1 July 2013,
p. 3, http://helsinki.hu/wp-content/uploads/HHC-updatehungary-asylum-1-July-2013.pdf; FRA (2013), Thematic
situation report: Racism, discrimination, intolerance and
extremism. Learning from experiences in Greece and
Hungary, Luxembourg, Publications Office, http://fra.
europa.eu/sites/default/files/fra-2013-thematic-situationreport-3_en_1.pdf.
Racism, xenophobia and related intolerance
52 United Kingdom, Crown Prosecution Service (CPS) (2013),
Guidelines on prosecuting cases involving communications
sent via social media, www.cps.gov.uk/legal/a_to_c/
communications_sent_via_social_media/.
65 Greece, Συνήγορος του Πολίτη (2013), Special report: The
phenomenon of racist violence in Greece and how to it is
combated, September 2013, www.synigoros.gr/resources/
docs/sronracistviolencesummary2013.pdf.
53 Belgium, Minister of Justice, Minister of Internal Affairs and
the College of Prosecutors General (2013), Omzendbrief
betreffende het opsporings- en vervolgingsbeleid inzake
discriminatie en haatmisdrijven (met inbegrip van
discriminaties op grond van het geslacht)/Circulaire relative
a la politique de recherche et de poursuite en matière de
discriminations et de délits de haine (en ce compris les
discriminations fondées sur le sexe), 17 June 2013, www.
om-mp.be/omzendbrief/5198967/omzendbrief.html.
66 FRA (2013), Thematic situation report: Racism,
discrimination, intolerance and extremism. Learning from
experiences in Greece and Hungary, http://fra.europa.eu/
sites/default/files/fra-2013-thematic-situation-report-3_
en_1.pdf.
54 Cyprus (2013), Αυτεπάγγελτη Παρέμβαση της Αρχής Κατά
των Διακρίσεων Αναφορικά με την Ανταπόκριση των
Σχολείων σε Ρατσιστικά Περιστατικά, 11 March 2013,
report and data provided by the Cypriot Office of the
Commissioner for Administration.
55 Council of Europe, ECRI (2013), ECRI report on Finland (fourth
monitoring cycle), Strasbourg, Council of Europe, 9 July 2013,
www.coe.int/t/dghl/monitoring/ecri/Country-by-country/
Finland/FIN-CbC-IV-2013-019-ENG.pdf.
56 United Kingdom, ChildLine (2013), Can I tell you something?,
www.nspcc.org.uk/news-and-views/media-centre/pressreleases/2014/childline-report/childline-report_can-i-tellyou-something_wdf100354.pdf.
57 Organization for Security and Co‑operation in Europe,
Parliamentary Assembly (2013), Istanbul declaration,
Istanbul, 29 June to 3 July 2013, www.oscepa.org/meetings/
annual-sessions/1375-ist-dec#.
58 Philipp, S. and Starl, K. (2013), Living conditions of black
people in Austrian urban areas in the fields of justice,
health, work and public space, Graz, www.etc-graz.at.
59 FRA (2010), Towards more effective policing. Understanding
and preventing discriminatory ethnic profiling: A guide,
Luxembourg, Publications Office, http://fra.europa.eu/sites/
default/files/fra_uploads/1133-Guide-ethnic-profiling_
EN.pdf.http://fra.europa.eu/sites/default/files/
fra_uploads/1133-Guide-ethnic-profiling_EN.pdf
60 Netherlands, Amnesty International (2013), Proactief
politieoptreden vormt risico voor mensenrechten: Etnisch
profilieren onderkennen en aanpakken, Amsterdam,
Amnesty International, www.amnesty.nl/sites/default/
files/public/rapport_etnisch_profileren_ainl_28_okt_2013.
pdf.
61 Bradford, B., García Añon, J., García Sáez J. A., Gascón
Cuenca, A. and Llorente Ferrerez, A. (2013), Identificación
policial por perfil étnico en España: Informe sobre
experiencias y actitudes en relación con las actuaciones
policiales, Valencia, Universitat de València, Institut de Drets
Humans; Tirant lo Blanch, www.uv.es/garciaj/pub/2013_
perfil_etnico.pdf; Metroscopia (2013), Encuesta sobre
experiencias y actitudes en relación con las actuaciones
policiales.
62 UN, CERD, 82nd session, 11 February–1 March 2013, Report
submitted by the EHRC in response to CERD/C/GBR/CO/1820/Add.1, http://daccess-dds-ny.un.org/doc/UNDOC/GEN/
G13/403/56/PDF/G1340356.pdf?OpenElement.
63 Cremer, H. (2013), ‘Racial Profiling’: Menschenrechtswidrige
Personenkontrollen nach § 22 Abs. 1 a Bundespolizeigesetz,
Berlin, Deutsches Institut für Menschenrechte, p. 31, www.
institut-fuer-menschenrechte.de/uploads/tx_commerce/
Studie_Racial_Profiling_Menschenrechtswidrige_
Personenkontrollen_nach_Bundespolizeigesetz.pdf.
64 Greece, Police Headquarters (2012), ‘Police Operation
“XENIOS ZEUS” in Athens and Evros to tackle illegal
immigration’, statement of the spokesman of the Greek
Police, press release, 4 August 2012, www.astynomia.gr/
index.php?option=ozo_content&perform=view&id=34&Ite
mid=13&lang=.
67 Council of Europe, Commissioner for Human Rights (2013),
Report by the Council of Europe Commissioner for Human
Rights following his visit to Greece, 28 January to
1 February 2013, Comm DH(2013), 16 April 2013, https://wcd.
coe.int/ViewDoc.jsp?id=2053611; Council of Europe, ECRI
(2103), Annual report on ECRI activities, www.coe.int/t/
dghl/monitoring/ecri/activities/Annual_Reports/
Annual%20report%202012.pdf; United States Department
of State (2013), Country reports on human rights practices
on Greece 2012, www.state.gov/documents/
organization/204503.pdf.
68 Council of Europe, Commissioner for Human Rights, Report
by the Council of Europe Commissioner for Human Rights
following his visit to Greece, 28 January to 1 February 2013,
Comm DH(2013), 16 April 2013, https://wcd.coe.int/
ViewDoc.jsp?id=2053611.
69 Greece, Ministry of Public Order and Citizen Protection,
Hellenic Police, 1 October 2013, www.astynomia.gr/index.
php?option=ozo_content&lang=’..’&perform=view&id=3256
9&Itemid=1179&lang=; Greece, Ministry of Public Order and
Citizen Protection, Hellenic Police, 4 October 2013, www.
astynomia.gr/index.php?option=ozo_content&lang=’..’&per
form=view&id=32725&Itemid=1179&lang=.
70 Greece, Συνήγορος του Πολίτη (2013), Ειδική Έκθεση,
­w ww.synigoros.gr/resources/docs/
sronracistviolencesummary2013.pdf.
71 Council of Europe, ECRI (2013), ECRI report on Ireland (fourth
monitoring cycle), Strasbourg, Council of Europe,
19 February 2013, www.coe.int/t/dghl/monitoring/ecri/
Country-by-country/Ireland/IRL-CbC-IV-2013-001-ENG.pdf;
Council of Europe, ECRI (2013), ECRI report on Finland (fourth
monitoring cycle), Strasbourg, Council of Europe, 9 July 2013,
www.coe.int/t/dghl/monitoring/ecri/Country-by-country/
Finland/FIN-CbC-IV-2013-019-ENG.pdf; Council of Europe,
ECRI (2013), ECRI report on Netherlands (fourth monitoring
cycle), Strasbourg, Council of Europe, 15 October 2013,
www.coe.int/t/dghl/monitoring/ecri/Country-by-country/
Netherlands/NLD-CbC-IV-2013-039-ENG.pdf.
72 UN, Human Rights Council (2013), Report of the Special
Rapporteur on contemporary forms of racism, racial
discrimination, xenophobia and related intolerance,
6 June 2013.
73 UN, CERD (2013), Concluding observations on the combined
nineteenth to twenty‑first periodic reports of Sweden,
adopted by the Committee at its eighty‑third session
(12–30 August 2013), CERD/C/SWE/CO 19-21,
23 September 2013, http://tbinternet.ohchr.org/_layouts/
treatybodyexternal/Download.aspx?symbolno=CERD%2fC
%2fSWE%2fCO%2f19-21&Lang=en.
74 United Kingdom, Home Office (2013), A consultation on how
police use stop and search powers has been launched today
(2 July) by Home Secretary Theresa May, www.gov.uk/
government/news/home-secretary-launches-consultationinto-stop-and-search.
75 United Kingdom, Her Majesty’s Inspectorate of
Constabulary (2013), Stop and search powers: Are the police
using them effectively and fairly?, www.hmic.gov.uk/
media/stop-and-search-powers-20130709.pdf.
163
Fundamental rights: challenges and achievements in 2013
76 United Kingdom, Equality and Human Rights
Commission (2012), Race disproportionality in stops and
searches under Section 60 of the Criminal Justice and Public
Order Act 1994, Briefing paper 5, www.equalityhumanrights.
com/uploaded_files/ehrc_-_briefing_paper_no.5_-_s60_
stop_and_search.pdf.
88 France, Premier ministre (2013), Comité interministériel de
lutte contre le racisme et l’antisémitisme, Infosheet, www.
interieur.gouv.fr/Le-ministere/Organisation/DelegueInterministeriel-a-la-Lutte-contre-le-Racisme-et-lAntisemitisme/Comite-interministeriel-de-luttecontre-le-racisme-et-l-antisemitisme.
77 United Kingdom, Equality and Human Rights
Commission (2013), Stop and think again: Towards race
equality in police PACE stop and search, May 2013, p. 7,
www.equalityhumanrights.com/uploaded_files/
raceinbritain/stop_and_think_again.pdf.
89 Germany, Bundestag (2013) ‘Antisemitismus entschlossen
bekämpfen, jüdisches Leben in Deutschland nachhaltig
fördern’, BT‑Drs. 17/13885, 11 June 2013, p. 3, http://dip21.
bundestag.de/dip21/btd/17/138/1713885.pdf.
78 United Kingdom, Equality and Human Rights
Commission (2013), New research shows slow improvement
in police use of stop and search, November 2013, www.
equalityhumanrights.com/news/2013/november/newresearch-shows-slow-improvement-in-police-use-of-stopand-search/; Equality and Human Rights Commission (2013),
Race disproportionality in stops and searches, 2011–2012,
November 2013, www.equalityhumanrights.com/uploaded_
files/research/Briefing_papers/briefing_paper_7_final.pdf.
79 Council of Europe, ECRI (2013), ECRI report on Netherlands
(fourth monitoring cycle), Strasbourg, Council of Europe,
15 October 2013, www.coe.int/t/dghl/monitoring/ecri/
Country-by-country/Netherlands/NLD-CbC-IV-2013-039ENG.pdf; Council of Europe, ECRI (2013), ECRI report on
Portugal (fourth monitoring cycle), Strasbourg, Council of
Europe, 9 July 2013, www.coe.int/t/dghl/monitoring/ecri/
Country-by-country/Portugal/PRT-CbC-IV-2013-020-ENG.pdf.
80 UN, Human Rights Council (2013), Report of the Special
Rapporteur on contemporary forms of racism, racial
discrimination, xenophobia and related intolerance,
6 June 2013, www.ohchr.org/Documents/HRBodies/
HRCouncil/RegularSession/Session23/A-HRC-23-56Add-2_en.pdf.
81 FRA (2013), Thematic situation report: Racism,
discrimination, intolerance and extremism. Learning from
experiences in Greece and Hungary, Luxembourg,
Publications Office, http://fra.europa.eu/sites/default/files/
fra-2013-thematic-situation-report-3_en_1.pdf.
82 Greece, Βουλή των Ελλήνων (2013), Τροποποίηση του
ν. 927/1979 (Α΄139) και προσαρμογή του στην απόφαση
πλαίσιο 2008/913/ΔΕ της 28ης Νοεμβρίου 2008, για την
καταπολέμηση ορισμένων μορφών και εκδηλώσεων
ρατσισμού και ξενοφοβίας μέσω του ποινικού δικαίου
(L 328), 20 Νοvember 2013, www.hellenicparliament.gr/
Nomothetiko-Ergo/Epexergasia-stis-Epitropes?
law_id=1fddd6cf-874b-4b4a-b01d-05f37f9c598d.
83 Greece, Βουλή των Ελλήνων (2013), Νόμος περί
εξαρτησιογόνων ουσιών και άλλες διατάξεις
(OG A 74/20.3.2013), amended Art. 79, para. 3 of the
Criminal Code, www.et.gr/index.php/2013-01-28-14-06-23/
2013-01-29-08-13-13.
84 Germany, Landtag Brandenburg (2013), ‘Landtag
Brandenburg beschließt Antirassismus Klausel in der
Landesverfassung’, press release, 22 November 2013,
www.landtag.brandenburg.de/de/aktuelles/landtag_
brandenburg_beschlieszt_antirassismus-klausel_in_der_
landesverfassung/629581?_referer=397203.
85 Cyprus Police (2013), Πολιτική για την Αντιμετώπιση και
Καταπολέμηση της Ρατσιστικής Βίας, της Ξενοφοβίας και
των Διακρίσεων, 7 August 2013. Data derive from the Office
of the Commissioner for Administration and from the police.
86 Greece, Ελληνική Αστυνομία (2013), ­w ww.astynomia.gr/
index.php?option=ozo_content&&perform=view&id=23698
&Itemid=0&lang=.
87 FRA (2013), Thematic situation report: Racism,
discrimination, intolerance and extremism. Learning from
experiences in Greece and Hungary, Luxembourg,
Publications Office, http://fra.europa.eu/sites/default/files/
fra-2013-thematic-situation-report-3_en_1.pdf.
164
90 Poland, Zarządzenie nr 6 Prezesa Rady Ministrów,
13 February 2013.
91 Poland, Komenda Główna Policji, Kierunkowa strategia
policji w zakresie systemowej ochrony praw człowieka,
www.policja.pl/pol/prawa-czlowieka/aktualnosci/
83431,Kierunkowa-streategia-Policji-w-zakresiesystemowej-ochrony-praw-czlowieka-na-la.html.
92 Austria, Bundesministerium für Inneres, Bundesamt für
Verfassungsschutz und Terrorismusbekämpfung (2013),
Verfassungsschutzbericht 2013, www.bmi.gv.at/cms/BMI_
Verfassungsschutz/Verfassungsschutzbericht_2013.pdf;
Belgium, Federal Police (2013), Statistiques policières de
criminalité, Belgique: 2000–2013/Politiële
criminaliteitsstatistieken, België: 2000–2012, www.polfedfedpol.be/crim/crim_statistieken/2013_trim2/pdf/
nationaal/rapport_2013_trim2_nat_belgique_fr.pdf;
Croatia, Ministarstvo unutarnjih poslova (2013), Pregled
temeljnih sigurnosnih pokazatelja i rezultata rada u 2012.
godini, www.mup.hr/UserDocsImages/statistika/2013/
statistika2012.pdf; Czech Republic, Ministry of Interior,
Security Policy Department, Annual report: Zpráva
o problematice extremismu na území České republiky
v roce 2012, www.mvcr.cz/clanek/extremismus-vyrocnizpravy-o-extremismu-a-strategie-boje-proti-extremismu.
aspx; Cyprus, Cyprus Police, Archived statistical data,
incidents and/or cases of racial nature and/or with racial
motive 2005–2012, www.police.gov.cy/police/police.nsf/All/
951F52E21604E9DFC2257BD00017AF04?OpenDocument;
Denmark, Politiets Efterretningstjeneste (2013), Kriminelle
forhold I 2012 med mulig ekstremistisk baggrund, www.pet.
dk/Nyheder/2013/~/media/Forebyggende%20sikkerhed/
RACI-rapporter/2012RACIrapportendeligversionpdf.ashx;
Finland, Poliisiammattikorkeakoulu (2013), Poliisin tietoon
tullut viharikollisuus Suomessa 2012, www.polamk.fi/poliisi/
poliisioppilaitos/home.nsf/files/9CE3DF593F0561CDC2257C1
4002DF16B/$file/Katsauksia2_web.pdf; France, Ministère
de l’Intérieur, Annual report of the National Consultative
Commission on Human Rights 2012: La lutte contre le
racisme, l’antisémitisme et la xénophobie, www.cncdh.fr/
sites/default/files/cncdh_racisme_02_basse_def.pdf;
Germany, Bundesministerium des Innern (2013),
Verfassungsschutzbericht 2012, www.verfassungsschutz.
de/embed/vsbericht-2012.pdf; UNHCR, Racist Violence
Recording Network (2013), Annual report, www.unhcr.
gr/1againstracism/11940/?doing_wp_cron=1379691703.167
6959991455078125000; Ireland, Office for the Promotion of
Migrant Integration (2013), Reported racist crime, www.
integration.ie/website/omi/omiwebv6.nsf/page/statisticsRacistIncidentsstatisticscrime-en; Lithuania, Ministry of the
Interior (2013), Informatikos ir ryšių departamentas prie
Lietuvos Respublikos teisingumo ministerijos (2013),
Nusikalstamumo ir ikiteisminių tyrimų statistika, www.ird.
lt/infusions/report_manager/reports/html_file.php?metai=
2012&menuo=12&ff=1G_EN&fnr=6&rt=1&oldYear=2012;
Luxembourg, Police Grand‑Ducale (2013), Rapport
d’activité 2012 de la Police Grand‑Ducale, www.police.
public.lu/actualites/statistique/rapport_stat_2012/rapportstatistique-2012.pdf; Netherlands, Tierolf, B., Hermens, N.,
Drost, L. and Van der Vos, L. (2013), POLDIS rapportage 2012,
met themarapportage antisemitisme, Utrecht,
Verwey‑Jonker Instituut, www.verwey-jonker.nl/doc/
vitaliteit/Poldis_rapportage_2012_7371_web.pdf; Poland,
Prokuratura Generalna (2013), Sprawozdania i statystyka,
www.pg.gov.pl/sprawozdania-i-statystyki/
sprawy-z-pobudek-rasistowskich-lub-ksenofobicznych-w-
Racism, xenophobia and related intolerance
2012-r--2-627.html; Slovakia, Ministerstvo vnútra (2013),
Štatistika kriminality v Slovenskej republike, www.minv.
sk/?statistika-kriminality-v-slovenskej-republike-zarok-2012; Spain, Ministerio del Interior (2013), Anuario
Estadístico del Ministerio del Interior 2012, www.interior.
gob.es/file/63/63661/63661.pdf; Sweden,
Brottsförebyggande rådet (2013), Hatbrott 2012: Statistik
över polisanmälningar med identifierade hatbrottsmotiv,
www.bra.se/download/18.6b82726313f7b234a5839/
1372231125966/2013_16_Hatbrott_2012.pdf;
United Kingdom, Office for National Statistics, Ministry of
Justice and Home office, An overview of hate crime in
England and Wales, www.report-it.org.uk/files/ons_hatecrime-report_2013.pdf; United Kingdom, Scottish
Government (2013), Statistical bulletin: Crime and justice
series: racist incidents recorded by the police in
Scotland 2012–13, www.scotland.gov.uk/Resource/0043/
00439845.pdf.
93 OSCE, ODIHR (2013), Hate crimes in the OSCE region,
incidents and responses 2012, Warsaw, ODIHR, pp. 44–50,
http://tandis.odihr.pl/hcr2012/pdf/Hate_Crime_Report_
full_version.pdf.
94 Ibid., pp. 54–59.
95 Ibid., pp. 60–66.
96 Ibid., pp. 67–71.
97 Spain, Ministerio de Empleo y Seguridad Social, Ministerio
del Interior (2013), Handbook for training security
forces in identifying and recording racist or xenophobic
incidents, http://explotacion.mtin.gob.es/oberaxe/inicio_
descargaFichero.action?bibliotecaDatoId=218.
165
7
Roma integration �������������������������������������������������������������������� 169
7.1. European institutions renew political commitment
to Roma inclusion and integration ������������������������������ 169
7.2. Member States begin implementation of
national Roma integration strategies ������������������������� 170
7.2.1. To make a difference, Member States
involve local authorities �������������������������������� 170
7.2.2. Engaging with civil society ���������������������������� 171
7.2.3. Monitoring progress ��������������������������������������� 172
7.2.4. EU Structural Funds and national‑level
funding for Roma integration ������������������������ 173
7.3. Member States target integration
in four priority areas ���������������������������������������������������� 173
7.3.1.Education �������������������������������������������������������� 173
7.3.2.Employment ��������������������������������������������������� 175
7.3.3.Housing ����������������������������������������������������������� 176
7.3.4.Health �������������������������������������������������������������� 178
7.4. Anti‑Gypsyism, hate speech and hate crime
against Roma ���������������������������������������������������������������� 179
Outlook ������������������������������������������������������������������������������������ 181
Fundamental rights: challenges and achievements in 2013
UN & CoE
15 January – European Economic and Social
Committee issues opinion on the Societal
empowerment and integration of Roma citizens
in Europe
29 January – European Court of Human Rights
(ECtHR) rules in Horváth and Kiss v. Hungary that
placing Roma children in remedial schools for
children with disabilities amounts to discrimination
January
19 February – Council of Europe European
Commission against Racism and Intolerance (ECRI)
issues its fourth report on Ireland
February
20 March – Council of Europe launches the
European Alliance of Cities and Regions for Roma
Inclusion
March
23 April – Parliamentary Assembly of the Council of
Europe adopts Resolution 1927 (2013) on Ending
discrimination against Roma children
April
30 May – ECtHR rules in Lavida and Others
v. Greece that continuing the education of Roma
children in a state school attended exclusively by
Roma children without implementing effective
anti‑segregation measures can not be justified.
Municipalities and educational authorities must
reconsider informal tactics that permit segregation
May
27 June – Eighth European Platform for Roma
Inclusion takes place in Brussels
June
9 July – ECtHR Vona v. Hungary sentence upholds
the decision of the Hungarian Supreme Court to
dissolve the Hungarian Guard Association, which
had held rallies targeting Roma and using
anti‑Gypsy rhetoric
9 July – ECRI issues its fourth report on Finland
9 July – ECRI issues its fourth report on Portugal
July
August
September
15 October – ECRI issues its fourth report on
the Netherlands
17 October – ECtHR rules in Winterstein and Others
v. France that the eviction of traveller families
from a caravan site where they had been living for
a long time, without providing alternative
accommodation or social housing, is a violation of
Article 8 (right to respect for private and family
life) of the European Convention on Human Rights
October
November
December
168
EU
January
February
March
April
May
26 June – European Commission issues a Communication on Steps
forward in implementing national Roma integration strategies
26 June – European Commission issues a Proposal for a Council
Recommendation on effective Roma integration measures in the
Member States
June
July
August
September
October
28–29 November – The Plenary Session of the Committee of the
Regions adopts an explanatory opinion on Roma integration strategies
November
9 December – Council of the European Union adopts a Recommendation
on effective Roma integration measures in the Member States
12 December – European Parliament adopts a Resolution on the
progress made in the implementation of the national Roma integration
strategies
December
7
Roma integration
Major European Union (EU) institutions and the Council of Europe renewed in 2013 their political resolve and
launched initiatives to fight the exclusion of and discrimination against Roma, the EU’s largest ethnic minority.
EU Member States have pledged to improve the situation of Roma in education, employment, health and
housing, developing concrete national strategies on Roma integration. There is, however, evidence of ongoing
fundamental rights violations, while for many Roma social exclusion and extreme deprivation remain a daily
reality. To accelerate progress, the Council of the European Union issued in December 2013 a ‘Recommendation
on effective Roma integration measures to Member States’, which highlights the need for effective monitoring
of the implementation of national integration strategies.
7.1.
European institutions
renew political
commitment to Roma
inclusion and
integration
In the face of incidents illustrating the discrimination
and exclusion Roma 1 people face, the European
Commission, the Council of the European Union, the
European Parliament and the Council of Europe renewed
their political resolve to fully integrate and include Roma
in European society. Nonetheless, in some EU Member
States Roma settlements were destroyed and Roma
EU citizens forcibly evicted from their homes or returned
to their countries of origin. In others, political parties
and extremist groups openly expressed anti‑Roma feel‑
ings, while media attention on alleged child abductions
stoked negative Roma stereotypes. With the Member
States’ action plans in place, EU institutions turned their
attention to effective implementation and monitoring.
The European Commission focused in a
June Communication on the structural preconditions for
more effective implementation of integration strate‑
gies. It called on Member States “to adopt or further
develop a comprehensive approach to Roma integration
Key developments
• The Council of the European Union issues a Recommendation
on Roma integration, providing guidance to EU Member
States on enhancing the effectiveness of their national Roma
integration strategies and policies.
• The Council Regulation on Structural Funds is adopted
including the ex ante conditionality concerning national
Roma integration strategies. It is the first time that one
specific investment priority focusing on the inclusion of
Roma and other marginalised communities is included as
a requirement in the Structural Funds.
• Forced evictions and segregation in education remain
major concerns.
• In the run‑up to the European Parliament elections, some
political parties and extremist groups in a number of
EU Member States express anti‑Roma feelings that can
endanger Roma integration efforts.
• Spikes in media attention are related to reports of alleged
child abductions, reinforcing negative stereotypes of Roma.
and endorse a number of common goals”, covering the
areas of education, employment, health and housing.2
It also concluded that more effort should be made to
develop robust monitoring and evaluation frameworks.
169
Fundamental rights: challenges and achievements in 2013
This includes comparing data and impact indicators to
measure progress on the ground and ensuring that
necessary funds are allocated to Roma inclusion efforts.
The European Commission also issued a proposal for
a Council Recommendation aimed at reinforcing the EU
Framework “with a non‑binding legal instrument in
order to make it easier for Member States to turn their
commitments into reality”.3
The Council of the European Union adopted
a ­recommendation4 that provides guidance to Member
States on enhancing the implementation of their meas‑
ures to achieve Roma integration. The recommendation,
adopted on 9 December 2013, establishes the first
EU legal instrument for Roma integration.
The European Parliament called on the European
Commission and Member States to ensure sufficient
funding for Roma integration. The resolution, adopted
on 12 December, also focused on EU‑wide monitoring
of the fundamental rights of Roma, anti‑Roma actions
and hate crime against Roma. It called for an end to
segregation in education and aimed at tackling discrimi‑
nation, particularly that faced by Roma women.
The Council of Europe has also taken positive measures.
Romed, which ran for two years in 22 countries, with
more than 1,000 trained mediators, entered its second
phase in 2013.5 The Council of Europe and the European
Commission’s DG Employment launched a new project
in Bulgaria, Hungary, Italy, Romania and Slovakia to
strengthen political will and build local authorities’
ability to draft and implement Roma inclusion plans and
projects.6 The initiative is supported by the European
Alliance of Cities and Regions for Roma Inclusion and
draws on the four thematic reports that were produced
by the Council of Europe Ad hoc Committee of Experts
on Roma Issues (CAHROM) in 2013 (on education,7
housing8 and anti‑Gypsyism9 and on Roma policy imple‑
mentation (latter report from 2012).
With positive political commitments in place and
­measures taken by the European institutions, a powerful
framework has been established to encourage and sup‑
port EU Member States in improving the situation of the
Roma in education, employment, health and housing
and in respecting human rights and non‑discrimination.
7.2. Member States begin
implementation of
national Roma
integration strategies
Each EU Member State developed a national Roma
integration strategy or corresponding set of policy
170
measures within its broader social inclusion policies in
response to the European Commission’s Communication
for an EU Framework for national Roma Integration
Strategies from May 2011. Many built upon previous or
existing Roma integration policies or action plans.
By 2013, nearly all Member States had developed and
approved their national Roma integration strategies and
national action plans; however, progress on implemen‑
tation of the strategies varied. Many Member States
are still working on developing institutional infrastruc‑
ture and monitoring and evaluation mechanisms for
implementing the strategies. In most cases, the Member
States implemented few actions in 2013, often hindered
by budgetary cuts and limited financial resources.
Poland, for example, continued implementing its
Programme for the Roma community for 2004–201310
covering education, Roma and civil society, employ‑
ment, health, housing, security and hate crimes, culture
and preservation of Roma ethnic identity, and knowl‑
edge about Roma. Legislation was in progress on
a multi‑annual programme for 2014–2020.11
In December, the Czech Republic approved
seven ­measures aimed at preventing social tension and
strengthening social cohesion between majority society
and the Roma minority, including revised housing ben‑
efits, a network of social services in excluded areas and
the reintroduction of community work. The government
did not, however, introduce social measures targeting
Roma specifically, because the delivery of aid based on
ethnic criteria is unconstitutional.12
Slovakia shifted responsibility for the national ­strategy’s
coordination and implementation to the Ministry of the
Interior from the Government’s Office and the Prime
Minister’s authority. NGOs criticised this move sharply,
claiming that it contributed to inflexibility in imple‑
menting the strategy and left those in charge with less
time to devote to the issue at hand.13
7.2.1.
To make a difference, Member
States involve local authorities
The European Commission’s 26 June Communication
stressed that “most Member States need to make fur‑
ther efforts and involve local authorities more closely
and systematically in developing, implementing, moni‑
toring, evaluating and reviewing policy” and asserted
that Roma integration plans and efforts to implement
the national Roma implementation strategies should
also be an integral part of regional and local
level public agendas.14
Bulgaria’s national strategy for Roma integration
required all municipalities to prepare and adopt munic‑
ipal Roma integration annual plans. Municipal plans
for 2013–2014 were approved by the end of March
for 220 of 264 municipalities,15 and plans for 2014–2020
Roma integration
will be adopted in 2014. In the United Kingdom, local
authorities established a National Roma Network as
a forum for dialogue between central government, local
authorities and civil society.16
Some EU Member States also began developing regional
and local action plans to implement their national strat‑
egies. Germany’s Berlin Action Plan for the Inclusion of
Foreign Roma, the country’s first regional action plan,
was adopted on 16 July.17 Sweden launched several pilot
programmes for Roma integration.18
FRA ACTIVITY
Collecting data through local
engagement
The Local Engagement for Roma Inclusion (LERI) re‑
search project aims to examine and develop ways
of improving the design, implementation and mon‑
itoring of Roma integration policies and actions at
local level. This objective corresponds to the issues
and needs identified by the European Commis‑
sion’s Roma Task Force, namely lack of know‑how
and administrative capacity at local level, ineffec‑
tive monitoring tools to measure progress, and
weak involvement of Roma and of civil society ac‑
tors in the design and implementation of Roma‑tar‑
geted interventions, particularly at the local level.
LERI aims to address those deficits through lo‑
cal‑level pilot research that will help understand
better the barriers and drivers affecting local‑level
implementation and how those barriers might be
overcome.
The LERI project will be carried out in 2014–2016 in
22 localities in 11 Member States: Bulgaria, the
Czech Republic, Finland, France, Greece, Hungary,
Italy, Romania, Slovakia, Spain and the United
Kingdom.
FRA (2013), FRA Multi‑annual Roma Programme, primary qualitative
data: Participatory action research, available at: http://fra.europa.
eu/en/project/2013/multi-annual-roma-programme?tab=localengagement
Several Member States set up working groups or
­advisory councils comprising representatives of minis‑
tries, local authorities, independent experts, Roma
associations and other civil society organisations.
Croatia, Finland, France, Latvia,19 Romania, Slovenia20
and Spain established working groups and platforms to
develop and consult on national Roma integration strat‑
egies. Spain developed an operational plan for the
2012–2020 national strategy to strengthen coordination
between different administrative levels. 21 Italy also
established discussion tables at various government
levels, 22 including an interministerial political round
table to discuss local issues. Roma associations criticised
the roundtable, however, for not requiring the inclusion
of Roma community representatives.23 In Slovenia,24
Roma representatives, including those from each
municipal council, will set up a working body to monitor
the Roma’s local situation and to report yearly to a com‑
mission set up for the protection of the Roma community.
Belgium uses multiple stakeholder cooperation to
address Roma integration. One example is the regional
integration centre Foyer in Brussels, which cooperates
with social services, schools and local governments to
better address Roma issues.25
At the eighth European Platform for Roma Inclusion
in June, the Netherlands announced an initiative to
create a working group on child rights issues as an
extension of its programme to combat crime and the
exploitation of Roma children.26
7.2.2.
Engaging with civil society
In its June Communication, the European Commission
stressed again that “civil society needs to play an active
role in implementing and monitoring national strate‑
gies.”27 Simple consultation is not enough. To this end,
many of the EU Member State working groups set up
to advise on the development and implementation of
the national Roma integration strategies include civil
society organisations, NGOs and representatives of
Roma associations. Nonethless, questions remained on
how exactly to define civil society’s role in imple‑
menting monitoring national strategies and how to
consult civil society in practice.
Austria28 and Spain consulted Roma civil society on how
to implement their national strategies, and Roma civil
society organisations took part in a consultative council
and the National Agency for Roma in Romania. In
Belgium, Roma took direct part in consultations on
social services through a new project initiated in 2013.29
Hungary set up several consultative bodies, which
involve representatives of Roma minority self‑govern‑
ments and representatives of civil society organisa‑
tions. The civil society report, coordinated by the
Decade of Roma Inclusion Secretariat, criticised the
Roma action plans,30 saying that some new govern‑
ment policies undermined rather than sup‑
ported Roma integration.
In Lithuania, civil society organisations, including Roma
NGOs, criticised the government for failing to make the
consultative process genuinely inclusive while pre‑
paring the 2012–2014 Roma Action Plan.31
Two NGOs prepared an external evaluation report on
the national Roma integration strategy after the Slovak
government failed to involve civil society, formally or
informally, in the strategy’s implementation and after
the government’s Office of the Plenipotentiary for
171
Fundamental rights: challenges and achievements in 2013
Roma Communities delayed delivery of its own moni‑
toring report in early 2013.32
developing more robust and effective approaches
to data collection.
Ireland established a steering group including Roma
representatives. In Bulgaria, nine Roma organisations
withdrew from the National Council for Cooperation on
Ethnic and Integration Issues in April, after it failed to
react to ethnically motivated Roma murders.33 In
response, to implement the national strategy, the
council formed a commission with the participation of
Roma NGOs and other civil society organistations
working in the field of Roma integration.
Several EU Member States established special steering
groups or committees to monitor the implementation
of their national strategies, for example in Croatia35 and
Finland.36 In Estonia, an informal working group was
established to collect data and information on Roma
and to raise public awareness of Roma culture.37
Finland’s steering group on Roma policy implementa‑
tion published its first monitoring report at the end
of 2013, as did that of the Netherlands, whose report
will serve as a baseline qualitative study to be con‑
ducted every two years.38 In Hungary, a set of indicators
developed by the Department of Strategic Planning of
the State Secretariat for Social Inclusion together with
independent experts were piloted and were fed into
the first government monitoring report on the
Government Action Plan for Social Inclusion.39 France
developed a set of indicators to monitor implemented
actions. Austria is carrying out several studies to
monitor the inclusion of Roma in education, employ‑
ment, housing and access to healthcare. Bulgaria imple‑
mented a project on the integration of marginalised
communities with a focus on Roma, including two
nationally representative surveys to support data col‑
lection and monitoring.40
Every year in Finland, the Regional Advisory Boards of
Romani Affairs organise consultation days for local
actors to present their work and provide views on the
national Roma strategy and its implementation.
Similarly, Portugal established a consultative group
in June to monitor the national strategy’s implementa‑
tion and Roma communities’ integration.
In France, national consultative panels on illegal
s­ ettlements and on Gens du voyage bring together civil
society organisations and national authorities to advise
on the national strategy.
7.2.3.
Monitoring progress
The European Commission communication and the
Council of the European Union recommendation high‑
lighted the need for monitoring Roma‑targeted inter‑
ventions. Additionally, the European Parliament urged
EU Member States:
“to produce disaggregated data with the
­assistance of FRA, the UNDP and the World Bank
on the socio‑economic situation of Roma, the
degree to which Roma experience discrimination
on the grounds of ethnic origin, and hate crimes
committed against them, while fully respecting
data protection standards and the right to pri‑
vacy, and to develop, in cooperation with the
Commission, the baseline indicators and meas‑
urable targets that are essential for a robust
monitoring system […].”34
The challenge remains the limited progress in
­monitoring. With many action plans still under develop‑
ment, few have been monitored or evaluated to date.
Data collection on Roma is fragmented in many
EU Member States, making it even more difficult to
monitor the progress of implementation. Fundamental
questions – such as how to statistically define the popu‑
lation collectively labelled as ‘Roma’ – remain open.
With incomplete official data on Roma, and with some
Member States prohibiting data collection by ethnicity,
progress reports often rely on unofficial sources, such
as the media, academic studies and NGO reports. FRA’s
work on Roma integration in 2014 will focus on
172
To address the particular situation of Roma women, the
Finnish Ministry of Social Affairs and Health published
a study41 on domestic violence against Roma women,
which found that women under‑report these crimes,
often leaving such violence hidden. FRA’s new study
on violence against women shows, unfortunately, that
Roma women share this experience of violence and
related fears with many other women in the EU.
FRA ACTIVITY
Ad‑hoc Working Party on
Roma Integration
In 2013, FRA held the third meeting of its ad‑hoc
working party on 26 June in Brussels. It discussed
EU Member States’ progress and experiences in
setting up monitoring mechanisms. Working party
members saw the local level as an area of poten‑
tial improvement.
FRA also introduced plans to pilot an indicator
framework that will help chart progress in Roma
integration across the EU.
Furthermore, data collection broken down by ethnicity
may verge on illegality if data protection standards are
not rigorously adhered to. In September, it was discov‑
ered that police in southern Sweden had kept a register
with the names of thousands of Roma Swedes, including
children and some deceased persons. An investigation
Roma integration
determined that the register had several illegal aspects,
even though it was not based on ethnicity.42
7.2.4. EU Structural Funds and
national‑level funding for Roma
integration
In 2010, the European Commission’s Roma Task Force
identified limited funding from national budgets and
EU Structural Funds as a major challenge to the imple‑
mentation of national strategies on Roma integration.
With this in mind, the Commission revised the Regulation
on Structural Funds, integrating requirements that must
be complied with before funds are allocated; these are
termed ex ante conditionalities (see also Section 5.5 of
Chapter 5).43 These requirements ensure that socio‑eco‑
nomic integration of marginalised communities such as
the Roma is achieved through the allocation of directly
managed EU funds.
worse in terms of enrolment, participation, educational
attainment and completion. On average, 89 % of Roma
surveyed in a FRA Roma pilot survey had not acquired
any upper secondary education, compared with 38 % of
the non‑Roma living nearby.47 Roma girls in particular
drop out from school early.48
Most individual EU Member States have concentrated
their efforts on education, particularly in projects and
activities to improve early childhood education and care
and in promoting measures to support Roma children
in completing primary education. Although such steps
do not always explicitly target Roma, several Member
States, including Austria, 49 Bulgaria, the Czech
Republic,50 Finland,51 Luxembourg and Poland, recently
introduced free compulsory pre‑school or last year of
kindergarten. They often also provided financial support
for Roma and families belonging to disadvantaged or
vulnerable groups and ensured that special places were
reserved for children from such backgrounds.
The development and adoption of the national Roma
integration strategies has not implied substantial
changes in the use of EU structural funds, 44 but many
governments, including local authorities, put new or
planned activities on Roma integration on hold, often
referring to austerity measures as the reason for
funding cuts. Municipalities in Bulgaria, for example,
were required to develop local action plans, but were
expected to fund them from existing annual budgets.
In Ireland, the government reduced spending on pro‑
grammes for Travellers by 4.3 % for 2008–2013, hin‑
dering the full implementation of action plans.45
Other forms of educational support for Roma were
­initiated to promote primary school completion. Poland
introduced financial support for books and school mate‑
rials, while Cyprus, Romania and Slovakia provided free
school meals. The Netherlands allocated additional
state budget funds to primary schools with Roma chil‑
dren, as has the Flanders region in Belgium since 2012.
Additionally, some projects, conceived within the
national action plans and strategies, requested funding
but received none. This occurred in Romania. 46 In
Hungary, municipalities are required to prepare equal
opportunity programmes as of 1 July 2013 to participate
in tenders financed by either the national budget
or EU funds.
Croatia, Hungary,52 Italy53 and Poland 54 supported
­scholarship programmes for Roma students in primary,
secondary and tertiary education.
7.3. Member States target
integration in four
priority areas
Education, employment, housing and health are key
priority areas for Roma integration. Discrimination in
these areas violates fundamental rights. Roma integra‑
tion efforts are not, however, limited to these areas;
such challenges as political participation or gender
equality are no less important.
7.3.1.Education
A wide gap persists between Roma and non‑Roma
children in education. Roma children across the EU fare
Croatia supported Roma families with pre‑school and
kindergarten expenses, and Romania provided disad‑
vantaged students, including Roma, with milk and
bread, financial aid and financial grants for computers.
France provided Roma children with free transport to
school as part of mainstreamed free transport pro‑
grammes. Italy, in contrast, cut public spending, which
meant discontinuing similar programmes in many
municipalities, including Milan and Naples.55
Portugal implemented awareness‑raising activities on
the importance of school, with successful Roma partici‑
pating as ambassadors to share their experiences.56 In
four Belgian cities, neighbourhood stewards promoted
awareness of the importance of schooling. In Spain,
a nationwide campaign encourages Roma to com‑
plete high school.
In Bulgaria, the Ministry of Labour and Social initiated
three calls for projects57 to improve the integration of
children from ethnic minorities in primary education
and to reintegrate dropouts. Portugal piloted alterna‑
tive schooling or vocational paths for students who had
repeatedly failed the same course, aiming to encourage
students to continue in secondary education.58 Greece
173
Fundamental rights: challenges and achievements in 2013
also targeted Roma school attendance, with pro‑
grammes including summer classes to help ease the
transition to secondary school.
To increase the proportion of Roma students in
­universities, Romania allocated a quota of places for
them, benefiting some 3,000 secondary school students.75
Croatia, Finland,59 France and Luxembourg provide lan‑
guage support to help non‑native speakers integrate
and achieve. Austrian primary schools may provide
special language support for children who do not have
German as a mother tongue.60 Similarly, some Danish
municipalities launched ‘phasing‑in’ classes for students
whose first language was not Danish, to help them tran‑
sition into regular classes. In Cyprus,61 bilingual teachers
helped to facilitate communication among students,
teachers and parents.
Discrimination in education
Finland introduced Romani language courses in upper
secondary schools and at the University of Helsinki.62
Latvia offered support classes on Latvian, sciences and
foreign languages, and Roma teachers and assistants
were hired in various municipalities.63 A new Swedish
initiative enables students from five national minori‑
ties – including Roma – to study their minority language
as a native language.64 It is also developing new material
on Roma language, culture and traditions to improve
staff and student awareness.65
Several EU Member States continued to deploy Roma
school mediators and assistants. Greece and Portugal,66
for example, use such mediators; Germany has a pro‑
ject67 that uses mediators and social education assis‑
tants to help Roma children in primary and secondary
school with homework. They also intervene in cases of
conflict and advise parents. In some Austrian schools
with a high percentage of Roma pupils, Roma school
assistants provided learning support, helped teachers
and motivated children in class.68 In France, a project
on school mediators was launched to encourage school
participation of children from illegal settlements. In
Luxembourg, teachers received specific training on
instructing Roma students, with mediation offered in
several languages. The Netherlands has mediators
and counsellors for Sinti, Roma and Travellers. Poland
provides Roma assistants and tutors to help Roma chil‑
dren,69 and there are assistants for the entire Roma com‑
munity. Teachers and students attend courses on Roma
culture, and teachers learn how to prevent discrimina‑
tion.70 In Romania, school principals were instructed on
the rights of the child,71 and some teachers received
education in the Romani language and Roma history. In
Slovakia, 110 Roma teaching assistants were involved in
the national programme of school inclusion at pre‑school
level, which targets marginalised Roma communities.72
A Slovenian project focuses on facilitating the inclu‑
sion of Roma children in pre‑school; it provided training
courses for teachers and awareness‑raising campaigns
for parents.73 Similarly, a website in Finland74 was set
up to provide information on Finnish Roma history and
culture, including teaching materials for schools.
174
EU Member States took measures to combat
­discrimination in education. The Council Recommendation
on effective Roma integration also explicitly called on
Member States to eliminate any school segregation and
to put an end to “any inappropriate placement of Roma
pupils in special needs schools.”
D e s p i t e M e m b e r St a t e s ’ co m m i t m e n t s t o
­non‑discrimination, the segregation of Roma children
in education remains a widespread problem in Member
States including the Czech Republic, Hungary, Romania
and Slovakia. Small steps forward were made, but
challenges remain. Latvia, for example, closed ethnic
classes following a request by the Ombudsman.76 In
nearly a quarter of its schools, Hungary has estab‑
lished an integrated pedagogical system designed to
bridge the gap between educationally disadvantaged
and non‑disadvantaged children.
Research studies and reports confirm evidence of
­segregation in education, highlighting the severity of the
issue and underlining the findings of surveys conducted
by FRA, the UNDP and the World Bank. The European
Commission against Racism and Intolerance (ECRI)
expressed concern about racist acts in Finnish schools
against Roma children, especially in primary schools, the
most serious problem being racist insults.77
The United Nations’ Special Rapporteur on ­contemporary
forms of racism, racial discrimination, xenophobia
and related intolerance78 also highlighted, after his
visit to Spain in January, that Roma pupils continue
to suffer from school discrimination and segregation,
high dropout rates in secondary education and limited
access to university.
In the Czech Republic, the School Inspectorate launched
in September an investigation of Romani school chil‑
dren at schools for children with mild intellectual dis‑
abilities. The research was in response to a judgment
by the European Court of Human Rights (ECtHR), which
found that 18 Romani children had been unjustifiably
reassigned to such special schools. The research found
that 28 % of pupils attending ‘practical schools’ are
of Roma origin.79
According to a 2013 survey on segregation in Hungary
published by the Roma Education Fund,80 “educational
policy is more segregationist when the Romani popula‑
tion is concentrated in segregated areas of town.” The
survey compared the impacts of the three factors leading
to school segregation: segregationist local policies, resi‑
dential segregation and the high number of Roma.
Roma integration
Some legal developments highlighted the continued
wrongful discrimination and segregation of Roma
children in schooling. The Hungarian Equal Treatment
Authority (Egyenlő Bánásmód Hatóság) imposed
a sanction on a teacher for making an offensive
statement towards a child of Roma ethnicity during
a study hall session.81
that on average only 28 % of Roma aged 16 years and
older indicated ‘paid work’ as a main activity, compared
with 45 % for non‑Roma living nearby. Of those
employed, 23 % held ad hoc irregular jobs, often infor‑
mally, 21 % were self‑employed and 9 % had part‑time
work.90 These findings are also reflected in other
studies and research.91
Two significant ECtHR judgments in the field of Roma
and education in 2013 considered it discriminatory that
Roma pupils attended schools in which there were no
non‑Roma students. In the Horváth and Kiss v. Hungary
case, which became final on 29 April, the ECtHR con‑
sidered discriminatory the placing of two young Roma
men in schools for people with intellectual disabilities,
and raised the question of whether this might have
compromised their integration.82 The ECtHR found that
the Hungarian government had failed to prove that the
difference in treatment had not had disproportionately
prejudicial effects on the applicants. Therefore, the
treatment violated the European Convention on Human
Rights’ right to education (Article 2 of Protocol No. 1)
in conjunction with the prohibition on discrimina‑
tion (Article 14).
The Council Recommendation on effective Roma
­integration, from December, recommended that
EU Member States “take effective measures to ensure
equal treatment of Roma in access to the labour market
and to employment opportunities.”92 The majority of
2013 initiatives focused on improving workplace inte‑
gration and supporting Roma employment services.
Many Member States set up or continued projects sup‑
porting Roma job seekers, assisting with such skills as
training for active job seeking, language courses, guid‑
ance in writing CVs and developing individual employ‑
ment plans. Belgium, Croatia, France, Lithuania, Poland,
Portugal and Slovenia, for example, carried
out such initiatives.
The importance of this case lies in the long history of
school segregation of Roma: placing Roma children in
special remedial schools for children with intellectual dis‑
abilities, in segregated all‑Roma schools or in all‑Roma
classes in nominally ‘integrated’ mainstream schools.
This is a long‑standing practice in the Czech Republic,83
Latvia,84 Romania85 and Slovakia.86 In this regard, the
Czech Committee of Ministers on Human Rights, on its
supervision of the D. H. and Others v. Czech Republic
case, pointed out that a decreasing number of Roma
children were educated in ‘special schools’, although
their overall percentage remains disproportionately
high. According to the European Roma Rights Centre
(ERRC), little has changed since the judgment. Such
Roma‑dominated schools continue to provide an inferior
education “without qualifications for any job beyond the
most menial and with no hope for the future.”87
The Lavida and Others v. Greece case, 88 final
since 30 August, addressed a similar problem to
2012’s Sampani and Others v. Greece,89 which became
final on 29 April 2013, of placing Roma children in schools
with no non‑Roma students. The Greek authorities’
failure to take antisegregation measures was considered
discriminatory and a violation of the right to education.
This practice, like that of placing Roma in schools for
persons with mental disabilities, was common in other
countries such as France and Romania.
7.3.2.Employment
Roma face a disproportionate risk of unemployment.
When employed, they occupy mostly low‑skilled, inse‑
cure and low‑paid jobs. Data from the FRA survey reveal
An Austrian project offered job and career counselling
to Roma job seekers.93 Germany implemented voca‑
tional guidance programmes for young Roma.94
In Belgium, intercultural mediators began providing
individualised support to facilitate dialogue between
local Roma communities and public institutions, and to
support integration into the workforce for vulnerable
groups, funded under the ESF.95 Portugal organised
labour mediators to encourage unemployed Roma to
sign up at the labour office, and Bulgaria96 established
an NGO network of Roma labour mediators in June.
Cyprus, whose Roma job seekers often cannot speak
English or Greek, introduced national and local language
programmes,97 but Roma participation was minimal. Job
centres in Denmark also provided language courses.
Portugal offered basic skills adult training programmes
for adults, to enable Roma, among others, to gain entry
to other training leading to qualifications.98 Hungary
also offered adult vocational education and training
courses, providing special support for training courses
connected to public work. At least 15 % of individuals
benefiting from labour market programmes must be
of Roma origin.
Childcare services and facilities can support integration
in employment. The Czech Republic and Germany,99
therefore, took measures to increase their availability.
Some EU Member States have taken measures to
address Roma women’s employment challenges. In
a pilot project, Slovenia trained 23 Roma as cooks and
waiters, and then set up a restaurant employing
four of them. The project promotes Roma inclusion and
175
Fundamental rights: challenges and achievements in 2013
the preservation of their traditional cuisine.100 Belgium
launched projects to support pathways to employment
for Roma women, and Hungary developed such a pro‑
ject for 1,000 Roma women.101 Lithuania initiated a pro‑
ject to foster Roma women’s entrepreneurship through
traditional crafts such as sewing and embroidery. The
participants managed all project activities themselves.
The products are all available for sale, with the proceeds
reinvested in new empowerment projects for Roma
women. A new Swedish programme intends to further
the education of marginalised Roma women to increase
their opportunities to find employment.
Promising practice
Promoting Roma women’s education
and employment
The Türr István Training and Research Institute
and the National Roma Self‑Government of Hun‑
gary implemented a project to enhance the edu‑
cation and employability of Roma women. The
programme, Women Are the Opportunity!, pro‑
vides Roma women with theoretical and practical
vocational training. Participants are then provid‑
ed with employment in social and child welfare
services, including as social workers or nurses.
The programme combines skills and mentoring.
The programme is targeted at women job hunters
disadvantaged by a lack of education. Partici‑
pants must have completed primary education.
For more information, see www.tkki.hu/page.php?mid=122
Discrimination in employment
Despite measures to improve access to the labour
market and professional qualifications, Roma continue
to face discrimination both in access to employment
and in the workplace. The data from surveys conducted
by FRA, the UNDP and the World Bank reflect this
reality: a significant part of the gap in employment
between Roma and non‑Roma cannot be explained by
education or qualification level.102
A research study in Hungary by the Equal Treatment
Authority,on employee selection practices, revealed
that Roma job seekers, or those who were perceived
to be Roma, faced 10 times as high as those for
non‑Roma.103 A study published in 2013 confirmed such
discrimination, showing similar results for those par‑
ticipating in public employment schemes.104 The Finnish
Ombudsman for Minorities105 also confirmed discrimina‑
tion against Roma in employment and housing.
Only a few EU Member States took action to
eliminate discrimination in employment. Greece
developed a project to combat discrimination in
entrepreneurship, with a focus on women and
176
young Roma and Muslim migrants.106 The Czech
Republic finished training employment office staff
on antidiscrimination measures.107
Several legal developments also reflected the extent
of discrimination against Roma in employment. The
Croatian County Court of Varaždin upheld a 2012
Municipal Court verdict, which considered a shop
owner’s rejection of Roma applications on account of
their ethnicity as discriminatory.108
The Hungarian EBH determined that a difference in the
sanctions applied to two public employees for the same
petty offence was due to the Roma ethnicity of one of
them, and was therefore discriminatory.109
7.3.3.Housing
The European Commission, in its first assessment of
national strategies in 2012, called on EU Member States
to close the gap between Roma and non‑Roma in
access to housing and to public utilities, including the
promotion of non‑discriminatory access to housing.110
The December Council Recommendation on effective
Roma integration further recommended that Member
States take effective measures to ensure equal treat‑
ment of Roma in access to housing through “eliminating
any spatial segregation and promoting desegregation,
promoting non‑discriminatory access to social
housing”111 and ensuring access to public utilities and
infrastructure. However, few Member States took
action in the housing area in 2013. Housing segregation
and forced evictions remained a serious concern and
a huge challenge to their successful integration in
many Member States.
The availability and affordability of social housing and
promoting non‑discrimination in access to housing are
particularly important. Criteria designed for social housing
for vulnerable groups often exclude Roma families.112
In Portugal, the Institute of Housing and Urban Renewal
(Instituto da Habitação e Reabilitação Urbana) collected
data on Roma community housing conditions and on
municipal projects, whether finished, under way or
planned. The survey findings identified 54 municipal
projects, 11 of which related to housing management.
Cyprus implemented projects to repair houses and build
prefabricated houses with basic amenities.113 Poland,
Portugal and Romania also renovated housing or
improved social housing conditions. Slovakia is building
new houses in three marginalised Roma municipali‑
ties.114 Greece and Slovenia also undertook infrastruc‑
tural improvements, building access roads and providing
electricity and sewerage to Roma settlements.
The United Kingdom is allocating GBP 60 million up to
the end of 2015 to build over 600 new, and refurbish
Roma integration
400 existing, pitches for Travellers.115 French law requires
cities with more than 5,000 inhabitants to have recep‑
tion areas for Gens du voyage, and it allocates funding
to suppor t housing and integration projec ts
in illegal settlements.
Promising practice
Building hope
ETP Slovakia – Centre for Sustainable Develop‑
ment continued to provide housing‑deprived
Roma in Slovakia with the opportunity to secure
simple, decent and affordable homes.
‘Building Hope’ enables clients to build their
own houses. The project uses a light construc‑
tion system with less expensive recycled and
ecological materials. The programme provides
professional supervision, assistance with admin‑
istrative requirements, and microloans to finance
construction.
The basic 25 m2 model includes a bathroom with
toilet, washbasin and bathtub, a kitchen sink,
a room for daily use and a sleeping area on an
elevated floor. It is possible to enlarge the house
to 37.5 m2 by enclosing the porch, gaining an ad‑
ditional room to serve as a bedroom.
Construction takes about 12 months. Loans of up
to €6,000 are to be repaid in 10 years. Partici‑
pating families must take part in ETP educational
and financial savings programmes, demonstrat‑
ing a strong commitment to changing their lives.
The project tackles generational poverty and the
social exclusion of marginalised Roma. It also al‑
lows unemployed Roma to earn wages while
learning vocational, life and personal skills.
For more information, see www.etp.sk/en/category/
budujeme-nadej/
Croatia, Portugal and Denmark prioritised the alloca‑
tion of 25 % of social housing to those with special
concerns. In Luxembourg, home ownership is subsi‑
dised for residents and social housing is accessible for
all by priority. Slovakia provided a state housing allow‑
ance, although it was not specific to Roma. Three munic‑
ipalities in Bulgaria 116 prepared a pilot scheme on
modern social housing.
Czech law requires equal access to all types of housing,
including social housing, but a civil society monitoring
report pointed to a lack of social housing as
a severe problem.117
Some EU Member States, including Croatia, provide
legal support for housing, concretely financial support
to enable Roma to obtain the documentation needed
to legalise housing. The Czech Republic distributes
grants to NGOs that provide housing advice.
Roma civil society has also launched housing i­ nitiatives.
In the Netherlands, the Association of Dutch Sinti,
Roma and Caravan Dwellers advocates for a continued
caravan lifestyle. It also wants to serve as a partner
for dialogue with public authorities in the
field of housing.
Discrimination in housing
Despite efforts to improve the Roma housing situation,
negative developments also took place. In Hungary,
a programme to reduce segregated neighbourhoods
faced funding‑related delays.118 Many forced evictions
were reported in Italy, and housing loan repayment
problems continued to dog Roma in Greece.119
More than half the Roma population in Slovakia lived
in 804 marginalised concentrations. Of those Roma,
12.9 % lived in urban concentrations or ghettos within
municipalities, 23.8 % lived on the outskirts of munici‑
palities and 17 % lived in segregated areas.120
ECRI noted in its report on Portugal121 that housing is
the single greatest problem facing the Roma population.
Many Roma continue to live in precarious conditions,
often in shanties or tents. Many Roma rehousing pro‑
grammes result in spatial and social segregation and
discriminatory practices, it noted.
The Swedish Equality Ombudsman noted that, among
Swedish national minorities, only Roma report cases of
discrimination. The reports mostly concern housing,
social services and the provision of goods and services.122
Forced evictions remain a deep‑seated problem, with
cases reported in 2013 in France, Greece, Ireland,
Italy and Romania.
According to figures gathered by the Human Rights
League (LDH) and the ERRC, more than 21,537 Roma
were forcibly evicted from a total of 187 sites in France
in 2013, more than double the 2012 figure. Law enforce‑
ment officers carried out 165 evictions affecting almost
19,380 people, and another 22 evictions due to fire,
floods or attack, affecting 2,157 Roma.123
In response to repeated reports of forced evictions in
Italy and the segregation of Roma and Sinti in various
cities, the Council of Europe Commissioner for Human
Rights wrote to the Mayor of Rome in December, saying
that “the situation of Roma and refugees in Italy is
a long‑standing concern. Local authorities, including in
Rome, have an important role to play in improving the
living conditions of these people.”
After a six‑day notice period, a Romania municipality
razed a Roma community in Eforie Sud, leaving
100 people without housing. Some families sought
shelter in a dilapidated building without facilities or
177
Fundamental rights: challenges and achievements in 2013
made makeshift huts out of the ruins, only to see them
bulldozed again two weeks later.124
The Public Defender of Rights125 was asked to review
the implementation and procedures used in 20 cases
of forced eviction, mostly involving Roma EU citizens
of Romanian or Bulgarian origin, in France.
The ERRC lodged a complaint against Ireland before the
European Committee of Social Rights (ECSR). The com‑
plaint, lodged on 19 April 2013, alleged that the govern‑
ment had violated a number of rights in the Revised
European Social Charter through evictions and sub‑
standard housing conditions for Travellers.126 The com‑
plaint named the right of the family to social, legal and
economic protection (Article 16), the right of children
and young persons to social, legal and economic protec‑
tion (Article 17) and the right to protection against
poverty and social exclusion (Article 30).
In its judgment in Winterstein and Others v. France, not
yet final, the ECtHR held that the eviction of Roma
families violated the ECHR’s right to respect for private
and family life and home (Article 8).127 The court noted
that the claimants had been living on the same site for
a long time, other housing was not provided to all of
them, and the domestic authorities failed to assess the
measure’s proportionality. The ECtHR linked Winterstein
to its 2012 ruling in the Yordanova case,128 in which it
found Bulgaria in violation of Article 8,129 and reaffirmed
that Roma as a minority, and one in a vulnerable situ‑
ation, require states to pay special attention
to their needs.
In a related case, the Administrative Tribunal of Lyon,
dealing with social housing for an evicted Roma family,
also determined that the municipality should provide
them with emergency accommodation. A court in
Aix‑in‑Provence also ruled that the municipality did not
have the right to evict families from private property.130
The Greek Ombudsman also intervened in a case
relating to the eviction of Roma from a camp in Halandri,
noting that the state should ensure appropriate alterna‑
tive accommodation before demolishing a camp.131 In
Romania, the Cluj‑Napoca County Court determined
that the eviction of more than 300 Roma from the
Pata‑Rât settlement in 2010 was illegal.132 A similar case
is under way at the Regional Court of Wroclaw, Poland,
where the municipality requested the eviction of 20
persons from an illegal camp in March.
The Slovenian Advocate of the Principle of Equality
asked Novo Mesto municipality to reconsider social
housing criteria to ensure that such housing is equally
accessible to the most disadvantaged groups, including
Roma.133 In the United Kingdom, the High Court of Justice
of England and Wales ruled, in a case concerning
housing benefit for two Roma Gypsies who had moved
from a public to a private caravan site, that the benefit
178
calculation should not consider the fact they were
Roma.134 In Sweden, compensation was awarded to
a Roma woman whose landlord had cancelled her con‑
tract, arguing that neighbours would not want to live
in the same building as a “gypsy”.135
7.3.4.Health
Poor living standards and housing conditions,
­exacerbated by limited access to healthcare services,
mean poor health for many Roma. Data from FRA, UNDP
and World Bank surveys show that a significant propor‑
tion of Roma do not have, or are not aware that they
have, health insurance; in practice, this deprives them
of medical services.
The Council Recommendation on effective Roma
­integration acknowledged the need to ensure equal
treatment of Roma in access to healthcare services. It
recommended that EU Member States remove barriers
to accessing healthcare. It called specifically for
improved access to regular preventative medical
check‑ups and other medical services generally pro‑
vided by national healthcare services, such as free
vaccination programmes, especially for children and
Roma in remote areas. Still, few such measures were
initiated in 2013.
Several Member States worked to improve Roma access
to public health services. Austria launched a project to
promote Roma access to the public health service,
beginning interviews with health service providers and
Roma community representatives in 2013.
Health mediators continued their work in ­Bulgaria,136
France, Italy, Romania, Slovakia and Sweden.137 In
Slovakia, for example, health mediators provided infor‑
mation on basic hygiene, early child care, reproductive
and sexual health and food and environmental safety.
They also ensure access to health insurance
cards and vaccinations.138
Several Member States deployed medical social
­assistants or counsellors. The Czech Republic uses
them but, to date, only a handful have been trained.139
Cyprus and Hungary have health guard assistants,
based on a health service model launched in July for
disadvantaged micro‑regions. Ireland140 and Portugal
make mobile health units available, while Roma in
some Bulgarian could use the mobile units for free
gynaecological and paediatric exams and lab analyses.
Croatia, Ireland, Italy and Greece 141 carried out free
vaccination campaigns for Roma, particularly
for Roma children.
Some Member States implemented outreach
­programmes and workshops on medical topics. Finland
established such programmes on hygiene and health
and the importance of regular health screening for
Roma integration
Roma. Bulgaria142 provided HIV prevention workshops
and Hungary delivered healthcare communication
campaigns. Hungary also launched a professional
educational programme in 2013, under which
low‑skilled persons in the most disadvantaged regions
received an education on basic health‑related issues.
Following the training, they can pass on basic preven‑
tative information and advocate healthier lifestyles in
their local communities. Lithuanian services ran chil‑
dren’s courses on healthy lifestyle, hygiene and sanita‑
tion. Poland provided first‑aid courses and continued
a prevention project.
Other initiatives, involving financial support, aimed to
boost the numbers of Roma health professionals.
Romania introduced a Roma health scholarship pro‑
gramme in 2008 and Bulgaria added a programme in
2009 for Roma students to attend medical university,
both of which continued implementation in 2013.
Promising practice
Providing Roma health scholarships
The Open Society Institute in Sofia and the Amal‑
ipe Centre run the Roma Health Scholarship Pro‑
ject, which supports Roma students who study
medicine, to increase the number of Roma health
professionals in the healthcare system.
The programme includes preparatory courses. In
addition, every student has a university professor
as a mentor. For students enrolled over the sum‑
mer, Amalipe organises an advocacy camp. The
camp teaches students about Roma history and
specific Roma community health problems as
well as soft skills, including conflict resolution and
leadership and advocacy skills.
The programme started as an Open Society Insti‑
tute and Amalipe NGO initiative, but the Bulgarian
Ministry of Health, having recognised it as one of
the three leading practices for Roma health inte‑
gration, will manage it from 2014.
For more information, see http://amalipe.com/index.
php?nav=projects&id=38&lang=2
Greek efforts to improve healthcare access, an
­important development for Roma, encountered finan‑
cial difficulties in 2013. The socio‑medical centres, which
were operating in municipalities with a high Roma
population, ran out of financing because of the coun‑
try’s economic crisis.
Slovakia introduced consent forms in minority
­languages, including in Romani, after several ECtHR
sentences condemned forced sterilisations. However,
several NGOs have reported that these forms have had
only limited effect, because most Roma women are
illiterate and understand only the spoken language.143
Slovenia amended its legislation to provide
n on‑compulsor y health insurance to socially
­
­disadvantaged groups, including Roma.144 Sweden is
developing a hotline for Roma girls on sexual
and reproductive health.145
A paper on Roma and health mediation in Romania,
published in late 2013,146 promotes health equity with
a particular focus on Roma.
The Finnish National Institute for Health and Welfare
began a research project on the health situation of
Roma.147 The institute conducted a pilot study on
a sample of 30 individuals at the end of 2013 and will
carry out the main research from 2014 to 2016.
A Bulgarian programme trained teachers, doctors and
social workers to cooperate with the Roma community
and raised awareness on racism and anti‑Roma atti‑
tudes.148 The Czech Republic and Romania also have
compulsory educational components on ethics, non‑dis‑
crimination and communication in medicine, dentistry
and pharmacy.149 In Italy, a health mediation project
was initiated in 2013 in Rome.150
Discrimination in access to health
Few EU Member States made progress in implementing
measures to reduce discrimination in healthcare. Most
of those efforts focused on training and awareness
raising among healthcare professionals regarding Roma.
In addition to the few targeted measures developed in
some Member States, other legal developments also
highlighted the issue of Roma and health. The Chamber
of the ECtHR requested observations on the case Z. K. v.
Slovakia151 from the government in 2013. The applicant
is a woman of Roma origin who was sterilised, allegedly
without informed consent, during the delivery of her
second child, when she was still underage. The case is
similar to others in which Slovakia was found responsible
for forcibly sterilising women of Roma origin without
their consent: V. C. v. Slovakia,152 N. B. v. Slovakia153 and
I. G. and Others v. Slovakia,154 the last becoming final on
29 April. However, the ECtHR did not find a violation of
the prohibition of discrimination (Article 14 of the ECHR)
on account of their ethnicity in any of the cases.
7.4. Anti‑Gypsyism, hate
speech and hate crime
against Roma
A number of reports by European and international
bodies such as ECRI and CAHROM, and studies carried
out by NGOs, have documented the prevalence of
anti‑Gypsism. In July, ECRI published a report on
Portugal155 revealing that, according to NGO reports,
179
Fundamental rights: challenges and achievements in 2013
“more than half of Roma people have felt discriminated
against or badly treated by the police” and criticising
the national strategy for failing to address anti‑Gyp‑
syism as a specific form of racism. In late 2013, CAHROM
endorsed a thematic report on combating anti‑Gyp‑
syism, hate speech and hate crime against Roma.156
The Research Centre for Culture, Education and anti‑Gyp‑
syism in Mannheim, RomnoKher, commissioned a report
in July on anti‑Gypsyism and discrimination against Sinti
and Roma, which found widespread racism in all areas
of German social life, including in access to education,
employment and housing and when dealing with public
authorities.157 Right‑wing political parties’ use of
anti‑Gypsy speech in the 2013 federal election campaign
further reflected racial tensions.158
A study in Luxembourg159 also found negative attitudes
towards Roma and anti‑Gypsyism, with 26 % of resi‑
dents not wanting a Roma neighbour. In the Czech
Republic, a survey carried out in November 2012 found
that 71 % of respondents had a negative attitude
towards Roma, 10 % said that they were disgusted by
Roma and 43 % were afraid of Roma.160
Various incidents across Europe provide further ­evidence
of racism against Roma. In January, supporters of the
extremist party Golden Dawn allegedly attacked the
Roma settlement in Aitoliko, Greece, burning down six
unoccupied makeshift homes and destroying four vehi‑
cles.161 At the end of May, posters bearing the words
“Gypsies out of the town forever”162 appeared in the town.
Other incidents included Golden Dawn members’ verbal
attacks against Roma outside the Kalamata Messinia
hospital,163 and incidents in the Ari Messinia village.164
In the Czech Republic, the Municipal Court of Prague
recognised secondary victimisation in the existence of
damages beyond material ones, in the case of Roma
who suffered an attack by right‑wing extremists. It
overruled the sentence of the Court of First Instance. In
Hungary, the equality body punished an entertainment
establishment for refusing entrance to six Roma people
on account of their ethnicity.165
The Vilnius Regional Court in Lithuania sentenced
three people for a physical attack on a Roma community
member, as well as two verbal attacks, including
threats.166 An ongoing case in Łódź, Poland, deals with
an attack and threats to a Roma family in October.167
In Hungary, the Budapest Court of Justice convicted
three men of premeditated homicide, with the aggra‑
vating circumstance of cruelty, for the murders of
six members of the Roma community and the injury of
others in a series of nine attacks committed
in 2008 and 2009. A fourth man was convicted of being
an accessory to multiple homicide. The court recognised
a racial motivation behind the crimes.168
180
A Hungarian parliamentary inquiry into this case
­ stablished that the National Security Office repeatedly
e
failed to prioritise the six murders and to pass relevant
information to police investigators. The Chair of the
Parliament’s National Security Committee announced
in August that the Committee would initiate an inquiry
into the investigation of the 2008–2009 Roma murders.169
Roma have also been subject to police abuse. In
Slovakia, a Roma man with an intellectual disability
was wrongly left in police custody for over two months
following an incident in Moldava nad Bodvou.170
Similarly, the ECRI noted that in Finland “Roma are
victims of racial profiling and that there are cases of
police violence when members of this community are
arrested, but that not much information is available
on the subject.”171
Several incidents of racist hate speech directed at Roma
were reported in 2013. In Hungary, a founding member
of the ruling Fidesz party wrote an opinion column for
a newspaper in January which used highly offensive
language,172 comparing Roma to animals.173 Some NGOs
asked companies to pull their advertising from the
newspaper, the Magyar Hírlap, until it stopped pub‑
lishing racist, antisemitic or homophobic articles.
In France, in an interview published on 15 March in the
French daily paper Le Figaro, the Interior Minister said
that Roma migrants from Bulgaria and Romania living
in camps in France had no interest in integrating into
French society, “for cultural reasons or because they
are in the hands of begging or prostitution networks”.174
In Slovakia, the Supreme Court acquitted a politician
(who was later elected regional governor of Banska
Bystrica) of promoting racial hatred. The court consid‑
ered there was no intention to promote hatred towards
Roma. A Slovenian court sentenced a person for
inciting hatred, violence and intolerance in a comment
under a Roma‑related article in a news portal. In Spain,
a local Barcelona court acquitted the mayor of
Badalona of inciting discrimination, hatred and vio‑
lence for distributing flyers linking Romanian
Roma to criminality.
In Romania, the National Council for Combating
Discrimination investigated three cases regarding
alleged hate speech. The Mayor of Târgu Mureş was
fined for offensive remarks regarding Roma.
A ­councillor of Alba Iulia was fined for inciting racial
hatred for a statement made on a Facebook page,
where he supported the sterilisation of Roma women
and made derogatory remarks towards Roma. In the
third case, however, the national council considered
the Prime Minister’s statements on a BBC show,
linking criminality and Roma, acceptable under
freedom of expression.
Roma integration
In Italy, the Civil Court of Pescara declared that posters
and public statements by the Popolo della Libertà (PdL)
and the Lega Nord in Abruzzo linking Roma to crimi‑
nals were discriminatory.175
In Poland, an ongoing case is examining the possible
discriminatory nature of a Facebook page on which
there was incitement to use force against
Roma in Andrychów.176
In Italy, the Civil Court of Rome ordered the Ministry of
the Interior to destroy sensitive information on Italian
Roma. Police obtained these data, including finger‑
prints, in accordance with nomad emergency legislation
adopted in 2008, which the Council of State declared
unlawful in November 2011. The Supreme Court of
Cassation upheld the Council of State’s decision on
26 June. In Slovenia, it was reported that police officers,
judges and other public servants with frequent contact
with Roma received training to overcome prejudices
towards Roma population.177
Outlook
EU institutions and the Council of Europe will continue
to support Member States’ efforts to improve the
socio‑economic situation of Roma and to protect them
from fundamental rights violations. This will be particu‑
larly important in view of the ongoing economic crisis,
which affects social solidarity and adds ‘austerity’ argu‑
ments to anti‑Gypsy rhetoric.
on the political will and commitment of local and
regional authorities, because they are responsible for
translating national strategies into specific actions.
Learning from past experience, these authorities are
expected to rely less on one‑off projects and rather
target Roma explicitly in their mainstream activities
against poverty and social exclusion, one of the seven
flagship initiatives of Europe’s 2020 strategy. They
should also focus on gaining the trust of Roma com‑
munities through systematic efforts to ensure that they
can participate actively in an equitable and meaningful
way in actions that concern them. Successes on the
ground would, in turn, help win over greater public sup‑
port for Roma integration.
The social and economic integration of Roma, who for
centuries have been socially excluded and marginal‑
ised, will be a gradual process. It is, nevertheless,
important to show positive achievements and gradual
progress over time. In this regard, it is expected that
EU institutions and Member States will focus on devel‑
oping and implementing more effective monitoring
and evaluation processes.
Regular monitoring and evaluation of individual
­interventions and of the broader national Roma integra‑
tion strategies is needed. To this end, FRA will support
the Member States through its working party on Roma
integration developing and testing appropriate tools
and methods, and a common indicator framework to
measure progress in guaranteeing the fundamental
rights of Roma.
Evidence has shown that the successful implementation
and sustainability of Roma integration actions depend
181
Fundamental rights: challenges and achievements in 2013
Index of Member State references
EU Member State
Page
AT��������������������������������������������������������������������� 169, 172, 173, 174, 175, 178
BE����������������������������������������������������������������������������� 171, 173, 175, 176
BG����������������������������������������������������������� 170, 171, 172, 173, 175, 177, 178, 179, 180
CY������������������������������������������������������������������������� 173, 174, 175, 176, 178
CZ�������������������������������������������������������� 170, 171, 173, 174, 175, 176, 177, 178, 179, 180
DE����������������������������������������������������������������������������� 171, 174, 175, 180
DK������������������������������������������������������������������������������������ 175, 177
EE����������������������������������������������������������������������������������������� 172
EL����������������������������������������������������������� 168, 171, 173, 174, 175, 176, 177, 178, 180
ES������������������������������������������������������������������������������ 171, 173, 174, 180
FI������������������������������������������������������������������� 168, 171, 172, 173, 174, 178, 180
FR����������������������������������������������������������� 168, 171, 172, 173, 174, 175, 177, 178, 180
HR�������������������������������������������������������������� 171, 172, 173, 174, 175, 176, 177, 178
HU����������������������������������������������� 168, 170, 171, 172, 173, 174, 175, 176, 177, 178, 179, 180
IE�������������������������������������������������������������������������� 168, 172, 173, 177, 178
IT������������������������������������������������������������������� 170, 171, 173, 177, 178, 179, 181
LT�������������������������������������������������������������������������� 171, 175, 176, 179, 180
LU������������������������������������������������������������������������������ 173, 174, 177, 180
LV���������������������������������������������������������������������������������� 171, 174, 175
MT���������������������������������������������������������������������������������������� n/a
NL���������������������������������������������������������������������� 168, 171, 172, 173, 174, 177
PL����������������������������������������������������������� 170, 173, 174, 175, 176, 178, 179, 180, 181
PT����������������������������������������������������������� 168, 172, 173, 174, 175, 176, 177, 178, 179
RO������������������������������������������������������� 170, 171, 173, 174, 175, 176, 177, 178, 179, 180
SE������������������������������������������������������������������������������ 171, 172, 178, 179
SI��������������������������������������������������������������� 171, 174, 175, 176, 178, 179, 180, 181
SK�������������������������������������������������������� 170, 171, 173, 174, 175, 176, 177, 178, 179, 180
UK��������������������������������������������������������������������������������� 171, 176, 178
182
Roma integration
Endnotes
All hyperlinks accessed on 30 April 2014.
1
2
3
4
The use of the term ‘Roma’ in this FRA Annual report
follows the approach of the Council of Europe, which uses
the term to refer to “Roma, Sinti, Kale and related groups in
Europe, including Travellers and the Eastern groups (Dom
and Lom), and covers the wide diversity of the groups
concerned, including persons who identify themselves as
Gypsies.” Council of Europe (2012), Descriptive glossary of
terms relating to Roma issues, version dated 12 May 2012,
Strasbourg, http://hub.coe.int/c/document_library/get_fil
e?uuid=83de8f0d-ee32-40c9-b92e-e77edec4638
8&groupId=10227.
European Commission (2013), Communication from the
Commission to the European Economic and Social
Committee and the Committee of the Regions: Steps
forward in implementing National Roma Integration
Strategies, COM(2013) 454 final, Brussels, 26 June 2013,
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CO
M:2013:0454:FIN:EN:HTML.
European Commission (2013), Proposal for a Council
Recommendation on effective Roma integration measures
in the Member States, COM(2013) 460 final, Brussels,
26 June 2013, http://eur-lex.europa.eu/LexUriServ/
LexUriServ.do?uri=COM:2013:0460:FIN:EN:HTML.
Council of the European Union (2013), Council
Recommendation of 9 December 2013 on effective Roma
integration measures in the Member States, OJ 2013 C 278,
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:
C:2013:378:0001:0007:EN:PDF.
5
ROMED (2013), About ROMED, http://coe-romed.org/about.
6
Council of Europe (2013), ‘ROMACT programme launches in
Bulgaria and Romania’, Press release, 11 October 2013.
7
Council of Europe, Ad hoc committee of experts on Roma
issues (CAHROM) (2013), Thematic report on school
attendance of Roma children, in particular Roma girls,
CAHROM(2013)5, Strasbourg, 22 April 2013, http://hub.coe.
int/cahrom1.
8
9
CAHROM (2013), Thematic report on social housing for Roma
and legalisation of Roma settlements and houses,
CAHROM (2013)18, Strasbourg, 29 October 2013;
CAHROM (2013), Thematic report on encampment areas
and other issues relating to Travellers, CAHROM (2013)6,
Strasbourg, 30 April 2013, http://hub.coe.int/cahrom1.
CAHROM (2013), Thematic report on combating
anti‑Gypsyism, hate speech and hate crime against Roma,
CAHROM (2013)21, Strasbourg, 9 December 2013, http://hub.
coe.int/cahrom1.
10 Poland, Ministerstwo Spraw Wewnętrznych
i ­Administracji (2003), Program na rzecz społeczności rom‑
skiej w Polsce na lata 2004–2013.
11 Poland, Rada Ministrów(2013), Projekt Programu Integracji
Społeczności Romskiej w Polsce na Lata 2014–2020,
30 October 2013.
12 Romea (2013), ‘Czech Senate rejects EU efforts to improve
Romani integration’, 3 December 2013, http://www.romea.
cz/en/news/czech/czech-senate-rejects-eu-efforts-to
-improve-romani-integration.
13 Decade of Roma Inclusion (2013), Civil society monitoring
report on the implementation of the national Roma
integration strategy and decade action plan in 2012 in
Slovakia, Budapest, pp. 21–22, http://www.romadecade.org/
cms/upload/file/9270_file14_sk_civil-society-monitoringreport_en.pdf.
14 European Commission (2013), Communication from the
Commission to the European Economic and Social
Committee and the Committee of the Regions: Steps
forward in implementing national Roma integration
strategies, COM(2013) 454 final, Brussels, 26 June 2013,
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CO
M:2013:0454:FIN:EN:HTML.
15 Bulgaria, Национален съвет за сътрудничество по
етническите и интеграционните въпроси (2012),
Документи в помощ на областното планиране
в съответствие с Националната стратегия на
Република България за интегриране на ромите
(2012–2020 г.), 20 December 2012.
16 EUBusiness (2013), ‘Roma integration: Progress report and
recommendation’, 26 June 2013, http://www.eubusiness.
com/topics/living-in-eu/roma-2.
17 Germany, Abgeordnetenhaus Berlin (2013), Berliner
Aktionsplan zur Einbeziehung ausländischer Roma,
19 July 2013.
18 Sweden, Länsstyrelsen i Stockholm (2013), Romsk
inkludering, Stockholm.
19 Latvia (2012), Romu integrācijas politikas īstenošanas un
koordinācijas konsultatīvās padomes nolikums, 6 July 2012.
20 Slovenia, Zakon o romski skupnosti v Republiki Sloveniji,
ZRomS-1, 30 March 2007.
21 Spain, Ministerio de Sanidad, Servicios Sociales e Igualdad
(2012), Estrategia Nacional para la inclusión Social de la
Población Gitana 2012–2020, www.msssi.gob.es/ssi/
familiasInfancia/inclusionSocial/poblacionGitana/
estrategiaNacional.htm.
22 Italy, Giunta Regionale (2013), Istituzione del Tavolo
regionale per l’inclusione e l’integrazione sociale delle
persone Rom, Sinte e Camminanti e approvazione avviso
pubblico, 31 October 2013.
23 Associazione Nazione Rom (2013), ‘Rom Firenze: Richiesta
interrogazione parlamentare su omissioni della regione
Toscana’, Firenze Today, 24 May 2013.
24 Slovenia, Zakon o romski skupnosti v Republiki Sloveniji,
ZRomS-1, 30 March 2007.
25 Foyer (2013), Dienst Roma & Woonwagenbewoners
Werkjaar 2012: Het overzicht, Brussels, Foyer.
26 Netherlands, Minister van Buitenlandse Zaken (2013),
‘Nieuwe Commissievoorstellen en initiatieven van de
lidstaten van de Europese Unie’, Kamerstuk 22 112-1675,
30 August 2013, p. 5.
27 European Commission (2013), Communication from the
Commission to the European Economic and Social
Committee and the Committee of the Regions: Steps
forward in implementing national Roma integration
strategies, COM(2013) 454 final, Brussels, 26 June 2013.
28 Austria, Bundeskanzleramt, Dialogplattform zur Integration
der Roma bis 2020, www.bka.gv.at/site/7660/default.aspx.
29 Belgium, Oost‑Vlaams Diversiteitscentrum (OdiCE) (2013),
‘Interview with Stijn De Reu’, 18 October 2013.
30 Balogh, L., Daróczi, G., Ivány, B., Moldova, Z., Novoszádek, N.,
Kelemen, Á., Koltai, L., Somogyi, E., Szendrey, O. and
Teller, N. (2013), Updated civil society monitoring report
on the implementation of the national Roma integration
strategy and decade action plan in 2012 and 2013 in Hungary,
Budapest, Decade of Roma Inclusion Secretariat Foundation.
31 Jungtinių Tautų Vystymo Programos Lietuvoje, Lietuvos
čigonų bendrijos “Čigonų laužas”, Lietuvos sakaliukų
sąjungos, Lietuvos žmogaus teisių centro l.e.p. Lietuvos
vaikų fondo, Nacionalinio socialinės integracijos instituto,
Romų integracijos namų l.e., Romų visuomenės centro,
Socialinio įdarbinimo centro “SOPA” (2012), Romų ir su
romais dirbančių organizacijų rezoliucija dėl romų
integracijos strategijos Lietuvoje, 15 March 2012.
183
Fundamental rights: challenges and achievements in 2013
32 Slovakia, Vláda SR (2013), Stratégia SR v integrácii rómskych
komunít, Task C 4, adopted by Government Resolution
No. 1/2012, 11 January 2012.
33 Център за междуетнически диалог и толерантност
“Амалипе” (2013), ‘Roma organizations left NCCEII’,
10 April 2013.
34 European Parliament (2013), Resolution of 12 December 2013
on the progress made in the implementation of the National
Roma Integration Strategies (2013/2924(RSP)), Strasbourg,
www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//
TEXT+TA+P7-TA-2013-0594+0+DOC+XML+V0//EN.
35 Croatia, Government (2013), Odluka o osnivanju
Povjerenstva za praćenje provedbe Nacionalne strategije za
uključivanje Roma, za razdoblje od 2013. do 2020.,
4 July 2013.
36 Finland, Sosiaali- ja terveysministeriö (STM)/Social- och
hälsovårdsministeriet (SHM) (2009), Suomen
romanipoliittinen ohjelma: Työryhmän esitys/Politisk
program för romerna i Finland: Arbetsgruppens
promemoria.
37 Information provided by the Estonian Kultuuriministeerium.
38 Movisie (2013), Nulmeting: Ervaringen en meningen van
Roma, Sinti en professionals over de sociale inclusie van
Roma en Sinti in de domeinen van onderwijs, werk, wonen,
gezondheid en veiligheid, Utrecht, Movisie.
39 Hungary, Szociális Ágazati Információs Rendszer (2012),
Nemzeti Társadalmi Felzárkóztatási Stratégia indikátor
rendszer, Budapest.
40 Bulgaria, Project BG051РО001-6.2.11, ‘Development of
comprehensive measures for the integration of the most
marginalized communities among the ethnic minorities,
with a focus on the Roma’, http://www.mlsp.government.
bg/bg/projects/Publication_6.rar.
41 Törmä, S., Tuokkola, K. and Hurtig, J. (2013), Lähisuhde- ja
perheväkivalta romaninaisten kokemana: Avun tarpeet
yhteisössä ja palvelujärjestelmässä, Helsinki, Sosiaali- ja
terveysministeriö (STM).
42 The Local (2013), ‘Swedish police’s Roma register ruled
illegal’, 15 November 2013.
43 Regulation (EU) No. 1303/2013 of the European Parliament
and of the Council of 17 December 2013 laying down
common provisions on the European Agricultural Fund for
Rural Development and the European Maritime and
Fisheries Fund and laying down general provisions on the
European Regional Fund, the European Social Fund, the
Cohesion Fund and the European Maritime and Fisheries
Fund and repealing Council Regulation (EC) No. 1083/2006,
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:
L:2013:347:0320:0469:EN:PDF.
44 European Social Fund (ESF) Learning Network (2014),
Reinforcing Policy Learning for Roma Inclusion, Joint report
on the use of Structural Funds for Roma inclusion based on
country‑by‑country meetings – Key Findings and Proposals.
45 Pavee Point (2013), Travelling with austerity: Impacts of
cuts on Traveller projects and service, Dublin, Pavee Point.
46 Romania, Ministerul Fondurilor Europene (MFE) (2013),
Letter to the Centre for Legal Resources No. 35/L544,
11 November 2013.
47 FRA (European Union Agency for Fundamental Rights) (2014
forthcoming), Education: The situation of Roma in 11 EU
Member States. Roma survey – Data in focus, Luxembourg,
Publications Office of the European Union (Publications
Office).
48 Council of Europe, CAHROM (2013), Thematic report on
school attendance for Roma children, in particular Roma
girls, Strasbourg, Council of Europe, CAHROM (2013)5,
22 April 2013, http://hub.coe.int/web/coe-portal/cahrom1.
184
49 Austria, Vereinbarung gemäß Art. 15a B‑VG über die
Einführung der halbtägig kostenlosen und verpflichtenden
frühen Förderung in institutionellen
Kinderbetreuungseinrichtungen, BGBl. I Nr. 99/2009, last
amended by BGBl I Nr. 196/2013.
50 Czech Republic, Vláda České republiky (2013), Informace
o naplňování dekády romské integrace 2005–2015, Prague.
51 Rajala, S., Salonen, M., Blomerus, S. and Nissilä, L. (2011),
Romanioppilaiden perusopetuksen tilannekatsaus 2010–
2011 ja toimenpide‑ehdotukset, Helsinki, Opetushallitus.
52 See: www.emet.gov.hu/hatter_1/utravalo_macika.
53 Velto, U. (2013), ‘Mantova, le borse di studio per studenti
sinti e rom’, 24 January 2013.
54 Poland, Ministerstwo Administracji i Cyfryzacji (MAC)
(2013), Konkurs stypendialny dla uczniów romskich
szczególnie uzdolnionych w 2013 r., realizowany dzięki
dotacji Ministra Administracji i Cyfryzacji.
55 Lesnevskaya, A. (2013), ‘Milano, il comune sospende
scuolabus per bimbi rom: “A rischio presenza in classe”’, Il
Fatto Quotidiano, 10 November 2013.
56 Portugal, Programa Escolhas (2013), ‘Lançamento da
campanha “Boas Notas”’, 2 September 2013.
57 Bulgaria, Министерство на труда и социалната политика
(2009), BG051PO001- 4.1.03 – Интеграция на децата
и учениците от етническите малцинства
в образователната система, 19 October 2009.
58 Portugal (2013), Portaria n. 292-A/2012 que cria, no âmbito
da oferta formativa de cursos vocacionais no ensino básico,
uma experiência‑piloto de oferta destes cursos, no ano
letivo de 2012–2013 e regulamenta os termos e as condições
para o seu funcionamento, 26 September 2012.
59 Information provided by the Ministry of Education and
Culture.
60 Austria, Expertenrat für Integration (2013),
Integrationsbericht 2013, Vienna.
61 Cyprus (2012), Policy measures of Cyprus for the social
inclusion of Roma, January 2012.
62 Information provided by the Ministry of the Environment.
63 See: www.jelgava-soclp.lv/?sid=160.
64 Sweden, Arbetsmarknadsdepartementet (2013), ‘Fler ska få
läsa nationella minoritetsspråk’, Press release,
10 September 2013.
65 Sweden, Regeringen (2012), Regeringens strategi för romsk
inkludering 2012–2032, 16 February 2012.
66 Portugal (2012), Resolução do Conselho de
Ministros 68/2012 que procede à renovação, para o período
de 2013 a 2015, do Programa Escolhas, 9 August 2012.
67 See: Germany, Verband Deutscher Sinti und Roma e.V.,
Landesverband Schlesswig‑Holstein, www.sinti-roma-sh.
de/index.php/14-sample-data-articles?start=3.
68 See: Austria, Romano Centro, Lernhilfe und Elternarbeit,
www.romano-centro.org/index.php?option=com_conten
t&view=article&id=3%3Alernhilfe&catid=12%3Aprojekt
e&Itemid=4&lang=de.
69 See: Poland, Fundacja Edukacja dla Demokracji, Mniejszości
aktywne lokalnie, available at: http://mniejszosci.edudemo.
org.pl/dobre-praktyki/73-dzialaniamniejszosci/262-zawo
d-asystent-edukacji-romskiej.
70 Poland, Kultura Polskich Romów (2013), ‘Poznajmy się:
Edukacja dla integracji – materiały edukacyjne dla uczniów
romskich’, 8 October 2013.
71 Information provided by the Romanian Ministry of National
Education, Press Office.
Roma integration
72 See: Slovakia, Vzdelávanie pedagogických a odborných
zamestnancov, Vzdelávaním pedagogických zamestnancov
k inklúzii marginalizovaných rómskych komunít, http://web.
eduk.sk/?q=node/33.
73 Information provided upon request by the Slovenian
Ministry of Education, Science and Sport.
74 See: Sweden, Romanit.fi, available at: www.romanit.fi/.
75 Romania, Ministerul Educaţiei Naţionale, Biroul de Presă
(2013), Letter No. 170/BP/18.11.2013 sent by email to the
Centre for Legal Resources, on file with the national focal
point.
76 Latvia, Ventspils pilsētas dome (2013), Letter No 1-81/1383
to the Ombudsperson’s Office, 9 May 2013.
77 Council of Europe, European Commission against Racism
and Intolerance (ECRI) (2013), ECRI report on Finland (fourth
monitoring cycle), Strasbourg, Council of Europe, 9 July 2013,
www.coe.int/t/dghl/monitoring/ecri/Country-by-country/
Finland/FIN-CbC-IV-2013-019-ENG.pdf.
78 United Nations (UN), General Assembly (2013), Report of
the Special Rapporteur on contemporary forms of racism,
racial discrimination, xenophobia and related intolerance
Mutuma Ruteere. Addendum: Visit to Spain, 6 June 2013,
A/HRC/23/56/Add.2, www.ohchr.org/Documents/
HRBodies/HRCouncil/RegularSession/Session23/
A-HRC-23-56-Add-2_en.pdf.
79 Romea (2013), Czech School Inspectorate: One‑third of
“practical school” pupils are Romani, 3 December 2013.
80 Kertesi, G. and Kézdi, G. (2013), School segregation: School
choice and educational policies in 100 Hungarian Towns,
Budapest, Roma Education Fund, Section 5, http://www.
romaeducationfund.hu/news/ref/news-and-events/schoo
l-segregation-school-choice-and-educational-policies-100
-hungarian-tow.
81 Hungary, Egyenlő Bánásmód Hatóság (EBH) (2013), ’Case
340/2013’, Press release.
82 European Court of Human Rights (ECtHR), Horváth and Kiss
v. Hungary, No. 11146/11, 29 January 2013.
83 Romea (2013), ‘Czech School Inspectorate: One‑third of
“practical school” pupils are Romani’, 3 December 2013.
84 Council of Europe, Advisory committee on the FCNM (2013),
Second opinion on Latvia, Strasbourg, Council of Europe,
18 June 2013.
85 Council of Europe, Committee of Ministers (2013),
Resolution CM/ResCMN(2013)7 on the implementation of
the Framework Convention for the Protection of National
Minorities by Romania, 18 December 2013, https://wcd.coe.
int/ViewDoc.jsp?Ref=CM/ResCMN(2013)7&Languag
e=lanEnglish&Ver=original&BackColorInternet=DBDCF
2&BackColorIntranet=FDC864&BackColorLogged=FDC864.
86 Agence France‑Presse (2013), ‘Slovaks take first step to
integrating Roma in schools’, 27 September 2013.
87 European Roma Rights Centre (ERRC) (2013), Written
comments by the European Roma Rights Centre concerning
the Czech Republic for consideration by the European
Commission on the transposition and application of the Race
Directive and on the legal issues relevant to Roma
integration, ERRC, April 2013, p. 9, www.errc.org/cms/
upload/file/czech-republic-red-writte
n-comments-5-april-2013.pdf.
91 Messing, V. (ed), Bereményi, B. Kureková, L. Konsteková, J.
Pamporov, A. and Pop, F. (2013), ‘From benefits to brooms’,
Case studies report on the implementation of active labour
market policies for Roma at local level, Neujobs Working
Paper No. 19.3, Neujobs.
92 Council of the European Union (2013), Council
recommendation of 9 December 2013 on effective Roma
integration measures in the Member States, OJ 2013 C 378/01,
Point 1.4.
93 See: Austria, Volkshilfe Österreich, Roma‑Initiative THARA,
www.volkshilfe.at/thara.
94 See: Germany, Xenos Integration und Vielfalt, Junge Roma in
Berlin: Berufliche Orientierung zur besseren Integration in
den Arbeitsmarkt, www.xenos-panorama-bund.de/index.
php/projektlandkarte/projektprofile-lernort-1/33
3-junge-roma-in-berlin.
95 For more information, see : Belgium, SPP Intégration Sociale,
Lutte contre la Pauvreté, Economie Sociale et Politique des
Grandes Villes/POD Maatschappelijke Integratie,
Armoedebestrijding, Sociale Economie en Grootstedenbeleid
(2013), ‘Appel 2014 (année de transition) pour les promoteurs
du Programme opérationnel objectif Compétitivité régionale
et Emploi de l’Etat fédéral FSE 2007–2013, objectif 2, axe 1:
Projet Pilote Rom’, www.mi-is.be/sites/default/files/doc/
appel_a_projets_rom_2014_valide.doc.
96 Bulgaria, Министерство на труда и социалната политика
(2012), Национална програма „Активиране на неактивни
лица”, 18 October 2012.
97 Cyprus (2012), Policy measures of Cyprus for the social
inclusion of Roma, January 2012.
98 Portugal (2013), Portaria n.º 216-C/2012, primeira alteração
à Portaria n.º 1100/2010, de 22 de outubro, que aprova
o programa de formação em competências básicas e visa
a aquisição, por parte dos adultos, de competências básicas
de leitura, escrita, cálculo e uso de tecnologias de informação
e comunicação, 18 July 2013.
99 Germany, Romano Bündnis Berlin (2013), ‘Position des
Romano Bündnis (Berlin) zum „Berliner Aktionsplan zur
(gegen die) Einbeziehung ausländischer Roma“’.
100 Information provided by the Slovenian Ministry of Labour,
Family, Social Affairs and Equal Opportunities.
101 See: Hungary, Türr István Képző és Kutató Intézet (TKKI),
www.tkki.hu/page.php?mid=122.
102 O’Higgins, N. (2012), ‘Roma and non‑Roma in the labour
market in central and south eastern Europe’, Roma Inclusion
Working Papers, Bratislava, UNDP, p. 35.
103 Hungary, EBH (2011), Employee selection practice in the
mirror of discrimination, Budapest, EBH.
104 Koltai, L. (2013), A közfoglalkoztatottak jellemzői, Budapest,
Esély Labor Egyesület, pp. 32–33.
105 Finland, Vähemmistövaltuutettu (2013),
‘Vähemmistövaltuutetun romaniselvityksen
tutkimushaastattelut sujuivat onnistuneesti’, Press release,
22 August 2013.
106 Information provided upon request by the Greek
Government.
107 Czech Republic, Vláda České republiky (2013), Informace
o naplňování dekády romské integrace 2005–2015, Prague.
88 ECtHR, Lavida and Others v. Greece, No. 7973/10,
30 May 2013.
108 Croatia, Županijskog suda u Varaždinu, Gž-3684/12,
2 April 2013.
89 ECtHR, Sampani and Others v. Greece, No. 59608/09,
11 December 2012.
109 Ibid.
90 FRA (2014 forthcoming), Poverty and employment: The
situation of Roma in 11 EU Member States. Roma survey –
Data in focus, Luxembourg, Publications Office.
110 European Commission (2012), Social Committee and the
Committee of the Regions national Roma integration
strategies: A first step in the implementation of the EU
Framework, COM(2012) 226 final, Brussels, 21 May 2012.
185
Fundamental rights: challenges and achievements in 2013
111 Council of the European Union (2013), Council
recommendation of 9 December 2013 on effective Roma
integration measures in the Member States,
OJ 2013 C 378/01, Point 1.6.
112 See: Council of Europe, CAHROM (2013), Thematic report on
social housing for Roma and legalisation of Roma
settlements and houses, Strasbourg, Council of Europe,
29 October 2013, CAHROM (2013)18, http://hub.coe.int/
web/coe-portal/cahrom1.
113 Cyprus (2012), ‘Policy measures of Cyprus for the social
inclusion of Roma’, January 2012.
133 Slovenia, Zagovornik načela enakosti, Case ­070019/2013/1 before 0921-87/2011-UEM, 28 March 2013.
134 United Kingdom, High Court of England and Wales (2013),
R. (Knowles) v. the Secretary of State for Work and Pensions
Marc Willers and Desmond Rutledge Cottle, EWHC
19 (Admin), 17 January 2013.
135 Sweden, Värmland Nacka tingsrätt (2013), Case
No. ANM 2011/981, 13 May 2013.
114 Slovakia, Ministerstvo vnútra (2013), Zoznam schválených
žiadostí o dotácie, 23 October 2013.
136 See Bulgaria, Сдружение Национална мрежа на
здравните медиатори, www.zdravenmediator.net/index.
php?pagetype=text&page_id=37.
115 United Kingdom, Department for Communities and Local
Government (2012), ‘New site funding offers fairer deal for
Travellers and the settled community’, 7 January 2012.
137 Sweden, Regeringen (2012), Regeringens strategi för romsk
inkludering 2012–2032, 16 February 2012.
116 Bulgaria, Министерство на труда и социалната политика
(2012), BG051PO001-1/4/5/6.0.01 ‘Интегра’,
12 November 2012.
138 Slovakia, Úrad verejného zdravotníctva (2011), Informatívna
správa o efektívnosti výsledkov získaných plnením 2. Etapy
Programu podpory zdravia znevýhodnených rómskych
komunít na Slovensku na roky 2009–2015, pp. 10–12.
117 Decade of Roma Inclusion Secretariat Foundation (2013),
Civil society monitoring report on the implementation of the
national Roma integration strategy and decade action plan
in 2012 in the Czech Republic, Budapest, Decade of Roma
Inclusion Secretariat Foundation.
139 Czech Republic, Vláda České republiky (2013), Informace
o naplňování dekády romské integrace 2005–2015, Prague.
140 Hunter, N. (2013), ‘Mobile GP clinic for Roma community’,
Irish Health, 6 March 2013.
118 Hungary, Társadalmi Felzárkózásért Felelős Államtitkárság
(2013), Felzárkózási Stratégia – Nyomonkövetési
Beszámoló – 2013. Június, pp. 45–47.
141 Greece, Δίκτυο Ιατροκοινωνικών Κέντρων (2013)
‘Αλεξάνδρειας: Δωρεάν εμβολιασμός σε Τσιγγάνους
μαθητές σε Κορυφή και Παλαιοχώρα’, 28 March 2013.
119 Greece, Βουλή των Ελλήνων (2013), ‘Απάντηση σε
ερώτηση’, α.π. 2/78194/025/17, Press release,
September 2013.
142 Bulgaria, Министерство на здравеопазването (2006),
Министерството на здравеопазването получава пет
мобилни медицински кабинети и два флуорграфа за
обслужване на уязвимите малцинствени групи,
12 December 2006.
120 Slovakia, Ministerstvo vnútra SR (2013), ‘Atlas rómskych
komunít’.
121 ECRI (2013), ECRI report on Portugal (fourth monitoring
cycle), Strasbourg, Council of Europe, 9 July 2013, para. 92,
www.coe.int/t/dghl/monitoring/ecri/Country-by-country/
Portugal/PRT-CbC-IV-2013-020-ENG.pdf.
143 Ženské Kruhy (2013), ‘Naše aktivity´, 24 April 2013.
144 Slovenia, Zakon o zdravstvenem varstvu in zdravstvenem
zavarovanju (ZZVZZ), 12 February 1992 and subsequent
modifications.
122 Sweden, Diskrimineringsombudsmannen (2013),
Årsrapport 2012, Stockholm.
145 Sweden, Regeringen (2012), Regeringens strategi för romsk
inkludering 2012–2032, 16 February 2012.
123 ERRC (2014), ‘Census: Forced evictions of migrant Roma in
France’, 14 January 2014.
146 World Health Organization (WHO), Regional Office for Europe
(2013), Roma health mediation in Romania: Case study, Roma
Health Case Study Series no. 1, Copenhagen, WHO.
124 Amnesty International (2013) Public statement: Romanian
Government is failing homeless Roma in Eforie Sud,
EUR 39/021/2013, 22 October 2013.
125 France, Défenseur des Droits (2013), Bilan d’application de
la Circulaire Interministerielle du 26 août 2012 relative
à l’anticipation et à l’accompagnement des opérations
d’évacuation des campements illicites, 25 June 2013.
126 Council of Europe, European Committee of Social Rights
(ECSR) (2013), European Roma Rights Centre v. Ireland,
Complaint No. 100/2013, 19 April 2013.
127 ECtHR, Winterstein and Others v. France, No. 27013/07,
17 October 2013.
128 ECtHR, Yordanova and Others v. Bulgaria, No. 25446/06,
24 April 2012.
129 FRA (2013), Fundamental rights: Challenges and
achievements in 2012, Annual report, Luxembourg,
Publications Office, p. 198.
186
132 ERRC (2014), ‘Romanian court victory: Forced eviction of
Roma to Pata‑Rât was illegal’, 7 January 2014.
147 Finland, Tilastokeskus (2013), Hyvinvointikatsaus,
9 December 2013.
148 See: Amalipe, Centre for Interethnic Dialogue and Tolerance,
available at: www.totouchtheuntouchable.com.
149 Czech Republic, Vláda České republiky (2013), Informace
o naplňování dekády romské integrace 2005–2015, Prague.
150 See: Caritas Roma, www.caritasroma.it.
151 ECtHR, Z. K. v. Slovakia, No. 13606/11, lodged on
28 February 2011.
152 ECtHR, V. C. v. Slovakia, No. 18968/07, 8 November 2011.
153 ECtHR, N. B. v. Slovakia, No. 29518/10, 12 June 2012.
154 ECtHR, I. G. and Others v. Slovakia, No. 15966/04,
13 November 2012.
130 France, Tribunal administratif de Lyon, Ordonnance de
référé (2013) 1302169, 4 April 2013.
155 ECRI (2013), ECRI report on Portugal (fourth monitoring
cycle), Strasbourg, Council of Europe, 9 July 2013, www.coe.
int/t/dghl/monitoring/ecri/Country-by-country/Portugal/
PRT-CbC-IV-2013-020-ENG.pdf.
131 Greece, Συνήγορος του Πολίτη (2013), ‘Προσωρινή
αναβολή της κατεδάφισης του καταυλισμού στο Χαλάνδρι
και συνεργασία για την ολοκλήρωση της
μετεγκατάστασης των Ρομά, ζητά ο Συνήγορος του
Πολίτη’, Press release, 13 May 2013.
156 See: Council of Europe, CAHROM (2013), Thematic report on
combating anti‑Gypsyism, hate speech and hate crime
against Roma following a thematic visit to Hungary on
4–6 September 2013, CAHROM (2013)21, Strasbourg, Council
of Europe.
Roma integration
157 End, M. (2012), Antiziganismus, zum Stand der Forschung
und der Gegenstrategien, RomnoKher- Haus für Kultur,
Bildung und Antiziganismusforschung, Marburg.
169 Magyar Távirati Iroda (MTI) (2013), ‘A nemzetbiztonsági
bizottság is előveszi a romagyilkosságok ügyét’, HVG,
10 August 2013.
158 Endstation Rechts (2013), ‘Strafanzeigenflut gegen
NPD‑Wahlplakate’, 23 August 2013.
170 ERRC (2013), ‘Slovak investigation bodies disciplined after
mentally disabled Romani man “forgotten” in custody’,
14 October 2013.
159 CEFIS, ‘L’intégration au Luxembourg, indicateurs et
dynamiques sociales, Parcours de personnes originaires du
Cap‑Vert et de l’ex‑Yougoslavie’, RED, No. 14.
160 Hurrle, J. (2013), Monitorovací zpráva občanské společnosti
o plnění národní strategie integrace Romů a akčního plánu
dekády v České republice v roce 2012, Budapest, Decade of
Roma Inclusion Secretariat Foundation, p. 35.
161 Ta Nea (2013), ‘Νέα επεισόδια ξέσπασαν σε καταυλισμό
Ρομά στο Αιτωλικό’, 5 January 2013. According to the media,
the majority of those who attacked the Roma were
members of Golden Dawn; Kathimerini (2013), ‘Χρυσαυγίτες
κατά Ρομά στο Αιτωλικό’, 12 October 2013.
162 Planet Greece (2013), ‘Αφίσες κατά των τσιγγάνων στο
Αιτωλικό0’, 31 May 2013.
163 Ελευθερια (2013), ‘Επεισόδια Χρυσής Αυγής‑Τσιγγάνων
στο νοσοκομείο Καλαμάτας’, 9 April 2013.
164 Ελευθερια (2013), ‘Νύχτα τρόμου και επεισοδίων με...
Χρυσή Αυγή’, 10 August 2013.
165 Hungary, EBH (2013), ’Case 143/2013’, press release.
166 Lithuania, Vilniaus apygardos teismas, Decision No. ­1A-755195/2013, 18 December 2013.
167 Poland, Sąd Rejonowy Łódź- Śródmieście.
168 Hungary, Budapest Környéki Törvényszék (2013), ‘A
Budapest Környéki Törvényszék sajtóközleménye a 2013.
aug. 6-án hozott elsőfokú ítéletről’, press release,
7 August 2013.
171 ECRI (2013), ECRI report on Finland (fourth monitoring cycle),
Strasbourg, Council of Europe, 9 July 2013, p. 33, www.coe.
int/t/dghl/monitoring/ecri/Country-by-country/Finland/
FIN-CbC-IV-2013-019-ENG.pdf.
172 FRA (2013), Racism, discrimination, intolerance and
extremism: Learning from experiences in Greece and
Hungary, Luxembourg, Publications Office, p. 26.
173 World Jewish Congress (2013), ‘Leading Hungarian journalist
says Gypsies are “animals” and should be “cast out of
society”’, 10 January 2013.
174 EurActiv.com (2013), ‘French minister accused of racism
following Roma comment’, 18 March 2013.
175 Cronache di ordinario razzismo (2013), ‘Pescara: Pdl e Lega
Nord condannati per discriminazione’, 1 July 2013.
176 Zarząd Główny Stowarzyszenia Romów w Polsce (2013),
‘Oświadczenie Zarządu Głównego Stowarzyszenia Romów
w Polsce w sprawie artykułu „Gazety Wyborczej”
z dnia 3 i 4 września br. pt. 1,5 tys. internautów zażądało
wypędzenia Romów z Andrychowa’, 4 September 2013.
177 Slovenia, Republike Slovenije (2012), ‘Drugo poročilo Vlade
Republike Slovenije o položaju romske skupnosti v Sloveniji:
Poročilo o izvajanju Zakona o romski skupnosti v Republiki
Sloveniji (Uradni list RS, št. 33/2007) in Nacionalnega
programa ukrepov za Rome Vlade republike Slovenije za
obdobje 2010–2015’, Ljubljana, 21 November 2012.
187
Access to efficient and judicial cooperation
Rights of crime victims
Justice
Justice
8
Access to justice and judicial cooperation ���������������������������� 191
8.1. EU and other international actors take steps to
strengthen the rule of law and justice systems �������� 191
8.1.1. EU adopts new laws to facilitate access
to justice and judicial cooperation ���������������� 193
8.1.2. ECtHR and CJEU provide guidance
on effective access to justice ������������������������ 194
8.2. Member States reform court procedures
to facilitate access to justice ���������������������������������������� 197
8.2.1. Member States tackle length
of proceedings ������������������������������������������������ 197
8.2.2. Member States innovate with
e‑justice tools ������������������������������������������������� 199
8.3. Member States turn attention to non‑judicial
mechanisms ������������������������������������������������������������������ 201
Outlook ������������������������������������������������������������������������������������ 203
Fundamental rights: challenges and achievements in 2013
UN & CoE
January
February
28 March – United Nations (UN) General Assembly
adopts Resolution 67/187 on the UN Principles and
Guidelines on Access to Legal Aid in Criminal
Justice Systems
March
April
May
14–15 June – Council of Europe’s Venice Commission
issues an opinion on the Fourth Amendment to the
Fundamental Law of Hungary
24 June – UN Human Rights Council adopts
a resolution on national institutions for the
promotion and protection of human rights
June
July
August
September
21 October – In Del Río Prada v. Spain, the
European Court of Human Rights (ECtHR) finds it
unlawful to extend detention retroactively
because of a change in case law
EU
17 January – Court of Justice of the European Union (CJEU) provides
further guidelines on legal standing of individuals in direct actions for
annulment of EU legislative acts in Inuit Tapiriit Kanatami and Others
29 January – In Ciprian Vasile Radu, the CJEU addresses the role of
fundamental rights in the execution of the European arrest warrant
30 January – The European Commission issues a report on Romania
under the Cooperation and Verification Mechanism
January
26 February – In Stefano Melloni v. Ministerion Fiscal, the CJEU
elaborates on the role of fundamental rights in the execution of the
European arrest warrant
26 February – In Åklagaren v. Hans Åkerberg Fransson, the CJEU
confirms that imposing a combination of non‑criminal tax penalties and
criminal penalties is not contrary to the principle that no one shall be
tried twice for the same offence
February
27 March – European Commission publishes the Justice Scoreboard
March
April
9–10 May – Irish Presidency of the Council of the European Union hosts
a conference on ‘A Europe of equal citizens: Equality, fundamental
rights and the rule of law’
May
7 June – Justice and Home Affairs Council issues Conclusions on
fundamental rights and the rule of law
October
June
4 November – In Anghel v. Italy, the ECtHR finds
a violation of the right to a fair trial when a legal
representative is not appointed in a concrete and
effective manner
17 July – European Commission submits a proposal for a regulation on
the establishment of the European Public Prosecutor’s Office (EPPO)
21 November – UN General Assembly Third
Committee adopts a resolution on national human
rights institutions
November
4 December – Council of Europe Commissioner for
Human Rights releases a research paper on the
economic crisis’s impact on human rights
protection
December
July
August
September
22 October – Measures D and C1 of the EU Criminal Procedure
Roadmap – the right of access to a lawyer – are adopted
October
7 November – In DAS Nederlandse Rechtsbijstand
Verzekeringsmaatschappij NV, the CJEU provides guidance on how to
interpret the insured’s right to choose a lawyer
21 November – European Commission publishes the Flash
Eurobarometer Survey on Justice in the EU
27 November – European Commission adopts the ‘Procedural Rights
Package’ including five legal measures to strengthen procedural
safeguards for citizens in criminal proceedings (including part of
Measure C2 of the EU Criminal Procedure Roadmap)
November
December
190
8
Access to justice and judicial
cooperation
The need to improve the efficiency and transparency of national justice systems and enhance the
implementation of existing fundamental rights instruments, the search for an effective rule of law mechanism,
and further budget cuts extending beyond courts to non‑judicial mechanisms – these were some of the main
challenges in the area of access to justice and judicial cooperation in 2013. Positively, several EU Member States
acted to modernise and further develop e‑justice to tackle overly long proceedings. They also continued to
reform non‑judicial bodies with a human rights remit to strengthen their fundamental rights role. At the EU level,
a specific tool – a ‘Justice Scoreboard’ – was introduced to boost the efficiency of national judicial systems, and
the European Commission opened the debate on improvements in the area of justice needed in the next
five years after the Stockholm Programme.
8.1. EU and other
international actors
take steps to
strengthen the rule of
law and justice systems
International and European actors focused in 2013 on
strengthening the rule of law, specifically on the
quality, independence and efficiency of judicial sys‑
tems (see also the Focus and Chapter 10 on EU Member
States and international obligations).
The EU’s Justice and Home Affairs Council adopted
specific conclusions on fundamental rights and the
rule of law on 7 June 2013. Drawing upon the related
discussion at the Ireland’s EU Presidency conference
‘A Europe of equal citizens: Equality, fundamental
rights and the rule of law’, jointly organised with FRA,
the Irish Equality Authority and the Human Rights
Commission,1 the council emphasised that respecting
the rule of law is a prerequisite for the protection of
fundamental rights and that any work in this context
shall “make full use of existing mechanisms and coop‑
erate with other relevant EU and international bodies,
particularly with the Council of Europe, in view of its
Key developments in the area of access to justice
and judicial cooperation
• The rule of law and the issue of overall accessibility of
justice for all persons in the EU, including a full
understanding of one’s rights and the means to realise
them in times of ongoing austerity measures, remain high
on the EU agenda in 2013.
• The European Commission starts a debate on the shape of
the EU’s justice policy after the Stockholm Programme in
the area of justice and home affairs, which comes to a close
at the end of 2014.
• The evolving ‘Justice Scoreboard’ tool, which aims to
enhance the effective functioning of national justice
systems across the EU, is introduced.
• The criminal procedure roadmap of the EU takes another
step forward with the adoption of the Directive on the right
of access to a lawyer.
• EU Member States continue to introduce initiatives to
restructure national justice systems, including through the
use of e‑justice tools.
• The UN General Assembly takes a landmark step, issuing
a resolution calling for a strengthened role for national
human rights institutions within the UN system.
191
Fundamental rights: challenges and achievements in 2013
key role in relation to promotion and protection of
human rights, democracy and the rule of law.”
FRA ACTIVITY
Promoting the rule of law
The 2013 FRA Symposium, which focused on pro‑
moting the rule of law, found that any potential
assessment should look not only at available laws
and institutions (structures) or policies (process‑
es) but also, and especially, at the situation on the
ground (outcome). Participants considered that
the rule of law should be measured not only in
EU Member States but also in the EU and its insti‑
tutions. These and other conclusions from the
symposium were also issued as a Council docu‑
ment to further inform the discussions of the
Council of the European Union on the rule of law.
Source: http://fra.europa.eu/sites/default/files/fra-2013-4thannual-symposium-report.pdf
In the follow‑up report on the rule of law
recommendations made to Romania under the
­
Co‑operation and Verification Mechanism in 2012,2
the European Commission welcomed steps taken to
restore respect for the constitution and the decisions
of the Constitutional Court, yet noted that the “lack
of respect for the independence of the judiciary and
the instability faced by judicial institutions remain
a source of concern”.3
In June 2013, the Council of Europe expert body, the
Venice Commission, issued an opinion on Hungary on
the compatibility of constitutional amendments with
the principle of the rule of law. The Venice Commission
examined the Fourth Amendment to the Fundamental
Law of Hungary, adopted in March 20134 – an adop‑
tion preceded by a critical statement issued jointly by
the President of the European Commission and the
Secretary General of the Council of Europe, raising
concerns about just that compatibility. The Venice
Commission opinion raises new concerns with respect
to the rule of law and independence of the judiciary.5
It pointed in particular to the dominant position of the
President of the National Judicial Office compared with
the National Judicial Council, to the court case transfer
system and to the limitations imposed on the role of
the Constitutional Court. The European Parliament6
and the UN High Commissioner for Human Rights,7
among others, subsequently reiterated these concerns
and urged the Hungarian government to address all of
the issues the Venice Commission had raised over the
last few years. The Hungarian Parliament responded
by adopting the Fifth Amendment to the Fundamental
Law of Hungary on 16 September 2013 to address
some of the controversial elements of the previous
amendment. It repealed, for example, the rules on
court case transfers.8
192
According to the European Commission 2013 Flash
Eurobarometer Survey on Justice in the EU,9 public
perceptions about justice and the rule of law across
the EU are consistently low in the Czech Republic,
Greece, Italy and Spain. Most respondents think there
are large differences between national judicial sys‑
tems in terms of quality (58 %), efficiency (58 %) and
independence (52 %). Majorities in Bulgaria (71 %),
Slovenia (70 %) and Romania (69 %) think their jus‑
tice system is worse than others in the EU.
In addition to the rule of law discussion, the issue of
overall accessibility of justice for all persons in the EU,
including a full understanding of one’s rights and the
means to realise them in times of ongoing austerity
measures, also continued to be high on the agenda
in 2013. A trend of cutting legal aid or justice budgets
in general continued across the EU Member States,
including Ireland,10 Portugal11 and the United Kingdom.12
“[Calls] on governments to pursue all the necessary
measures to ensure access to justice for all, with
a particular focus on people living in poverty, who need
to have a full understanding of their rights and the means
to realise them.”
European Parliament (2013), Resolution on the impact of the financial and
economic crisis on human rights, 18 April 2013
On 4 
December 
2013, the Council of Europe
Commissioner for Human Rights pointed out that
national decisions on austerity measures should not
have a disproportionate impact on the human rights
protection system. The commissioner stressed the
need to grant effective access to justice to all during
economic downturns by maintaining an effective and
independent judiciary and a legal aid system.13
‘Justice for growth’ issues aim to support the economy
and its growth. They include the effectiveness of jus‑
tice systems, the independence of justice and the
European area of justice based on mutual trust. Such
issues and the rule of law were at the heart of discus‑
sions on the future of EU justice policy. These discus‑
sions, held at the ‘Assises de la Justice’14 hosted by the
European Commission in November 2013, are meant
to feed into the European Commission’s new plan for
EU justice policy, after the present EU programme for
justice and home affairs, the Stockholm Programme,
concludes. FRA contributed to the discussions by sub‑
mitting a paper and following up the ensuing consulta‑
tion process with a more detailed document on the
future role of fundamental rights in EU justice and
home affairs policies.
EU and Member States move to enhance
effectiveness of national justice systems
In the context of its ‘justice for growth’ agenda, the
European Commission – drawing mainly on the expertise
Access to justice and judicial cooperation
of the Council of Europe Commission for the Efficiency of
Justice15 – also introduced its new tool, the ‘Justice
Scoreboard’ (see also the Focus). Through this tool, the
European Commission aims to enhance the effective
functioning of EU national justice systems. It will do so
by regularly bringing together a variety of data – in par‑
ticular, data available about civil and commercial cases –
to identify any shortcomings and hence support reforms
in national justice systems.16 The 2013 Justice Scoreboard’s
data include the business‑friendliness of each country’s
justice system; justice resources, including budget alloca‑
tion, human resources, workload, use and accessibility of
justice such as length and cost of proceedings; and the
use of simplified and alternative dispute resolution pro‑
cedures. The EU Justice Scoreboard is intended to be
a tool that will gradually extend over more areas.
8.1.1.
EU adopts new laws to facilitate
access to justice and judicial
cooperation
Progress on the criminal procedures roadmap c­ ontinued,
with new instruments adopted or proposed.17 In 2013,
the Council of the EU adopted a directive on the right of
access to a lawyer (originally intended as Measure D
and a part of Measure C (C1) of the roadmap).18 The
directive sets out minimum rules on the rights: to access
a lawyer in criminal proceedings and in European arrest
warrant (EAW) proceedings from the earliest stage until
proceedings conclude; to have a third party informed
upon deprivation of liberty; and to communicate with
third persons and with consular authorities while
deprived of liberty. Member States have three years to
implement this instrument.
In November 2013, the Commission presented
a package of five legal measures to strengthen the
procedural safeguards for citizens in criminal proceed‑
ings, including part of Measure C2 on legal aid. It
consists of three proposals for directives on:
•• strengthening certain aspects of the presumption
of innocence and of the right to be present at trial
in criminal proceedings;19
•• special safeguards for children suspected or
­accused in criminal proceedings (see Chapter 4
on the rights of the child and the protection of
children);20
•• provisional legal aid (at the early stages of the
­proceedings and until the competent authority has
made a final decision on the application for legal
aid) for suspects or accused persons deprived of
liberty and legal aid in EAW proceedings.21
These directives would apply both to domestic and
cross‑border proceedings. Two European Commission
recommendations accompany the three proposals for
directives and focus on:
•• procedural safeguards for vulnerable persons
suspected or accused in criminal proceedings,22
­
aiming to contribute to raising standards on the
procedural rights of vulnerable adults and to en‑
hancing mutual trust;
•• the right to legal aid for suspects or accused ­persons
in criminal proceedings, aiming to provide common
objective criteria to be taken into account when as‑
sessing eligibility for legal aid.23
Figure 8.1: Criminal procedures roadmap
DEC 2009
JUL 2010
JUN 2011
2013
2013
Treaty of Lisbon /
Stockholm
Programme
(into force)
Measure B:
information
on rights
(proposal)
Measures C1 + D:
access to lawyer
and communication
(proposal)
Measure E:
safeguards for
vulnerable
(proposal)
Measures C1 + D:
right to access
to a lawyer
and communication
(adopted)
NOV 2009
MAR 2010
OCT 2010
JUN 2011
MAY 2012
NOV 2013
Roadmap
(adopted)
Measure A:
translation and
interpretation
(proposal)
Measure A:
(adopted)
Measure F:
green paper
on detention
(published)
Measure B:
(adopted)
Measure C2:
legal aid,
presumption
of innocence,
right to be present
at trial and
protection of
children
(proposal)
Source: FRA, 2013
193
Fundamental rights: challenges and achievements in 2013
The proposal for a regulation on the establishment of
the European Public Prosecutor’s Office (EPPO) pre‑
sented a novel development in the area of criminal
law in 2013. The proposal envisages a decentralised
EU prosecution office with exclusive competence to
investigate, prosecute and bring to judgment crimes
against the EU’s financial interests.24 European
Parliament discussions focused on the proposal’s
safeguards to guarantee the rights of individuals
involved in EPPO’s investigations as laid down in
national law, Union law and the Charter of
Fundamental Rights of the European Union.
FRA ACTIVITY
Establishing the European Public
Prosecutors’ Office – fundamental
rights concerns
In response to a European Parliament request of
20 December 2013, FRA examined the European
Commission’s proposal for a regulation to estab‑
lish a European Public Prosecutor’s Office. FRA
looked at the proposal’s compatibility with the EU
Charter of Fundamental Rights, in particular with
the rights to an effective remedy and to a fair trial
(Article 47); presumption of innocence and right to
defence (Article 48); legality and proportionality
(Article 49); and the provision that no one shall be
tried twice for the same offence, or double jeop‑
ardy (Article 50). FRA’s opinion analysed the sub‑
stantive provisions of the proposal, focusing on
five main issues:
1. judicial review and other safeguards;
2. defence rights;
3. victims’ rights;
4. legal clarity;
5. regular assessment and trust.
It raised a number of fundamental rights concerns,
particularly with regard to the complex and at
times unclear interaction between the national
and EU levels. The opinion underlined the impor‑
tance of judicial review of EPPO activities, and
raised the question of where the responsibility for
such reviews should lie.
Source: FRA (2014), Opinion of the European Union Agency for
Fundamental Rights on a proposal to establish a European Public
Prosecutor’s Office, FRA Opinion – 1/2014, Vienna, available at:
http://fra.europa.eu/en/opinion/2014/fra-opinion-proposal-establisheuropean-public-prosecutors-office
Another 2013 development aimed to improve access to
justice in civil proceedings by expanding the scope of
those who are allowed to bring a claim before a court
or other redress mechanisms, known as broadening
legal standing. The European Commission adopted
on 11 June 2013 a series of common, non‑binding
194
principles for a collective redress mechanism, under
which a single court action in an EU Member State
addresses many individual claims relating to the
same case collectively.25 National redress mechanisms
should be available in different areas where EU law
grants r­ights to citizens and companies, notably in
consumer p
­rotection, competition, environmental
­protection and financial services.
In addition, on 21 May 2013 the Council adopted
two new binding EU instruments allowing disputes
over online transactions to be settled faster and at less
cost than through the courts: a Directive on alternative
dispute resolution for consumer disputes (ADR)26 and
a Regulation on online dispute resolution for consumer
disputes (ODR).27 The directive is expected to give all
EU consumers the chance to resolve domestic and
cross‑border disputes without going to court, regard‑
less of product or service type or place of purchase. To
address the particular needs of online consumers, the
regulation will create an EU‑monitored online platform
which will allow disputes to be resolved online and
within a set period of time. Member States are required
to implement the new rules by July 2015, after which
the ODR platform is expected to be introduced within
six months by January 2016.
The European Commission proposed a regulation to
make individuals’ access to justice easier, by harmo‑
nising and simplifying procedure for small civil and com‑
mercial claims disputes. The proposed regulation would
also raise the claim threshold to €10,000 from €2,000,
enabling a greater number of cases to be handled under
the procedure.28 The procedure would predominantly
apply to cross‑border cases and not to those where
a single Member State covers several elements of the
case, such as when the court’s jurisdiction and the par‑
ties’ domicile are in the same Member State. In addition,
the European Commission held a public consultation on
options for improving access to justice at Member States
level in environmental matters.29
Table 8.1 summarises the main features of EU
­secondary legal instruments discussed in this section
that aim to improve access to justice.
8.1.2.
ECtHR and CJEU provide
guidance on effective access
to justice
Both the CJEU and the ECtHR delivered rulings on
numerous access to justice‑related cases in 2013.
The rulings included cases, as in 2012, addressing
various fair trial aspects and defence rights in rela‑
tion to criminal proceedings. The courts also provided
important guidance on safeguarding the right of
Access to justice and judicial cooperation
Table 8.1: EU secondary law proposed, adopted or revised in 2013, aiming to facilitate access to justice
Instrument
Directive on alternative
dispute resolution (ADR)
for consumer disputes
(2013/11/EU)
Regulation on online
dispute resolution (ODR)
for consumer disputes
(No. 524/2013)
Commission Recommen‑
dation on common
principles for injunctive
and compensatory
collective redress mecha‑
nisms in the Member
States concerning viola‑
tions of rights granted
under Union law
(2013/396/EU)
Directive on the right of
access to a lawyer
(2013/48/EU)
Proposal for a regulation
amending regulation
establishing a European
Small Claims Procedure
and regulation creating
a European order for
payment procedure
Proposal for a directive on
the strengthening of the
presumption of innocence
and of the right to be
present at trial in criminal
proceedings
Status
Main issues facilitating access to justice
Adopted on
21 May 2013
• Make flexible and less costly out‑of‑court settlement
procedure, ADR, available for all contractual disputes in every
market sector (except for health and education) and in every
Member State
• Introduce quality criteria for all ADR entities to guarantee that
they operate in an effective, fair, independent and transpar‑
ent way
• Require traders to inform consumers about ADR and require
Member States to ensure that consumers can obtain assis‑
tance when they are involved in a cross‑border dispute
Adopted on
21 May 2013
• Establish EU‑wide dispute resolution platform (ODR platform)
as a single entry point free of charge and in all EU official
languages, enabling ADR online in relation to disputes arising
from online purchases
• Require a network of online dispute resolution facilitators
consisting of one contact point in each Member State to
provide support to the resolution of disputes submitted via
the ODR platform
• Require traders to inform consumers about the ODR platform
Adopted
11 June 2013
• Require collective redress mechanism in place for injunctive
and compensatory relief in a case of infringement of rights
granted under Union law, which would be fair, equitable,
timely and not prohibitively expensive
• Determine requirements that entities representing claimants
should meet to ensure appropriate representation of
claimants
• Recommend establishment of publicly available registers,
which would set information dissemination rules and allow
potential claimants to join collective actions
Adopted on
6 November 2013
• Provide for minimum rules on the right of access to a lawyer
in criminal proceedings from the first stage of police ques‑
tioning and throughout criminal proceedings
• Provide for the right of an individual subject to a EAW to legal
advice in both the country where the arrest is carried out and
the one where it was issued (dual legal representation)
• Provide for the right to have a third party (such as a family
member) informed upon deprivation of liberty as well as to
communicate with consular authorities while deprived of
liberty
Proposed on
19 November 2013
• Raise threshold of cases defined as ‘small claims’
from €2,000 to €10,000, allowing a much wider range of
disputes to be resolved through a small claims procedure
• Widen definition of ‘cross‑border’ cases to enable a greater
number of cases with a cross‑border dimension to be solved
through a small claims procedure
• Require better information for individuals on court fees
related to the small claims procedure, on where to obtain
assistance in filling in the application and on how to apply for
a review of the judgment in special circumstances
Proposed on
27 November 2013
• Guarantee that guilt cannot be inferred by any official
decisions or statements before a final conviction
• Guarantee that the burden of proof is placed on the prosecu‑
tion and any doubt benefits the suspect or accused person
• Guarantee that the right to remain silent is maintained and
not used against suspects to secure conviction and that the
accused has the right to be present at the trial
195
Fundamental rights: challenges and achievements in 2013
Table 8.1: (continued)
Instrument
Proposal for a directive on
procedural safeguards for
children suspected or
accused in criminal
proceedings
Proposal for a directive on
provisional legal aid for
suspects or accused
persons deprived of
liberty and legal aid in
European arrest warrant
proceedings
Status
Main issues facilitating access to justice
Proposed on
27 November 2013
• Guarantee mandatory access by children to a lawyer at all
stages
• Guarantee that children cannot waive their right to be
assisted by a lawyer
• Introduce special procedural safeguards, such as the right of
children to be promptly informed about their rights, to be
assisted by their parents (or other appropriate persons), not
to be questioned in public hearings, to receive medical
examination and, if deprived of liberty, to be kept apart from
adult inmates
Proposed on
27 November 2013
• Guarantee access to a lawyer from the very beginning
through the form of ‘provisional legal aid’, until the competent
authority has made a final decision on the application for
legal aid
• Guarantee access to legal aid by suspects at the early stages
of criminal proceedings (when accused citizens are particu‑
larly vulnerable, especially if deprived of liberty in police
custody or pretrial detention)
• Guarantee legal aid for people arrested under a European
arrest warrant in the light of the need to guarantee dual legal
representation
Source: FRA, 2013
access to courts through effective access to legal aid
and legal representation.
In the Radu judgment,30 the CJEU provided further
guidance in the area of judicial cooperation in criminal
matters under the EAW procedure, specifically on the
person’s right to be heard in line with the standards
of the Charter of Fundamental Rights on judicial
remedy and fair trial. The CJEU confirmed that a viola‑
tion of the requested person’s right to be heard is not
among the grounds available to Member States to
refuse to execute an EAW. This does not render the
Framework Decision incompatible with the funda‑
mental rights as set out in the Charter, in particular the
right to an effective judicial remedy and to a fair trial.
Articles 47 and 48 of the Charter do not require “that
a judicial authority of a Member State should be able
to refuse to execute a European arrest warrant issued
for the purposes of conducting a criminal prosecution
on the ground that the requested person was not
heard by the issuing judicial authorities before that
arrest warrant was issued”. According to the CJEU,
such a conclusion would run counter to the objective
of the EAW system to simplify and speed up extradi‑
tion proceedings between EU Member States. In any
case, executing Member States observe the right
to be heard.
The CJEU maintained the same line of thought in its
Melloni judgment.31 According to the CJEU, the judicial
authorities cannot make the execution of an EAW
conditional upon a fresh hearing just because the
196
warrant was issued without the accused’s presence at
court. Although the right of the accused to appear in
person at the trial is an essential component of the
right to a fair trial, this right is not absolute. The
accused may waive this right, provided such waiver
meets required safeguards and does not run counter
to any important public interest. The EAW framework
decision therefore disregards neither the right to an
effective judicial remedy and to a fair trial nor the
rights of the defence guaranteed by Articles 47 and
48 (2) of the Charter, respectively.
In the Åklagaren v. Hans Åkerberg Fransson case,
Swedish tax authorities accused Mr Åkerberg Fransson
of breaching his tax declaration obligations, which
resulted in a loss of state revenue from various taxes.32
The CJEU was asked if criminal charges must be dis‑
missed on the ground that the accused had already
faced tax penalties for the same acts. The CJEU con‑
cluded that the principle preventing a person from
being punished twice under the Charter does not
preclude an EU Member State from imposing, for the
same acts of evading declaration obligations in the
field of value‑added tax, a combination of criminal
penalties and non‑criminal penalties.
In
DAS
Nederlandse
Rechtsbijstand
Verzekeringsmaatschappij NV, the CJEU provided
guidance on how to interpret an insured person’s
right to choose a lawyer on legal expenses insurance
under Article 4(1) of Directive 87/344. In this case,
Jan Sneller was dismissed from his job. He wanted
Access to justice and judicial cooperation
to bring an unfair dismissal claim in the Netherlands
against his employer using his DAS legal expenses
insurance. The CJEU held that the insured’s freedom
to choose legal representation took precedence over
the insurance contract’s restrictions, which attempted
to impose the use of the insurance company’s own
staff lawyers over that of an outside lawyer chosen
by the insured person.33
The ECtHR also provided guidance on states’
­obligations regarding access to justice under the ECHR.
In Anghel v. Italy, the applicant complained that delays
in granting him legal aid had infringed his right to
appeal against the decision of the national court,
denying him an effective remedy as required by the
ECHR.34 The ECtHR held that the deficient and contra‑
dictory information given by the Council of the Bar
Association and the Ministry of Justice about which
remedy was available and which time limit was appli‑
cable contributed substantially to the applicant’s
unsuccessful attempt to appeal. As for the errors
made by the appointed legal aid lawyers in respect of
procedural formalities, the ECtHR held that “such
errors may, when critical to a person’s access to court,
and when incurable in so far as they are not made
good by actions of the authorities or the courts them‑
selves, result in a lack of practical and effective rep‑
resentation which incurs the State’s liability under the
Convention”. The ECtHR concluded that the applicant
was effectively prevented from exercising his right of
access to a court through a legal representative
appointed under the national legal aid system. There
was accordingly a violation of Article 6 of the ECHR.
Another case brought before the ECtHR, Del Río Prada
v. Spain, concerned the postponed release of a pris‑
oner convicted of terrorist offences. Based on a new
approach adopted by the Spanish Supreme Court
(Tribunal Supremo), under which reductions in sen‑
tences were applied to individual offences rather than
to the entire time served,35 the applicant’s release was
postponed by nine years. The ECtHR (Grand Chamber)
considered that the applicant could not have foreseen
either that the Supreme Court would depart from its
previous case law in February 2006, or that this
change in approach would be applied to her and would
result in the postponement of her release by almost
nine years. Accordingly, there was a violation of the
right to no punishment without law (Article 7 of the
ECHR) as well as a violation of unlawful detention
(Article 5 of the ECHR).
In addition to these case law developments, the ECtHR
amended the Rules of Court on 6 May 2013 to help the
court deal with its workload as efficiently as possible,
thus enhancing access to justice at a procedural level.36
The new Rule 47 introduces more stringent admissi‑
bility criteria on the form and content of initial com‑
plaints and requires that a complaint be lodged within
a maximum of six months after the national court’s
final decision. Rule 47 will come into force as of
1 January 2014, that is, before Protocol 15 to the ECHR,
which will further amend the ECtHR’s admissibility
criteria, enters into force (see Chapter 10 on EU
Member States and international obligations).
8.2. Member States reform
court procedures to
facilitate access
to justice
8.2.1.
Member States tackle length of
proceedings
EU Member States took steps to improve court
­procedures, focusing in particular on overly long pro‑
cedures, an issue of long standing which bedevils
many national systems. They pursued a variety of
methods to address the problem, turning to legislation
and non‑legislative solutions as well as improving the
implementation of previously introduced measures.
They also innovated court procedures through devel‑
oping e‑tools, in part to streamline procedures as well
as to cut costs.
Article 47 of the Charter of Fundamental Rights of the
European Union provides for the right to a hearing
within a reasonable time. The reasonable time guar‑
antee underlines the importance of rendering justice
without delay. Although EU Member States adopted
several measures to speed up trials in previous years
(see, for example, the FRA Annual report 2012), the
relevant data from 2013 (Tables 8.2 and 8.3) confirm
that much more time and effort will be needed, with
all justice sector actors working in synergy, to over‑
come this structural problem.
Table 8.2 provides information on the number of
­judgments related to the length of proceedings as well
as to fair trial (Article 6 of the ECHR) in general.
Table 8.3 provides more specific data on the number
of cases under Article 6 of the ECHR concluded by
friendly settlements between the government and
the applicant or government declarations unilaterally
acknowledging the actual violation.
Several EU Member States continued to experience
excessive delays of over five years in executing the
ECtHR’s judgments (Table 8.4). In 2013, as in 2012,
Bulgaria, Greece, Italy, Poland and Romania had the
largest numbers of pending leading cases, or
non‑repetitive cases that relate to general or struc‑
tural problems that only legislation can address (see
FRA Annual report 2012, Table 8.2 and 10.7).
197
Fundamental rights: challenges and achievements in 2013
Table 8.2: Number of ECtHR judgments in 2013 and fair‑trial‑related violations, by EU Member State
AT
BE
BG
CY
CZ
DE
DK
EE
EL
ES
FI
FR
HR
ECtHR judgments finding
at least one violation
10
(10)
6
(6)
25
(58)
1
(0)
8
(10)
3
(11)
0
(0)
5
(2)
32
(52)
7
(8)
3
(2)
28
(19)
22
(19)
Violations of the
right to a fair trial
4
(0)
1
(1)
9
(8)
0
(0)
4
(2)
0
(1)
0
(0)
3
(1)
2
(1)
5
(3)
0
(0)
5
(3)
10
(2)
Violations of length
of proceedings
2
(3)
0
(1)
3
(17)
0
(0)
0
(0)
0
(0)
0
(0)
0
(0)
12
(35)
0
(1)
0
(0)
0
(0)
3
(5)
Notes: The numbers in the first row correspond to the number of judgments in which the ECtHR found at least one violation of the
ECHR. The second row shows how many of these judgments concerned violations of Article 6 of the ECHR in general and
the third row shows the number of violations of Article 6 of the ECHR due to excessive length of proceedings in particular.
The number of judgments in 2013 can be compared with the number of judgments from 2012, which are in parentheses.
“A related problem is the excessively slow implementation
of the judgments of the European Court of Human Rights.
This is a phenomenon in several countries where some
judgments of the Court are still not implemented several
years later. ‘Cherry‑picking’ and disregarding judgments
of the European Court of Human Rights have a disruptive
effect not only on our system of human rights protection,
but on the very essence of those European values on which
our Organisation is built.”
•• The second group turned to a variety of
­non‑legislative solutions: Malta launched public
consultations44 while Bulgaria created a specific
methodology to regulate courts’ workloads.45 In
Poland, new jurisprudence clarified a period that
courts will have to look at when assessing the
overall length of proceedings at a particular stage
of the case.46 In Slovenia, different justice sectors
committed to working jointly to reduce the
length of proceedings.47
Nils Muižnieks, Council of Europe Commissioner for Human Rights (2013),
Annual activity report 2012, 10 April 2013, CommDH(2013)5, p. 4, available
at: https://wcd.coe.int/com.instranet.InstraServlet?command=com.
instranet.CmdBlobGet&InstranetImage=2307313&SecMode=1&DocId=20265
00&Usage=2
•• Finally, Finland, 48 Greece, 49 Ireland,50 Italy51 and
the United Kingdom,52 for example, mainly contin‑
ued to pursue measures, which they had intro‑
duced in 2012, aimed at shortening the length of
judicial proceedings (FRA Annual report 2012). In
Denmark, some criticised a suggestion to shorten
the length of proceedings by limiting access to ap‑
pellate courts in civil cases, arguing that this would
disproportionately impede individuals’ access
to justice.53
EU Member States took three main approaches in 2013
to reduce the length of proceedings, opting to pursue
legislative and non‑legislative solutions and enhance
the implementation of previously introduced measures:
•• Croatia,37 Hungary,38 Latvia,39 Lithuania, 40 the
­Netherlands, 41 Portugal42 and Slovakia, 43 for exam‑
ple, introduced new legislative regimes or amend‑
ed existing laws to tackle undue delays.
Table 8.3: Number of friendly settlements and unilateral declarations concerning length of proceedings under
Article 6 of the ECHR in 2013, by EU Member State
AT
BE
BG
CY
CZ
DE
DK
EE
EL
ES
FI
FR
HR
Friendly settlements
in total (in relation to
length of proceedings)
1
(1)
3
(0)
8
(5)
0
(0)
9
(5)
1
(0)
1
(1)
1
(0)
14
(14)
0
(0)
3
(0)
1
(0)
30
(25)
Unilateral declarations
in total (in relation to
length of proceedings)
0
(0)
0
(0)
6
(4)
0
(0)
8
(7)
3
(0)
0
(0)
1
(1)
0
(0)
1
(1)
1
(1)
0
(0)
3
(3)
Notes: The first row shows the number of friendly settlements and the second row shows the number of unilateral declarations in
relation to complaints concerning excessive length of proceedings under Article 6 of the ECHR.
198
The four highest numbers in each row are highlighted in blue.
Access to justice and judicial cooperation
Table 8.2:(continued)
HU
IE
IT
LT
LU
LV
MT
NL
PL
PT
RO
SE
SI
SK
UK
Total
40
(24)
1
(2)
34
(36)
10
(7)
1
(1)
10
(10)
5
(1)
0
(5)
14
(56)
11
(22)
83
(70)
3
(4)
24
(20)
16
(21)
8
(10)
410
(486)
1
(0)
0
(0)
7
(3)
2
(2)
1
(0)
2
(1)
0
(0)
0
(2)
2
(1)
0
(5)
19
(13)
0
(0)
2
(0)
1
(1)
0
(0)
80
(50)
25
(9)
1
(2)
16
(16)
2
(1)
0
(1)
1
(2)
1
(0)
0
(0)
3
(6)
6
(17)
11
(10)
0
(0)
20
(13)
12
(11)
0
(1)
118
(151)
The five highest numbers of violations in each row are highlighted in blue.
(For a full EU Member State list, see Table 10.5 in Chapter 10 on EU Member States and international obligations.)
Sources:Data extracted from ECtHR Annual report 2013 (as well as from earlier Annual reports)
As reported last year, various e‑justice tools
are expected to help reduce procedure length and
facilitate access to justice, including those introduced
for the first time in 2012 in Belgium, Croatia, Germany
and Sweden (for more on e‑justice, see Section 8.2.2).
Promising practice
Supporting access to justice through
guidelines on the creation of
judicial maps
The Council of Europe Commission for the Effi‑
ciency of Justice published guidelines in June 2013
designed to maximise the service level of justice
while optimising operational costs and invest‑
ments. Policy makers can use the guidelines to
undertake reforms and take operational decisions
to redesign the judicial map of an entire country
or a part of it. The document, Guidelines on the
creation of judicial maps to support access to jus‑
tice within a quality judicial system, includes fac‑
tors that should be taken into account when de‑
ciding the size and location of a particular court to
achieve the optimum level of efficiency and
quality.
8.2.2. Member States innovate with
e‑justice tools
The use of information and communication
­technology (ICT) can help to facilitate access to justice,
but ICT should supplement, not replace, traditional
systems, to avoid alienating those who cannot or do
not wish to access such technology.
In 2013, e‑justice developments continued to expand,
by making:
•• electronic communication and information e
­ xchange
possible between the courts and the parties (indi‑
viduals and their legal representatives) and
Source: www.coe.int/t/dghl/cooperation/cepej/
quality/2013_7_cepej _ Judicial_maps_guidelines_en.pdf
Table 8.3:(continued)
HU
IE
IT
LT
LU
LV
MT
NL
PL
PT
RO
SE
SI
SK
UK
Total
73
(64)
3
(3)
2
(1)
0
(0)
0
(0)
0
(0)
0
(0)
2
(0)
92
(14)
4
(4)
17
(4)
0
(0)
0
(0)
21
(21)
2
(0)
288
(162)
3
(2)
0
(0)
0
(0)
1
(0)
0
(0)
0
(0)
0
(0)
1
(1)
36
(8)
4
(4)
13
(10)
0
(0)
0
(0)
4
(4)
4
(2)
89
(48)
The numbers of friendly settlements and unilateral declaration in 2013 can be compared with the number of judgments
in 2012, which are in parentheses.
Source: www.hudoc.echr.coe.int
199
Fundamental rights: challenges and achievements in 2013
Table 8.4: Leading cases pending execution in 2012 and 2013 for those five EU Member States with the most
cases pending execution for more than five years
Average execution time
Leading cases pending > 5 years
EU
Member
State
2012
2013
Number of cases
Per 10 million
inhabitants
Number of cases
Per 10 million
inhabitants
IT
33
5.43
34
5.70
BG
32
43.67
32
43.93
RO
28
13.11
26
12.96
EL
20
17.71
26
23.50
PL
27
7.01
17
4.41
Note: The table includes data only on the top five EU Member States where implementation is delayed by more than five years.
(For a full EU Member State list, see Table 10.6 in Chapter 10 on EU Member States and international obligations.)
Source: Data extracted from ‘Supervision of the execution of judgments and decisions of the European Court of Human Rights’,
draft of the Annual report 2013, Council of Europe, April 2014 (as well as from earlier Annual reports)
•• judges’ work more efficient through the use of
computerised databases for registration and man‑
agement of cases.
Promising practice
Using Twitter to raise awareness
about case law and existing standards
In April 2013, the CJEU started sharing information
concerning its decisions as well as certain institu‑
tional events through the social network Twitter.
Source: http://curia.europa.eu/jcms/upload/docs/application/
pdf/2013-04/cp130045en.pdf
The Supreme Administrative Court of Lithuania
likewise opened its Twitter account in 2013, using
it to inform the public on its latest decisions and
activities.
Source: https://twitter.com/LVAT_info
EU Member State are increasingly deploying electronic
communication and information exchange between
the courts and the parties; this trend continued in 2013.
In Austria, since January 2013, electronic entries may
be filed at courts and the public prosecutor’s office,
using the citizen card (Bürgerkarte) and online forms,
through the website www.eingaben.justiz.gv.at. In
Croatia, a new amendment to the Civil Procedural Act
provides for the possibility of electronic communica‑
tion between the court and parties in proceedings
before commercial courts. Electronic communication
is bilateral, allowing both the parties and the court to
send documents by electronic means.54 Similarly, in
200
Lithuania, since January 2013, parties to civil judicial
proceedings are able to submit procedural documents
to the courts electronically.55 In Estonia, individuals
increasingly made use in 2013 of the existing online
tool ‘public e‑file’ to initiate court proceedings. One
of the system’s advantages was the lower court fees
for civil court proceedings initiated through the e‑file
system. The Supreme Court, however, held this to
be discriminatory and declared the relevant parts of
the law on court fees unconstitutional.56 In Slovakia,
a newly adopted law introduced electronic mail‑
boxes as the means of communication among public
administration organs as well as between them and
citizens.57 Every person in possession of an electronic
mailbox will be able to file legal actions, complaints
and other court motions electronically.
Promising practice
Enhancing accessibility: the European
e‑Justice Portal goes mobile
From 19 December 2013, mobile devices can be
used to consult the European e‑Justice Portal. The
portal dynamically adapts to the resolution of the
given device whether it is a smartphone, a tablet
or a phablet, which is essentially a combination of
the first two.
Source: https://e-justice.europa.eu/sitenewsshow.
do?plang=en&newsId=87
As for the e‑registration and management of cases,
on 4 September 2013, the Cypriot government decided
Access to justice and judicial cooperation
to create an electronic platform to facilitate the courts’
work. Through this platform, the government aspires
to implement the e‑justice approach and make court
processes more accessible and efficient.58 Sweden
initiated an electronic information flow in criminal
procedures to shorten the length of criminal proceed‑
ings. It also improved citizen’s e‑services, making it
possible, for example, for parties to litigation to follow
their cases through the proceedings more effectively.
Promising practices
Accessing services of non‑judicial
bodies online
Online reporting seems not uncommon when ap‑
proaching non‑judicial bodies to provide testimo‑
ny, lodge a complaint or request assistance. Com‑
plaints to the Hungarian Commissioner for
Fundamental Rights (Alapvető jogok biztosa) can,
for example, be submitted online, by filling out an
interactive online questionnaire on the website.
They can also be submitted via the central state
website for online administrative case manage‑
ment (Ügyfélkapu), which requires users either to
register or to provide an e‑signature.
Source: www.ajbh.hu/forduljon-a-biztoshoz_intelligens_
form, www.ajbh.hu/forduljon-a-biztoshoz_ugyfelkapu_nelkul
and https://ugyfelkapu.magyarorszag.hu/
In Portugal, the Ombudsperson (Provedor de
Justiça) website provides an electronic tool for the
presentation of complaints within the realm of its
competence and responsibilities.60 The Portu‑
guese Commission for Equality and against Racial
Discrimination (Comissão para a Igualdade e con‑
tra a Discriminação Racial) also provides an elec‑
tronic tool on its website for the presentation of
complaints pertaining to racial discrimination.
Source: www.acidi.gov.pt/_cfn/51b1d0c36f0d9/live/
Formul%C3%A1rio+Queixa
Overall, by 2013 more than half of the EU Member
States had made it possible to initiate judicial proceed‑
ings through online tools, be it through email or a spe‑
cial portal using electronic signature or e‑ID. Yet, in the
majority of cases, this possibility is still limited to
specific types of proceedings, mostly in the area of
civil and/or administrative law. For criminal proceed‑
ings, police in fewer than half the Member States
accept online reports from individuals during the
investigation phase. These online filings are possible
only when they relate to certain types of criminal
activity, usually those linked to property damage. In
France, it has been possible to file complaints online
about police misconduct since 2 September 2013. The
statement cannot be anonymous, and the internet
user is notified that false allegations can be prose‑
cuted. During the first half of 2013, France extended
the existing system of online pre‑reporting to all of
France from a few regions. Online pre‑reporting ena‑
bles individuals who are victims of theft or fraud, and
who do not know the offender, to make an initial
report online. They can then make an appointment
with the police or gendarmerie station of their choice,
where the online pre‑report must be signed in order
to be official.59
FRA ACTIVITY
Developing an online tool to enhance
access to justice by means of
non‑judicial bodies: CLARITY project
A major obstacle to efficient remedies, according
to FRA research, is the difficulty victims of funda‑
mental rights violations face in finding the correct
path to have their grievance addressed effective‑
ly. Many such victims favour non‑judicial paths,
whose proceedings are seen as less expensive,
swifter and more expert, the research shows.
In 2013, FRA, together with a group of national hu‑
man rights bodies, started developing a pilot on‑
line tool to help victims of fundamental rights vio‑
lations gain better access to non‑judicial remedies.
The pilot online tool is designed to help identify
the most appropriate non‑judicial EU Member
State body with a human rights remit for a particu‑
lar fundamental rights issue. The tool will cover
different fundamental rights areas, including the
area of non‑discrimination. It will principally target
intermediaries, such as NGOs guiding victims of
fundamental rights violations to a relevant body,
as well as the victims themselves. The launch of
the first prototype of this tool is planned for 2014.
Source: http://fra.europa.eu/en/project/2013/clarity-complaintslegal-assistance-and-rights-information-tool-you
8.3. Member States turn
attention to non‑judicial
mechanisms
It is well established that independent and strong
non‑judicial bodies with a human rights remit have
a role in facilitating access to justice, and hence an
important place within the fundamental rights land‑
scape (see FRA Annual report 2012, Section 8.6., as
well as the FRA Annual report 2011 Focus). These
bodies include national human rights institutions
(NHRIs), equality bodies, ombudsperson institutions,
data protection authorities (see Chapter 3 on informa‑
tion society, respect for private life and data protec‑
tion) and international treaty‑monitoring bodies (see
Chapter 10 on EU Member States and international
obligations). The UN General Assembly reiterated the
role of these institutions in strengthening the rule of
201
Fundamental rights: challenges and achievements in 2013
law in its resolution adopted on a German initiative
in December 2013.61
Promising practice
Safeguarding pluralism in
a non‑judicial body’s composition
The Dutch national human rights institution safe‑
guards pluralism in its composition, in line with
the Principles relating to the Status of National
Institutions (the Paris Principles), by engaging
with other non‑judicial bodies. An advisory coun‑
cil supports the work of the Netherlands Institute
for Human Rights (College voor de Rechten van
de Mens), which opened its doors in October 2012
(see FRA Annual report 2012). Standing members
of this council include the National Ombudsman
(Nationale Ombudsman), and the chairpersons of
the Dutch Data Protection Agency (College besch‑
erming persoonsgegevens) and the Justice Ad‑
ministration Council. The advisory council issues
annual policies and submits recommendations to
the Minister of Security and Justice on the ap‑
pointment of commissioners and deputy commis‑
sioners to the institute. Between four and eight
advisory council members are also drawn from
civil society organisations concerned with the
protection of human rights, organisations of em‑
ployers and employees, and academia.
Source: Netherlands, Netherlands Institute for Human Rights
(2013), Annual Report 1 October 2012 – 1 October 2013,
available at: https://mensenrechten.nl/publicaties/
detail/18902
Some EU Member States cut non‑judicial bodies’
budgets, a reflection of the continuing austerity trend
(see also FRA Annual report 2012).62 Budget cuts,
which may force non‑judicial bodies to provide
reduced services and hence undercut their ability to
adhere to their mandate, were reported in 2013 in, for
example, Bulgaria,63 Ireland,64 Slovakia65 and Spain.66
Merging various non‑judicial bodies represents
another trend. Ireland took further steps in 2013
towards merging the Equality Authority and the
Human Rights Commission (see FRA Annual
report 2012).67 In Finland, a new draft proposal was
made in 2013 to merge two distinct national equality
bodies into one with a mandate covering all forms of
discrimination.68 The general aim of the reform is to
address all forms of discrimination with a coherent set
of remedies and sanctions.
Promising practice
Launching an online case digest:
European Ombudsman
To inform the public regularly and more effective‑
ly about its inquiries into possible maladministra‑
tion by EU institutions, bodies, offices and agen‑
cies, the European Ombudsman launched a digest
of case law on its website in September 2013. The
digest contains the key findings of the Ombuds‑
man’s inquiries, searchable through a variety of
categories, with links to the texts of the full deci‑
sions, and other documents where relevant.
Source: www.ombudsman.europa.eu/cases/digests.faces
FRA ACTIVITY
Cooperating to strengthen
fundamental rights protection in an
evolving human rights landscape
National and international human rights bodies
met for the first time in 2013, reiterating their
commitment to work together to strengthen hu‑
man rights protection in Europe. The October 2013
meeting brought together national human rights
institutions, equality bodies and ombudsperson
institutions from across Europe with the Council of
Europe, FRA, the UN and the OSCE’s Office for
Democratic Institutions and Human Rights. The
meeting was therefore an important step in
strengthening the European human rights and
equality architecture and promoting concerted
action for individuals’ human rights throughout
the region. It will also help ensure that the EU’s
decision makers receive coordinated input to help
shape the EU’s fundamental rights in Europe.
Source: www.fra.europa.eu/sites/default/files/
meeting_report_7-8_oct_2013_en.pdf
202
Finally, some EU Member States continued to
restructure their non‑judicial bodies in 2013, as
­
reported in the FRA Annual report 2012. The Belgian
central government, regions and communities took
the first step in their agreement to convert the cur‑
rent equality body into an interfederal Centre for
Equal Opportunities and Opposition to Racism (inter‑
federaal Centrum voor gelijke kansen en bestrijding
van discriminatie en racisme/Centre interfédéral pour
l’égalité des chances et la lutte contre le racisme) with
a mandate to address issues in the area of racism at
those three levels.69 This agreement, reached on
23 July 2013, entered into force on 15 March 2014.
Initiatives in Lithuania70 to transform the Ombudsman
office into an NHRI continued in 2013 (see
FRA Annual report 2012).
Access to justice and judicial cooperation
Outlook
Many new legislative and standard setting measures
in the area of access to justice and judicial cooperation
are expected to be adopted in 2014 at both the EU and
national levels, including measures to finalise the
criminal procedures roadmap or the currently pending
proposal for a creation of the European Public
Prosecutor’s Office. The main focus of EU policy, how‑
ever, will undoubtedly be on the implementation
of existing measures.
EU Member States will continue searching for the right
balance between the need to restructure national
justice systems and cut unnecessary costs and
ensuring that remedies are accessible in practice to
everyone, including through effective and inde‑
pendent non‑judicial structures or innovative e‑tools.
The overall role of national human rights structures is
expected to be further enhanced beyond the national
level by their increased integration in the work of
all UN organs.
This implementation problem, that is how to ensure
that existing legislation and case law in the area of
justice are effective and function well in practice, will
represent one of the biggest challenges for the EU in
the post‑Stockholm period. Another challenge will be
to develop an effective rule of law mechanism for
the EU in close collaboration with national, European
and international actors.
203
Fundamental rights: challenges and achievements in 2013
Index of Member State references
EU Member State
Page
AT�������������������������������������������������������������������������������������� 200
BE�������������������������������������������������������������������������������������� 199
BG��������������������������������������������������������������������������� 192, 197, 198, 202
CY�������������������������������������������������������������������������������������� n/a
CZ��������������������������������������������������������������������������������������� 192
DE�������������������������������������������������������������������������������������� 199
DK�������������������������������������������������������������������������������������� 198
EE��������������������������������������������������������������������������������������� 200
EL������������������������������������������������������������������������������� 192, 197, 198
ES���������������������������������������������������������������������������� 190, 192, 197, 202
FI����������������������������������������������������������������������������������� 198, 202
FR��������������������������������������������������������������������������������������� 201
HR������������������������������������������������������������������������������ 198, 199, 200
HU������������������������������������������������������������������������������ 190, 192, 198
IE���������������������������������������������������������������������������� 191, 192, 198, 202
IT���������������������������������������������������������������������������� 190, 192, 197, 198
LT������������������������������������������������������������������������������� 198, 200, 202
LU��������������������������������������������������������������������������������������� n/a
LV��������������������������������������������������������������������������������������� 198
MT�������������������������������������������������������������������������������������� 198
NL������������������������������������������������������������������������������ 197, 198, 202
PL����������������������������������������������������������������������������������� 197, 198
PT������������������������������������������������������������������������������� 192, 198, 201
RO������������������������������������������������������������������������������ 190, 192, 197
SE����������������������������������������������������������������������������������� 199, 201
SI����������������������������������������������������������������������������������� 192, 198
SK������������������������������������������������������������������������������� 198, 200, 202
UK���������������������������������������������������������������������������������� 192, 198
204
Access to justice and judicial cooperation
Endnotes
All hyperlinks accessed on 30 April 2014.
1
2
Council of the European Union (2013), Council conclusions on
fundamental rights and rule of law and on the Commission
2012 Report on the Application of the Charter of
Fundamental Rights of the European Union, www.consilium.
eu.int/uedocs/cms_data/docs/pressdata/en/jha/137404.pdf.
FRA (European Union Agency for Fundamental
Rights) (2013), Fundamental rights: challenges and
achievements in 2012, Annual report, Luxembourg,
Publications Office of the European Union (Publications
Office), Chapter 8.
3
European Commission (2013), Report from the Commission
to the European Parliament and the Council on progress in
Romania under the Cooperation and Verification
Mechanism, COM(2013) 47 final, Brussels, 30 January 2013,
http://ec.europa.eu/cvm/docs/com_2013_47_en.pdf.
4
Council of Europe, Venice Commission (2013), Opinion on the
Fourth Amendment to the Fundamental Law of Hungary,
adopted by the Venice Commission at its 95th Plenary
Session, Venice, 14–15 June 2013, CDL‑AD(2013)012),
www.venice.coe.int/webforms/documents/?country=
17&year=all.
5
For the previous opinions of the Venice Commission on
Hungary from 2012, see FRA (2013), Fundamental rights:
challenges and achievements in 2012, Annual report,
Luxembourg, Publications Office, Chapter 8.
6
European Parliament (2012), Resolution on the situation of
fundamental rights: Standards and practices in Hungary
(pursuant to the European Parliament resolution of
16 February 2012), P7_TA‑PROV(2013)0315, Brussels,
3 July 2013, www.europarl.europa.eu/sides/getDoc.
do?type=TA&reference=P7-TA-2013-0315&language=EN&rin
g=A7-2013-0229.
7
United Nations (UN), Office of the United Nations High
Commissioner for Human Rights (2013), ‘Hungary must
revoke worrying constitutional changes – Pillay’, Press
release, 18 June 2013, www.ohchr.org/EN/NewsEvents/
Pages/DisplayNews.aspx?NewsID=13464&LangID=E.
8
Hungary (2013), Magyarország Alaptörvényének ötödik
módosítása.
9
European Commission (2013), Flash Eurobarometer 385:
Justice in the EU, report, 21 November 2013, http://
ec.europa.eu/public_opinion/flash/fl_385_en.pdf.
10 Ireland (2013), Civil Legal Aid Regulations 2013
(SI No. 346 of 2013), http://irishstatutebook.ie/2013/en/
si/0346.html.
11 Portugal (2013), Lei 83-C/2013 que aprova o Orçamento de
Estado para 2014, 31 December 2013, https://dre.pt/
pdf1sdip/2013/12/25301/0005800295.pdf.
12 United Kingdom, Ministry of Justice, Legal Services
Commission (2014), Legal Aid statistics in England and
Wales 2012–2013, 25 June 2013, http://justice.gov.uk/
downloads/publications/corporate-reports/lsc/legal-aidstats-12-13.pdf.
13 Council of Europe, Commissioner for Human Rights (2013),
‘Austerity measures across Europe have undermined human
rights: Safeguarding human rights in times of economic
crisis’, issue paper, 4 December 2013, https://wcd.coe.int/
ViewDoc.jsp?id=2130915; Council of Europe, Commissioner
for Human Rights (2013), Safeguarding human rights in
times of economic crises, CommDH/IssuePaper(2013)2,
November 2013.
14 European Commission (2013), Assises de la Justice 2013,
http://ec.europa.eu/justice/events/assises-justice-2013/
index_en.htm.
15 Council of Europe, Commission for the Evaluation of the
Efficiency of Justice (2013), The functioning of judicial
systems and the situation of the economy in the European
Union Member States: Compiled report, 15 January 2013,
http://ec.europa.eu/justice/effective-justice/files/
cepej_study_ justice_scoreboard_en.pdf.
16 European Commission (2013), The EU Justice Scoreboard:
A tool to promote effective justice and growth,
27 March 2013, http://ec.europa.eu/justice/effectivejustice/files/justice_scoreboard_communication_en.pdf.
17 See FRA (2013), Fundamental rights: challenges and
achievements in 2012, Annual report, Luxembourg,
Publications Office.
18 Directive 2013/48/EU of the European Parliament and of the
Council of 22 October 2013 on the right of access to a lawyer
in criminal proceedings and in European arrest warrant
proceedings, and on the right to have a third party informed
upon deprivation of liberty and to communicate with third
persons and with consular authorities while deprived of
liberty, OJ 2013 L 294/1, 6 November 2013.
19 European Commission (2013), Proposal for a directive of the
European Parliament and of the Council (2013) on the
strengthening of certain aspects of the presumption of
innocence and of the right to be present at trial in criminal
proceedings, COM(2013) 821/2, 27 November 2013.
20 European Commission (2013), Proposal for a directive of the
European Parliament and of the Council (2013) on procedural
safeguards for children suspected or accused in criminal
proceedings, COM(2013) 822/2, 27 November 2013.
21 European Commission (2013), Proposal for a directive of the
European Parliament and of the Council (2013) on
provisional legal aid for suspects or accused persons
deprived of liberty and legal aid in European arrest warrant
proceedings, COM(2013) 824, 27 November 2013.
22 European Commission (2013), Commission
Recommendation (2013) on procedural safeguards for
vulnerable persons suspected or accused in criminal
proceedings, C(2013) 8178/2, 27 November 2013.
23 European Commission (2013), Recommendation (2013) on
the right to legal aid for suspects or accused persons in
criminal proceedings, C(2013) 8179/2, 27 November 2013.
24 European Commission (2013), Proposal for a Council
regulation (2013) on the establishment of the European
Public Prosecutor’s Office, COM(2013) 534 final, 17 July 2013.
25 European Commission (2013), Recommendation ­2013/396/
EU of 11 June 2013 on common principles for injunctive and
compensatory collective redress mechanisms in the
Member States concerning violations of rights granted
under Union Law, OJ L 201/60.
26 Directive 2013/11/EU of the European Parliament and of the
Council of 21 May 2013 on alternative dispute resolution for
consumer disputes and amending Regulation (EC)
No. 2006/2004 and Directive 2009/22/EC (Directive on
consumer ADR), OJ L 165/63.
27 Regulation (EU) No. 524/2013 of the European Parliament
and of the Council of 21 May 2013 on online dispute
resolution for consumer disputes and amending Regulation
(EC) No. 2006/2004 and Directive 2009/22/EC (Regulation
on consumer ODR), OJ L 165/1.
28 European Commission (2007), Proposal for a Regulation of
the European Parliament and of the Council amending
Regulation (EC) No. 861/2007 of the European Parliament
and the Council of 11 July 2007 establishing a European
Small Claims Procedure and Regulation (EC) No. 1896/2006
of the European Parliament and of the Council of
12 December 2006 creating a European order for payment
procedure, COM(2013) 794 final, 19 November 2013.
205
Fundamental rights: challenges and achievements in 2013
29 European Commission, Consultation on Access to justice in
environmental matters – options for improving access to
justice at Member State level, http://ec.europa.eu/
environment/consultations/access_ justice_en.htm.
30 CJEU, C-396/11, Ciprian Vasile Radu, 29 January 2013.
31 CJEU, C-399/11, Criminal proceedings against Stefano
Melloni, 26 February 2013. See also the Opinion of the
Advocate General in this case analysed by FRA (2013),
Fundamental rights: Challenges and achievements in 2012,
Annual report, Luxembourg, Publications Office, p. 236.
32 CJEU, C-617/10, Åklagaren v. Hans Åkerberg Fransson,
26 February 2013.
33 CJEU, C-442/12, Jan Sneller v. DAS Nederlandse
Rechtsbijstand Verzekeringsmaatschappij NV,
7 November 2013.
34 ECtHR, Anghel v. Italy, No. 5968/09, 4 November 2013.
35 ECtHR, Del Río Prada v. Spain, No. 42750/09,
21 October 2013.
36 Council of Europe, ECtHR (2014), Rules of Court,
1 January 2014, www.echr.coe.int/Documents/Rules_
Court_ENG.pdf.
37 Croatia (2013), Zakon o izmjenama i dopunama Zakona
o parničnom postupku, Narodne novine 25/13,
21 February 2013, http://narodne-novine.nn.hr/clanci/
sluzbeni/2013_
02_25_405.html; see also: Croatia, Konačni prijedlog zakona
o izmjenama i dopunama Zakona o kaznenom postupku,
drugo čitanje No. 488, unpublished, www.sabor.hr/konacniprijedlog-zakona-o-izmjenama-i-dopunama-02.
38 Hungary (2011), 2011. évi CLXII. törvény a bírák jogállásáról
és javadalmazásáról, 2 December 2011.
39 Latvia (2013), Grozījumi likumā par tiesu varu, 13 June 2013.
40 Lithuania (2013), Lietuvos Respublikos baudžiamojo proceso
kodekso 71, 75, 120, 121, 126, 132, 139, 179, 183, 218, 219, 233,
236, 261, 273, 279, 285, 286, 317, 319, 426, 427, 428, 429, 432
straipsnių pakeitimo ir papildymo ir Kodekso
papildymo 131 (1), 430 (1) straipsniais įstatymas, No. XII-498,
2 July 2013.
41 Netherlands, De Rechtspraak (2013), ‘Wetswijziging geeft
bestuursrechter meer armslag’, Press release, 7 January 2013,
www.rechtspraak.nl/Actualiteiten/Nieuws/Pages/
Wetswijziging-geeft-bestuursrechter-meer-armslag.aspx.
42 Portugal (2013), Lei 41/2013 aprova o Código do Processo
Civil, 26 June 2013, http://dre.pt/pdf1sdip/2013/06/12100/
0351803665.pdf.
43 Slovakia, Ministerstvo spravodlivosti SR (2013), ‘Legislatívna
rada vlády schválila návrh reformy súdnych pravidiel’,
16 April 2013, www.justice.gov.sk/Stranky/aktualitadetail.
aspx?announcementID=1731.
44 Malta, Commission for the Holistic Reform of the Justice
System (2013), The first document for public consultation
prepared by The Commission for the Holistic Reform of the
Justice System, 31 May 2013, http://mhas.gov.mt/en/MHASInformation/KRHG/Documents/Document%20for%20
Public%20Consultation%20by%20the%20Commission%20
for%20the%20Holistic%20Reform%20of%20the%20
Justice%20System.pdf; Malta, Commission for the Holistic
Reform of the Justice System (2013), The second document
for public consultation prepared by The Commission for the
Holistic Reform of the Justice System, 29 July 2013,
https://opm.gov.mt/en/krhg/Documents/Consultation%20
Document%2029%2007%2013%20Final%20Version%20
English.pdf.
45 See its latest report: Bulgaria, Committee on Analysis and
Accounting of the Degree of Workload in the Institutions of
the Judicial Branch (2013), Activities of [Committee on
Analysis and Accounting of the Degree of Workload in the
206
Institutions of the Judicial Branch] aimed at devising
a sustainable model for regulating the workload in the
institutions of the judicial branch, 24 October 2013.
46 Poland, Sąd Najwyższy (2013), Resolution No. III SPZP 1/13,
28 March 2013.
47 Slovenia (2013), Zaveza za izboljšanje stanja v sodstvu,
4 June 2013, www.mp.gov.si/fileadmin/mp.gov.si/
pageuploads/mp.gov.si/PDF/130604_Zaveza.pdf.
48 FRA (2013), Fundamental rights: Challenges and
achievements in 2012, Annual report, Luxembourg,
Publications Office, p. 240.
49 Ibid., p. 238.
50 Legislation is required to give effect to the referendum; the
government has introduced the Thirty Third Amendment of
the Constitution (Court of Appeal) Bill 2013, which is likely
to be passed in 2014: Ireland, Thirty Third Amendment of
the Constitution (Court of Appeal) Bill 2013,
www.oireachtas.ie/viewdoc.asp?fn=/documents/bills28/
bills/2013/7913/b7913d.pdf.
51 Council of Europe, Parliamentary Assembly (PACE) (2013),
Committee on Legal Affairs and Human Rights,
Implementation of judgments of the European Court of
Human Rights: Preparation of the 8th report, AS/Jur (2013)
14 Addendum, 10 May 2013, p. 4, www.assembly.coe.int/
CommitteeDocs/2013/ajdoc142013add.pdf.
52 United Kingdom, Crime and Courts Act 2013,
­w ww.legislation.gov.uk/ukpga/2013/22/contents. See also
the promising practice: United Kingdom, Open justice:
Making sense of justice, http://open.justice.gov.uk/courts/.
53 Denmark, Institut for Menneske Rettigheder (2013),
Statement on memorandum on access to appeal in civil
cases and memorandum on access to the Supreme Court,
21 August 2013, www.menneskeret.dk/files/media/
hoeringssvar/86_b_appel20_i20_civile20_sager_
delnotater.pdf and www.menneskeret.dk/files/media/
hoeringssvar/høringsvar_afgivet_i_2013/
august_2013/86_b_appel_i_civile_sager_delnotater.pdf.
54 Croatia (2013), Konačni prijedlog Zakona o izmjenama
i dopunama Zakona o parničnom postupku, second reading,
Proposal No. 216, p. 22, www.sabor.hr/Default.
aspx?art=52698.
55 Lithuania, Seimas (2013), Civilinio proceso kodekso
patvirtinimo, įsigaliojimo ir įgyvendinimo įstatymas:
Civilinio proceso kodeksas, No. IX-743, 3 December 2013,
www3.lrs.lt/pls/inter3/dokpaieska.
showdoc_l?p_id=462215&p_tr2=2.
56 Estonia, Riigikohtu põhiseaduslikkuse järelevalve
kolleegium, Case No. 3-4-1-20-13.
57 Slovakia (2013), Zákon č. 305/2013 Z.z. o elektronickej
podobe výkonu pôsobnosti orgánov verejnej moci, Zákon
o eGovernmente, 4 September 2013, www.nrsr.sk/web/
Default.aspx?sid=zakony/zakon&MasterID=4500; Slovakia,
Ministerstvo spravodlivosti SR (2013), Projekty eJustice
zrýchlia súdne konania a priblížia súdy občanom,
10 October 2013, www.justice.gov.sk/Stranky/
aktualitadetail.aspx?announcementID=1781.
58 Some of the information supplied in this chapter is based on
data deriving from the Chief Registrar of the Supreme Court.
59 France, Ministère de l’Intérieur, Pré‑plainte en ligne,
­w ww.pre-plainte-en-ligne.gouv.fr/.
60 Portugal, Provedor de Justiça, Formulário de queixa,
­http://queixa.provedor-jus.pt/Queixas/Step1.aspx.
61 UN, General Assembly (2013), A/RES/68/171,
18 December 2013. See also UN, Human Rights Council
(2013), Resolution National institutions for the promotion
and protection of human rights, A/HRC/RES/23/17,
24 June 2013.
Access to justice and judicial cooperation
62 Council of Europe, Commissioner for Human Rights (2013),
Safeguarding human rights in times of economic crises,
November 2013, https://wcd.coe.int/com.instranet.
InstraServlet?command=com.instranet.CmdBlobGet&Instra
netImage=2407768&SecMode=1&DocId=2088892&Usage=.
63 Bulgaria, Ombudsman, www.ombudsman.bg/
news/2816#middleWrapper.
64 Mcquinn, C. (2013), ‘Cuts decimating services, equality
groups complain’, Independent.ie, www.independent.ie/
irish-news/cuts-decimating-services-equality-groups-complain29726492.html.
65 Slovakia, Kancelária Verejného Ochrancu Práv (2014),
Správa Kancelárie verejného ochrancu práv o výsledkoch jej
činnosti, hospodárení a podmienkach pre jej činnosť v roku
2013, www.vop.gov.sk/files/Priloha-2013.pdf.
66 International Ombudsman Institute (2013), ‘Spain: Latest
development regarding two regional Ombudsman
institutions´, Press release, www.theioi.org/news/spain-latestdevelopment-regarding-two-regional-ombudsmaninstitutions.
68 Finland (2013), Draft proposal for the government
proposition for a Non‑Discrimination Act, 12 April 2013.
69 Belgium (2012), Samenwerkingsakkoord tussen de federale
overheid, de gewesten en de Gemeenschappen voor de
oprichting van het interfederaal Centrum voor gelijke
kansen en bestrijding van discriminatie en racisme onder de
vorm van een gemeenschappelijke instelling zoals bedoeld
in artikel 92bis van de bijzondere wet van 8 augustus 1980/
Accord de Coopération entre l’autorité fédérale, les Régions
et les Communautés visant à créer un Centre interfédéral
pour l’égalité des chances et la lutte contre le racisme et les
discriminations sous la forme d’une institution commune, au
sens de l’article 92bis de la loi spéciale de réformes
institutionnelles du 8 août 1980, 23 July 2012.
70 Lithuania, Lietuvos Respublikos teisingumo
ministerija (2013), Communication of NFP‑Lithuania,
15 November 2013.
67 Ireland (2013), ‘Appointment of members designate of new
Irish Human Rights and Equality Commission’, Press release,
14 April 2013, www.merrionstreet.ie/index.php/2013/04/
appointment-of-members-designate-of-new-irish-humanrights-and-equality-commission.
207
9
Rights of crime victims ���������������������������������������������������������� 211
9.1. EU Member States take steps to enhance
victims’ rights ��������������������������������������������������������������� 211
9.1.1. Governments take greater responsibility
towards victims ���������������������������������������������� 212
9.1.2. Many gaps remain, including a lack
of coordination of support services
and insufficient funding ��������������������������������� 213
9.1.3. The role of victims in the sentencing phase ��� 213
9.1.4. Funding cuts hit support services ����������������� 214
9.2. Member States enhance victims’ access
to compensation ����������������������������������������������������������� 214
9.3. Member States move to strengthen rights
of victims of domestic violence and violence
against women ������������������������������������������������������������� 215
9.3.1. Istanbul Convention and related
developments at EU Member State level ���� 215
9.3.2. Sexual violence ���������������������������������������������� 216
9.3.3. Measures to enhance protection
of women from domestic violence ��������������� 216
9.4. EU focuses on enhancing rights
of hate crime victims ��������������������������������������������������� 218
9.4.1. The need to tackle under‑reporting
by victims ������������������������������������������������������� 220
9.5. Member States address rights
of victims of trafficking and severe forms
of labour exploitation �������������������������������������������������� 221
9.5.1. Most Member States increase efforts
to tackle human trafficking ��������������������������� 222
9.5.2. Member States still bring few prosecutions ��� 223
9.5.3. Concern that victims may be prosecuted
for ‘crimes’ ������������������������������������������������������ 223
9.5.4. Labour exploitation – action needs
to be stepped up �������������������������������������������� 225
Outlook ������������������������������������������������������������������������������������ 225
Fundamental rights: challenges and achievements in 2013
UN & CoE
January
5 February – Portugal becomes the first European
Union (EU) Member State to ratify the Council of
Europe Convention on preventing and combating
violence against women and domestic violence
(Istanbul Convention)
February
March
April
May
June
July
August
5 September – International Labour Organization
(ILO) Convention concerning decent work for
domestic workers enters into force
September
17 October – Council of Europe Group of Experts on
Action against Trafficking in Human Beings
(GRETA) publishes the Third General Report on its
activities
October
November
9 December – Council of Europe and the French
government organise a hearing on ‘Access to
Justice for Women Victims of Violence’
December
EU
January
February
March
6 April – Deadline for transposition into national law of the Directive on
preventing and combating trafficking in human beings and protecting
its victims
15 April – Eurostat publishes its report Trafficking in human beings in
the European Union
April
May
12 June – European Parliament and Council of the European Union adopt
the Regulation on mutual recognition of protection measures taken in
civil matters
13 June – Council of the European Union adopts conclusions on an EU
framework for the provision of information on the rights of victims of
trafficking in human beings
June
July
August
September
15 October – FRA (European Union Agency for Fundamental Rights)
issues an Opinion on the Framework Decision on Racism and
Xenophobia – with special attention to the rights of victims of crime
October
12–13 November – FRA holds its annual Fundamental Rights Conference
on ‘Combating hate crime in the EU: Giving victims a face and a voice’
November
6 December – Justice and Home Affairs ( JHA) Council adopts conclusions
on combating hate crime in the EU, proposing concrete actions to
improve efforts to combat hate crime at EU and national level
December
210
9
Rights of crime victims
In 2013, EU Member States worked to transpose the EU Victims’ Directive, which was adopted in October 2012,
into national law with a view to implementation by the 16 November 2015 deadline. Some Member States made
considerable progress in strengthening procedural rights and support provisions for victims in line with the
directive. The Czech Republic, for example, guaranteed many of the rights set out in the directive at the legal
level, while France stands out as having established a comprehensive victim support service structure across
the country. Other Member States, however, need to make a significant effort in the coming months if the
targets outlined in the directive, including the provision of victim support services, are to be met on time. The
Regulation on mutual recognition of protection measures taken in civil matters upon request of the person at
risk, adopted on 12 June 2013, aims to ensure that protection measures in civil matters issued by one Member
State will be easily recognised by and applied in other Member States. A number of Member States reformed
laws and enhanced victims’ rights.
9.1. EU Member States
take steps to
enhance
victims’ rights
Some EU Member States overhauled victims’
rights legislation in 2013, driven by the obliga‑
tion to transpose the EU Victims’ Directive into
national legislation by November 2015. Some
governments also enforced their responsibility
to make victims’ access to justice effective
in practice, in particular by initiating, coordi‑
nating and funding the establishment of sup‑
port services by state and non‑state actors.
Despite progress in enforcing victims’ rights,
gaps remain across various Member States,
including continuing low numbers of victims
granted compensation, lack of coordination of
support services and the insufficient funding of
and coverage provided by such services.
In the Czech Republic, a comprehensive Victims’
Rights Act came into force on 1 August.1 The
Key developments in the rights of crime victims
• The European Parliament and the Council of the European Union
adopt a Regulation on mutual recognition of protection measures
taken in civil matters upon request of the person at risk, aiming to
ensure that all protection measures taken in civil matters in one
Member State can be applied throughout the European Union.
• Member States continue efforts to implement Directive ­2012/29/EU
establishing minimum standards on the rights, support and
protection of victims of crime (EU Victims’ Directive) by amending
criminal legislation to include measures that protect and empower
victims and by strengthening victim support structures. Many gaps
remain, however, such as a lack of coordinated support structures
and inadequate funding of support organisations.
• The deadline for transposing Directive 2011/36/EU on preventing
and combating trafficking in human beings and protecting its
victims (Trafficking Directive) is reached on 6 April 2013.
• Three EU Member States ratify the Council of Europe Convention on
preventing and combating violence against women and domestic
violence (Istanbul Convention). A further three Member States
signed the Convention in 2013, bringing the total number of EU
signatories to 17.
211
Fundamental rights: challenges and achievements in 2013
• The JHA Council adopts conclusions on combating hate crime
in the EU, inviting Member States to ensure that bias motives
are taken into consideration throughout criminal proceedings;
to take appropriate measures to facilitate victims’ reporting
of hate crimes; to look at measures to build trust in police
and other state institutions; and to collect and publish
comprehensive and comparable data on hate crime.
act regulates the position of victims of crime, making
special provision for “particularly vulnerable victims”,
for example victims of crimes involving racial hatred
or prejudice. All victims have the right to access to
information concerning their rights and obligations, will
have the chance to file a criminal complaint and are to
be informed about where they can seek assistance.
There are also measures ensuring that particularly
vulnerable victims will be interviewed by someone
who is specially trained and that the same person
will conduct hearings.
Poland amended its Criminal Code of Procedure to
bring it in line with the Victims’ Directive.2 Crucially,
the new law introduces the formal obligation to
inform victims about their specific rights in prepara‑
tory proceedings. The amendment also gives vic‑
tims and suspects equal rights to access case files in
pre‑trial proceedings. Victims must be informed about
this right at the beginning of the investigation. The
new law also introduces the right to interpretation
for non‑Polish‑speaking victims.3
In the United Kingdom (England and Wales), the
Criminal Procedure Rules were restated in October 2013.
The resulting revised Criminal Practice Directions were
amended in line with the Code of Practice for Victims
of Crime, requiring, for the first time, that Victim
Personal Statements be read to the court if the victim
so requests, subject to judicial discretion.4
While not all countries took concrete steps to ­transpose
the Directive in 2013, some Member States paved the
way for progress. The Lithuanian Ministry of Justice, for
example, adopted a framework plan of implementation,
which sets out plans to amend the Criminal Procedure
Code and introduce other measures to improve the pro‑
tection of rights of all victims of crimes in accordance
with the directive.5 Ireland also announced plans for
a Criminal Justice (Victims’ Rights) Bill.6
9.1.1.
Governments take greater
responsibility towards victims
Governments are becoming increasingly aware of their
responsibility to make victims’ access to justice effec‑
tive in practice, in particular by initiating, coordinating
and funding the establishment of support services by
state and non‑state actors in line with Articles 8 and 9
212
of the EU Victims’ Directive on the provision of victim
support services (see the FRA 2012 Annual report).
Governments are thus increasing their influence on the
provision of services by non‑governmental organisa‑
tions (NGOs). The following trends can be identified
across Member States in 2013:
•• the adoption of joint government strategies
ensuring a comprehensive and coordinated ap‑
­
proach to the implementation of victims’ rights (for
example, in Finland, Ireland and the Netherlands);
•• the creation or strengthening of organisations
tasked with coordinating efforts to support victims
(for example, in Denmark and France);
•• the introduction of mechanisms to recognise, c­ ertify
or accredit generic or specialised support services on
the basis of explicit standards and criteria (for exam‑
ple, in Austria, Belgium and the Czech Republic).
In Finland, the government took steps to ensure ade‑
quate implementation of the EU Victims’ Directive by
setting up a commission to prepare a Victims Strategy
to cover all victim‑related activities.7 A new policy
document, To do justice to victims, presented to the
Dutch parliament in 2013 sets out proposals to increase
training on victims’ rights for various actors; improve
information supply and adapt it to the differing needs
of victims; secure rights of victims in cross‑border
cases; simplify compensation claims; and further the
professionalisation of victim support and the manda‑
tory contribution of perpetrators to victim support.8
The Irish government established the Victims’ Rights
Alliance, an association of victim support and human
rights organisations. The alliance aims to ensure that
the EU Victims’ Directive is implemented within the
proposed time frame, covering all victims of crime. The
alliance provides a platform for victims’ rights NGOs
in Ireland to engage with relevant interest groups,
including the government, on the implementation of
the directive. In late 2013, the Croatian government
announced plans to adopt a new national strategy for
victim and witness support for the period 2014–2017.9
In Denmark, a new law establishes a Victims’ Fund for
the benefit of victims of crime and traffic accidents,
funded by fines imposed on convicted offenders.
Through grants to victim support services, research,
projects on education, information and develop‑
ment, the fund will support activities in the area
of victim support.10
France set up general victim support offices, as stipu‑
lated by a 2012 decree11 and a 2013 circular.12 These
NGO‑run services are conceived as ‘one‑stop’ offices for
victim information, guidance and support throughout
the criminal procedure. Since piloting 12 such offices
Rights of crime victims
in 2009, France opened another 50 between 2010
and 2012 and established a further 90 in 2013.13
Furthermore, the Victim Support Service of the Ministry
of Justice is conducting two pilot projects concerning
the implementation of Article 22 of the Victims’
Directive, which obliges Member States to ensure that
victims receive “a timely and individual assessment [...]
to identify specific protection needs”.14
In the United Kingdom (England and Wales), since 2012
Police and Crime Commissioners have been responsible
for deciding and allocating the budget for most victim
support. In October 2013, the Ministry of Justice pub‑
lished the government’s response to the consultation
Improving the Code of Practice for Victims of Crime. The
code introduces the notion of an enhanced service for
victims in most need.
The Czech Republic’s newly adopted Victims’ Rights
Act creates a requirement for the Ministry of Justice
to accredit support services. State grants then sup‑
port and finance such organisations. Victim support is
granted to any natural person who is a victim of crime.
It comprises social, psychological and legal services
provided by qualified people.
In Austria, since January NGOs providing support and
protection in cases of domestic violence have per‑
formed their work on the basis of service contracts,
the result of the first EU‑wide public procurement pro‑
cedure. This procedure has not resulted in a change in
the NGOs selected; the organisations providing the ser‑
vice have been operating on the basis of public grants
since the late 1990s. It has, however, necessitated the
definition of performance criteria and performance
indicators. It has also strengthened the link between
the government and NGOs providing support to victims
of domestic violence and it has enhanced the transpar‑
ency of that cooperation.
Belgium adopted criteria that organisations need to
fulfil to be recognised as specialised organisations in
the area of reception and accompaniment of victims
of human trafficking and several severe forms of
smuggling of human beings (see Chapter 2 on border
control and visa policy). Only Belgian‑based non‑profit
organisations that have as their main purpose offering
care, guidance and housing to victims of trafficking and
aggravated forms of trafficking can be recognised as
specialised centres. Centres must provide administra‑
tive and legal follow‑up support for victims, and they
must have a strategic and operational plan explaining
the administrative, psychosocial, legal and medical sup‑
port available. In addition, each centre must issue an
annual report with comparable statistical data on the
care of victims of trafficking, including the number of
victims, their age and gender, and the form of exploita‑
tion that they experienced. Recognised centres obtain
the right to act as a civil party in defence of victims
of human trafficking. Three centres were recognised
as specialised centres after the entry into force of the
royal decree in April 2013: PAG‑ASA (Brussels), Payoke
(Antwerp) and Sürya (Liège).15 These centres, however,
do not benefit from structural funding.
9.1.2.
Many gaps remain, including
a lack of coordination of
support services and
insufficient funding
Despite progress, many EU Member States still lack
a coordinated approach to implementing measures
to safeguard the rights of victims, and in more than
half of Member States the coverage provided by sup‑
port services is far from satisfactory. The European
Institute for Gender Equality issued a report recently
that supports this finding. The report, which focuses
on specialised support services for women victims of
intimate partner violence, finds that the level of pro‑
vision of support services to such victims varies sub‑
stantially within the EU in approach, capacity, quality
and geographical distribution.16 Many Member States
need to make a significant effort if they are to meet
the November 2015 target date for implementation of
the EU Victims’ Directive. In Slovakia, for example, the
government has not yet begun any of the necessary
preparatory activities.17 Cyprus lacks a holistic approach
to victim support, with victims’ rights and measures to
support them laid out in various laws and no specific
body in charge of victim support coordination.
9.1.3.
The role of victims in the
sentencing phase
Several EU Member States reformed laws to
strengthen the role of victims in sentencing after an
offender’s conviction. For example, Austria amended
its Penal Procedure Code so that victims of sexual
offences and sexually motivated violent offences
have the right to express their views on the elec‑
tronically monitored house arrests of offenders.18
In Belgium, a bill has been introduced to give vic‑
tims more rights in debates about the release of
offenders. These rights include permission to attend
and express their views at the special court ses‑
sions that decide on the execution of sentences that
concern them.19 The Bill stops short, however, of
granting victims the right to appeal against a sen‑
tence they consider too lenient, an omission which
some have criticised.
In the United Kingdom (England and Wales), the inde‑
pendent Victims’ Commissioner reviewed the statutory
Victim Contact Scheme covering victims of offenders
convicted of certain sexual and violent offences.
213
Fundamental rights: challenges and achievements in 2013
The Victims’ Commissioner, in her review of the
scheme (the responsibility of probation services, using
victim liaison officers), argued for better victim‑ori‑
ented training for liaison officers and parole board
members, more information for victims about parole
board decisions and a more open and transparent
parole board.20 Since 2007, victims have had the right
to make a Victim Personal Statement for the parole
board, but the new Code of Practice for Victims of
Crime granted victims for the first time a statutory
right to make such a statement and apply to read it to
the board in person.
9.1.4. Funding cuts hit support
services
Cuts in funding and other austerity measures driven
by the economic crisis are affecting victim support
organisations across many Member States, including
both generic and specialised victim support pro‑
viders. In 2013, for example, the NGO Victim Support
Slovakia, the only organisation in Slovakia providing
services to all victims of crime, did not receive any
public funds. As a result, the organisation drastically
curtailed its services, suspending its official website
and cutting its helpline operating hours to four per day.
Italy decreased funding for victim support services by
300 % between 2011 and 2013. In 2011, specific sup‑
port services were allocated €11.3 million; this fell to
€9.3 million in 2012 and €3.5 million in 2013.21
FRA ACTIVITY
Mapping EU victim support services
In 2013, FRA completed research on victim sup‑
port services across the EU, and in 2014 it will pub‑
lish comparative findings, including:
• a comparative overview of the 28 Member
States, concerning the extent, nature and con‑
text of victim support service provision;
• information on different models of victim sup‑
port service provision, analysing Member State
similarities and differences;
• promising practices that could offer models for
adoption in different settings/Member States.
For further information on the project, see http://fra.europa.eu/en/
project/2012/victim-support-services-eu-overview-and-assessmentvictims-rights-practice
In contrast, the Dutch government increased funding to
Victim Support Netherlands, from €22 million in 2012 to
over €23.2 million in 2013, with a structural subsidy for
the specialised care of victims of severe violent crimes
and sexual offences.22
214
9.2. Member States enhance
victims’ access to
compensation
The numbers of victims’ compensation claims c­ ontinue
to be low and are even declining across the EU. The EU
Victims’ Directive obliges states to ensure that compe‑
tent authorities provide victims (at first contact) with
information on how and under what conditions they
can access compensation.23 Victims are also entitled
to obtain a decision on compensation by the offender
within a reasonable time during criminal proceedings,
and Member States should also promote measures to
encourage offenders to provide adequate compensa‑
tion to victims.24
While some Member States have taken steps to help
improve victims’ access to compensation, the low
numbers of applications and awards are a matter of
concern in many EU countries, indicating that much
needs to be done to assist and encourage victims to
exercise their right to access compensation. According
to German statistics, for example, only about 10 % of
victims of violent crime apply for compensation under
the Crime Victim’s Compensation Act, and less than
two in five of these victims (3.7 %) receive compensa‑
tion.25 This figure remained stable in 2011 and 2012. In
the first nine months of 2013, only 22 crime victims in
Romania received compensation.26
In Slovenia, the number was even lower, with only
19 compensation awards (resulting from 72 claims),
totalling €42,183, being granted to crime victims in
2013. Thirteen of the 72 claims remain unresolved. In
Cyprus, from 2012 to November 2013, 19 applications
for compensation were received, nine of which were
rejected while the rest remain under examination. In the
Czech Republic, only one application had been received
and acted upon by November 2013.27 One of the reasons
for the low numbers of claims, in addition to reasons
reported in the FRA 2012 Annual report, is the short
time frame many Member States apply for victims to
claim compensation. The FRA 2012 Annual report also
referred to the possibility that either many victims do
not consider compensation a main concern or they have
insurance. In some cases, victims must first exhaust the
possibility of receiving compensation from the offender
before they can apply for state compensation.28
The numbers of claims and awards are also extremely
low in Bulgaria, prompting discussions in the National
Council for Assistance and Compensation of Victims of
Crimes about the legal amendments to the Assistance
and Financial Compensation of Victims of Crime Act
necessary to make it effective in protecting vic‑
tims of crime.
Rights of crime victims
Although the system of compensation for crime
­victims in the United Kingdom is considered to be one
of the most advanced in the EU, there was an almost
15 % reduction in applications, to 47,889, received
by the Criminal Injuries Compensation Authority
in 2012–2013. The decline is attributed in part to a new
scheme, introduced in 2012, which tightened the eligi‑
bility criteria.29 The 10 % decrease in recorded crime
between 2012 and 2013, indicating fewer crime vic‑
tims in 2013 than in 2012,30 could also help explain the
decline in compensation applications.
Finland, the Netherlands (see the Promising practice
box on advancing compensation payments to all vic‑
tims of crime) and Sweden took steps in 2013 to better
compensate crime victims. Finland introduced an
amendment to its criminal code concerning forfeiture,
making it easier for victims to receive compensation.
After the proceeds of a crime have been ordered forfeit
to the state, the victim may turn directly to the State
Treasury and apply for compensation without being
forced to take the issue to court. This procedure is
considered much less complicated than a normal civil
case.31 Sweden simplified the application procedure for
criminal injuries compensation by producing a simpli‑
fied, electronic form.32
Promising practice
Advancing compensation payments
to all victims of crime
The Netherlands announced in 2013 that it would
expand the current advance payment provision
for compensation of victims to victims of all
crimes in 2016 and that it would also prolong the
current three‑year request submission period.
One way the Netherlands provides for advance
payment is through the Central Judicial Collection
Agency, which is responsible for seizing perpetra‑
tors’ property and using it to compensate victims.
A further promising practice is that victims can
apply for compensation with help from Victim
Support Netherlands, which recently made it pos‑
sible to apply for such compensation online.
For more information, see www.rijksoverheid.nl/documentenen-publicaties/kamerstukken/2013/07/23/beleidsreactiepamflet-vvd-fractie-inzake-slachtofferbeleid.html
Criminal courts continue to refuse to take decisions
on victims’ civil law claims in several Member States.
In Slovakia, for example, victims can lodge indem‑
nification claims with the civil court only after the
court or other entitled authority reaches judgment in
the criminal proceeding.33
9.3. Member States move
to strengthen rights
of victims of domestic
violence and violence
against women
9.3.1.
Istanbul Convention and related
developments at EU Member
State level
Three EU Member States (Austria, Italy and Portugal)
ratified the Council of Europe Convention on pre‑
venting and combating violence against women and
domestic violence (Istanbul Convention, CETS No. 210)
in 2013. A further three signed the convention in
2013, bringing the total number of EU Member States
that have signed but not yet ratified the convention
to 17 (for the full list, see Chapter 10 on EU Member
States and international obligations).34 Efforts to
ratify the convention prompted legal reforms in
several Member States in 2013, including Croatia,
Denmark, Finland, France, Italy, Luxembourg and
the United Kingdom.
In Croatia, the amendments are extensive and include
the introduction into Croatian law of definitions of
female genital mutilation, forced marriage and many
aggravated offences committed against a ‘close’
person. The criminalisation of non‑consensual sexual
intercourse was extended beyond crimes involving the
use of violence or threat.35 Finland included a definition
of stalking in its criminal code.36 France added to its
criminal law definitions relating to forced marriage and
inciting female genital mutilation.37 Denmark amended
its law, extending the statute of limitations in cases
of child victimisation.38
In Italy, 2013 reforms to the Code of Criminal Procedure
introduced a number of important measures for victims
of domestic violence, sexual abuse, sexual exploita‑
tion and stalking, focusing on victims’ procedural
rights. Under the new provisions, the public prosecutor
and police are legally obliged to inform victims that
a lawyer may represent them during criminal pro‑
ceedings and that victims or their lawyers may ask for
a protected hearing.39 They are also required to inform
victims about the possibility of accessing legal aid and
the conditions under which such aid is granted. In addi‑
tion, the law provides that investigations into alleged
crimes must be concluded within one year after they
are reported to the police, and residence permits are
to be extended to foreign nationals who are victims of
violence, including undocumented migrants.
215
Fundamental rights: challenges and achievements in 2013
In addition, Croatian substantive criminal law now
takes into account the long‑term nature of relations
of domestic violence. The fact that a violent offence
has been committed against a ‘close person’, including
an intimate partner, is now considered an aggravating
factor. Similarly, the Hungarian parliament adopted
a definition (Article 212a of the Hungarian Criminal
Code) specifically covering violence in relationships; it
entered into force on 1 July 2013.
These definitions are in line with the recent case
law of the European Court of Human Rights (ECtHR).
Until 2009, the court had dealt with non‑lethal cases
of domestic violence mainly as violations of the right
to privacy under Article 8 of the European Convention
on Human Rights (ECHR), with the notable exception
of Opuz v. Turkey, which concerned a case of lethal
domestic violence and where the court found viola‑
tions of Articles 2, 3 and 14.40 In a series of decisions
taken in 2013, the court re‑evaluated domestic violence
cases, stressing the particularly degrading aspects of
intimate violent relationships.
In a case against Lithuania,41 an applicant alleged that in
one month alone her live‑in partner had beaten her up
on five occasions, and she argued that her complaints
should be examined under Article 3 of the convention,
which provides that no one shall be subjected to torture
or to inhuman or degrading treatment. The government
objected that the injuries sustained by the victim were
of a “trivial nature”. However, the court pointed out
that in previous cases treatment had been considered
inhuman and degrading when it was such as to arouse
in its victims feelings of fear, anguish and inferiority,
capable of humiliating and debasing them and possibly
breaking their physical or moral resistance. Accordingly,
the court now stressed that over a certain period of
time the applicant had been exposed to threats to her
physical integrity and that this psychological impact is
an important aspect of domestic violence. On this basis,
the court concluded that the applicant’s ill‑treatment,
which on five occasions caused her physical injuries,
combined with her feelings of fear and helplessness,
was sufficiently serious to reach the minimum level of
severity under Article 3 of the convention on prohibition
of torture and thus triggered the government’s posi‑
tive obligation under this provision. The court upheld
this assessment in the later Eremia v. the Republic
of Moldova case.42 In the D. P. v. Lithuania case, the
government acknowledged a violation of the Article 3
of the convention, and the court, taking note of the
government’s declaration under Article 3, decided to
strike the complaint from its case list.43
Given the particular significance of Member States’ obli‑
gations under the ECHR to prohibit torture or inhuman
or degrading treatment and to redress violations, the
ECtHR’s view that relationships of domestic violence
can amount to inhuman or degrading treatment
216
places additional emphasis on states’ obligations to
acknowledge fully the severe rights violations that
victims of domestic violence experience, sometimes
over long periods.
9.3.2. Sexual violence
The Istanbul Convention defines sexual violence,
including rape, as “non‑consensual acts of a sexual
nature”, where consent must be given voluntarily “as
the person’s free will assessed in the context of the
surrounding circumstances”.44 This is in line with ECtHR
case law, according to which Member States have an
obligation to “enact criminal‑law provisions effectively
punishing rape and to apply them in practice through
effective investigation and prosecution”.45 The ECtHR
highlighted this view in the M. C. v. Bulgaria case in
2003, which concluded that by requiring proof of resist‑
ance by the victim against the offender the criminal
justice system fell short of punishing all forms of rape
and sexual abuse. The obligations deriving from the
ECHR prohibition on torture and inhuman or degrading
treatment (Article 3) and from the right to respect
for private and family life (Article 8) must be seen as
“requiring the penalisation and effective prosecution
of any non‑consensual sexual act, including in the
absence of physical resistance by the victim”.46
Some EU Member States, such as Belgium, Croatia,
Ireland and the United Kingdom, have introduced
reforms to extend definitions of sexual violence to
include all forms of non‑consensual sexual acts. The
criminal codes of most Member States, however,
contain definitions of sexual violence that afford pro‑
tection not on the basis of lack of consent to sexual
acts but only if certain additional requirements are
met, including specific means of coercion or the vic‑
tim’s particular state of dependency or defenceless‑
ness. Portugal, the first EU Member State to ratify
the Istanbul Convention, is taking steps to strengthen
support for victims of sexual violence by establishing
its first rape crisis centres.
The FRA survey on violence against women sheds
light on the importance of criminalising marital rape.
Member States must afford married women the same
protection through criminal law provisions as unmarried
women. Currently, the Bulgarian criminal code does not
meet this standard.
9.3.3.
Measures to enhance protection
of women from
domestic violence
Some EU Member States have focused reforms on
further improving the protection of women against
Rights of crime victims
domestic violence. The Luxembourg Act on Domestic
Violence of 30 July 2013 extended the powers of the
police, public prosecutors and courts to ban an offender
from the victim’s home and extended the time frames
of protection measures.47
The United Kingdom rolled out Domestic Violence
Protection Orders and the Domestic Violence Disclosure
Scheme nationally in June 2013, following a successful
2012 pilot.48 In July, the French government brought
forward draft legislation aimed at furthering gender
equality and including improvements to protection
orders, mainly by speeding up proceedings, extending
the time frame from four to six months and making it
a rule that it is the victim who is allowed to stay in the
home previously shared with the offender.49
A new Italian law gives the local police commissioner
the power to issue an official restraining injunction
and to temporarily revoke a perpetrator’s driving
licence in cases of severe aggression or verbal threats.
It also makes it possible for police, subject to a public
prosecutor’s authorisation, to remove the perpetrator
from the home as a precautionary measure in cases of
severe forms of aggression.50 The law also introduces
a legal obligation, in cases of violent crime, to inform
social services and the victim’s lawyer, or the victim
personally if they are not represented by a lawyer,
about a judge’s decision to withdraw or revise restric‑
tive measures applied to the offender.51 In addition,
judicial police can order the offender to leave the
family home immediately in cases of sexual exploita‑
tion, sexual abuse, personal injury, domestic violence
and stalking. Electronic devices can be used to monitor
whether the perpetrator adheres to the injunction to
leave the house.52
In a second reading in June, the Latvian parlia‑
ment adopted amendments to the law on the
police, allowing police to ban a presumed offender
from the victim’s home for up to eight days.
This power is, however, dependent on the vic‑
tim’s written application.53
Given the rapid legislative developments in protection
measures against domestic violence in many Member
States, a thorough assessment of the practical effec‑
tiveness of such measures is good practice. An evalu‑
ation in the Netherlands found that restraining orders
correlate with a lower rate of recidivism in domestic
violence cases, in part at least because victims are
provided with better support following the issuing of
a restraining order.54
In Poland in July, the Supreme Audit Office published the
results of an audit assessing the steps taken by public
FRA ACTIVITY
Surveying violence against women
In March 2014, the FRA launched the results of its survey on violence against women, covering all 28 EU Member
States. The survey is based on face‑to‑face interviews with a representative sample of 42,000 women. The in‑
terviews were carried out in 2012 by trained interviewers, who asked respondents questions concerning their
personal experiences of violence, including physical and sexual violence, psychological violence by a partner,
stalking, sexual harassment and violence in childhood. To ensure comparability, the same questions were asked
in all Member States, using a structured questionnaire developed by the FRA and translated into the national
languages.
The FRA report on the survey results presents a comprehensive overview of women’s experiences of violence
from the age of 15 and in the 12 months before the interview. Overall, the survey found that one woman in three
(33 %) surveyed had experienced physical and/or sexual violence by a (current or previous) partner or non‑part‑
ner since the age of 15. The survey also showed that 8 % had experienced this type of violence in the 12 months
before the survey.
The results highlight the vulnerability and special needs of victims of sexual violence. Women who have expe‑
rienced sexual violence indicate a number of psychological consequences. They were also more likely to say –
compared with victims of physical violence – that they felt ashamed, embarrassed or guilty about what had
happened, which can result in victims of sexual violence not reporting these incidents to the authorities. De‑
pending on the type of violence and perpetrator, some 61 % to 76 % of women did not report the most serious
incident of physical and/or sexual violence to the police or contact any other support services. The survey com‑
pared the experiences of victims who contacted some service or organisation for support. Victims were least
satisfied with the assistance they received from the police, compared with other services such as healthcare,
social support or victim support services, particularly in relation to crimes of sexual violence. The FRA opinions
refer to the need for multi‑agency cooperation, involving police and other services providers, to address vio‑
lence against women, as well as further specialised victim support services in line with the EU Victims’ Directive
and the Council of Europe Istanbul Convention.
See: http://fra.europa.eu/en/publication/2014/vaw-survey-main-results
217
Fundamental rights: challenges and achievements in 2013
authorities to address domestic violence. According to
the findings, the legal reform enacted in 2010 and 2011,
which introduced the so‑called ‘Blue Card’ procedure,
failed to significantly improve the situation of domestic
violence victims, in part because the procedure was
overly bureaucratic.55 A monitoring report published
in Romania, assessing the initial implementation of
its 2012 legal reform, revealed certain shortcomings,
including lengthy proceedings and a lack of public
awareness of the protection orders available to
domestic violence victims.
In Lithuania, some particularly disturbing homicides
sparked debates on the effectiveness of protection
measures. In March, a woman called the police’s
emergency response centre for help, saying that
her violent husband had returned in violation of
a restraining order. Six hours later, the victim’s
brother called again to inform the police that his
sister was dead. A number of similar cases occurred.
NGOs held a press conference stressing that protec‑
tion does not work in practice.56 On a similar note,
NGOs in Hungary voiced frustration that, despite
legislative reforms, little progress has been achieved.
They pointed out that victims often complain that
police officers’ attitudes fail to live up to the police
service’s brief, and that this discourages victims from
seeking their help.57
In Slovenia, recent legislative changes resulted in
the criminal offence of threatening another person
in cases of domestic violence being prosecuted only
on the basis of a motion made by the victim. Victims
must also pay for legal representation if they wish
to prosecute offenders for such offences.58 Bulgaria,
Latvia and Slovenia also stipulate, in certain cases,
that protection measures, investigation or pros‑
ecution depend on the initiative of the violent crime
victim. In contrast, an amendment to the Lithuanian
criminal code ensures that domestic violence offences
can be investigated and prosecuted even without
the victim’s consent.59
Following the institution of legislative reforms relating
to the EU Victims’ Directive, Member States have an
obligation to assess whether the victims’ situation
has improved, by monitoring the reforms’ impact and
looking at how victims have accessed the rights set
out in the directive.60 The conclusions of the Council
of Europe hearing on ‘Access to Justice for Women
Victims of Violence’ on 9 December 2013 empha‑
sised that lengthy criminal proceedings, high levels
of attrition, corruption, low conviction rates and dis‑
criminatory practices constitute serious barriers to
women victims of violence seeking justice and that
Council of Europe member states should continue to
address these issues.
218
9.4. EU focuses on
enhancing rights of
hate crime victims
Starting with the informal meeting of JHA ministers
on 17–18 January 2013 in Dublin, EU action countering
hate crime, racism, antisemitism, xenophobia and
homophobia was in focus throughout 2013 (see also
Chapter 6 on racism, xenophobia and related intoler‑
ance). In March, the European Parliament called on
the European Commission, the Council of the European
Union and the Member States to strengthen the fight
against hate crime and discriminatory attitudes and
behaviour, and called for a comprehensive strategy for
fighting hate crime, bias violence and discrimination.61
Similarly, the European Parliament urged Member
States to act against hate crime and to promote anti‑
discrimination policies, if necessary by strengthening
their national antidiscrimination bodies and promoting
training within public authorities.62
On 6 June, the JHA Council adopted conclusions on
fundamental rights, the rule of law and the European
Commission’s 2012 Report on the application of
the Charter of Fundamental Rights of the European
Union, which refers to hate crimes and the need to
assess the effectiveness of the EU legal norms in
fighting hate crimes.63
In October 2013, at the request of the Council of the
European Union, FRA submitted an Opinion on the
Framework Decision on Racism and Xenophobia – with
special attention to the rights of victims of crime. The
following month, following discussions on the legal
and policy framework and in view of the decision’s
revision, scheduled for the end of 2013, FRA used its
Fundamental Rights Conference in November 2013
to explore effective strategies to combat hate crime.
The conference, organised in cooperation with the
Lithuanian Presidency, brought together over 400 deci‑
sion makers and practitioners from across the EU. In
December 2013, acknowledging the important role
of FRA in providing expert independent analysis, the
Council of the European Union adopted its conclusions
on combating hate crime in the EU, inviting Member
States to ensure that bias motives are taken into
consideration throughout criminal proceedings; take
appropriate measures to facilitate the reporting of
hate crimes by victims, including looking at measures
to build trust in police and other state institutions; and
collect and publish comprehensive and comparable
data on hate crime.64 The Council conclusions call
on FRA to facilitate the exchange of good practices
amongst Member States (Action 19). FRA will hold
a seminar on hate crime in 2014, designed to set up
a community of practice. The seminar, which will take
Rights of crime victims
place on 28–29 April 2014 in Thessaloniki in coopera‑
tion with the Greek Presidency, will aim at promoting
continuous engagement with Member State authori‑
ties, mandated national human rights institutions and
civil society organisations.
FRA ACTIVITY
Going further in combating hate crime
At the request of the Council of the European Union,
FRA submitted, in October, an Opinion on the
Framework Decision on Racism and Xenophobia –
with special attention to the rights of victims
of crime.
In its opinion, FRA suggested that:
• legislation adopted at Member State level should
deal with all forms of discrimination on an
equal footing;
• due attention should be paid to making the bias
motivation underlying hate crimes visible
throughout criminal proceedings, including to
the public;
• legislation allowing courts to deal with bias‑moti‑
vated offences on the basis of increased penalties
is a particularly reliable means of ensuring that
discriminatory motives are taken into account;
• Member States are encouraged to facilitate the
reporting of hate crimes and to encourage victims
and witnesses to report such crime, such as by
looking into measures that could simplify bureau‑
cratic procedures and reporting;
• on the basis of clear and comprehensive guide‑
lines, Member States together with Eurostat
should, on an annual basis, collect and publish
data pertaining to crimes committed with a dis‑
criminatory motive.
The FRA opinion is available at: http://fra.europa.eu/en/opinion/
2013/fra-opinion-framework-decision-racism-and-xenophobiaspecial-attention-rights-victims
With regard to the recognition of different forms of
hate crime, Member States shifted focus in 2013 from
racism to include sexual orientation, gender identity
and transgender expressions. As part of this trend,
the Portuguese parliament, for example, unanimously
approved a revision of the criminal code that will ban
discrimination and hate crime against transgender
people. The parliament also added ‘gender identity’
alongside ‘sexual orientation’ to the list of discrimi‑
natory motives leading to an increased penalty for
murder.65 The parliament also stressed the reprehen‑
sibility of crimes motivated by the perceived sexual
orientation or gender identity of a victim. It is therefore
looking at making penalties more severe.66
In Belgium, the Minister of Justice, the Minister of
Internal Affairs and the College of Prosecutors General
issued a joint circular in June with the aim of estab‑
lishing a unified investigation and prosecution policy for
discrimination and hate crimes, including discrimina‑
tion on the basis of gender.67 In addition, the criminal
code was amended, introducing increased penalties for
manslaughter and intentional personal injury motivated
by hate and introducing the new criterion of hatred
of ‘sex reassignment as an aggravating motivation
for these offences.’68
Croatia also introduced changes to its criminal code in
2013, adding provisions on acts committed out of hatred
and incitement to violence against groups or their
members based on racial, religious, national or ethnic
affiliation, skin colour, sex, sexual orientation, gender
identity, disability or other traits.69 Slovakia amended
its Criminal Statute and Code of Criminal Procedure to
introduce stricter punishments for all criminal offences
motivated by national, ethnic or racial hatred as well
as hatred based on victims’ complexion and hatred
based on victims’ sexual orientation.70 Hungary also
amended its criminal code to include an increased pen‑
alty, ranging from two to eight years’ imprisonment, in
cases of violence against a member of a community,
national, ethnic or racial group, or against “other social
groups”, particularly based on disability, gender iden‑
tity or sexual orientation (see Section 6.2.1 for infor‑
mation on the FRA Thematic situation report Racism,
discrimination, intolerance and extremism: Learning
from experiences in Greece and Hungary).71
The Italian legislature also focused on the regulation
of repression and prevention of gender violence and
homophobic crimes through criminal law in 2013, with
parliament passing a bill to protect against homophobia
and transphobia. The bill extends to the grounds of
homophobia or transphobia the crimes of: discrimina‑
tion or incitement to discrimination (the Reale Law) and
violence or incitement to violence. It also considers as
aggravating circumstances those crimes committed for
purposes of discrimination or hatred (the Mancino Law).
In France, a proposal to extend the limitation period
from three months to one year for prosecution of
offences concerning sexual orientation, sex, gender
identity or disability reached the parliament in 2013.72
In the United Kingdom (England and Wales), the gov‑
ernment asked the Law Commission to look into the
possible extension of hate crime to offences committed
on grounds of discrimination including disability, sexual
orientation and gender identity. The Law Commission
launched a public consultation, which ran from June to
September 2013, to analyse the case for reforming the
existing statutory offences.73
219
Fundamental rights: challenges and achievements in 2013
Greece amended its criminal code in March, ­transposing
Article 4 of the Framework Decision on Racism and
Xenophobia which requires that a racist motive for
a crime be considered an aggravating circumstance.
The amendment provides that, for judicial sentencing,
“the commission of an act of hatred caused due to race,
colour, religion, descent, national or ethnic origin or
sexual orientation or gender identity of the victim con‑
stitutes an aggravating circumstance and the sentence
is not suspended”.74 In November, the Ministry of Justice
submitted a bill intended to implement Article 1 of the
same Framework Decision concerning public incitement
to bias crimes. Sexual orientation and gender identity
are not included as protected grounds, although all the
other grounds covered by the previous amendment of
the criminal code are included in the draft bill.
9.4.1. The need to tackle
under‑reporting by victims
FRA research has consistently pointed to victims’
systemic under‑reporting to police and to the need to
facilitate victims’ effective access to criminal justice.
As victims of hate crime are often unable or unwilling
to seek redress against perpetrators, many crimes
remain unreported, unprosecuted and therefore invis‑
ible. In such cases, the rights of victims of crime may
not be fully respected or protected and EU Member
States may not be upholding their duty to protect
fundamental rights, including their legal obligations
to protect and support crime victims as set out in the
EU Victims’ Directive.
Figure 9.1: Violence and harassment: most serious physical/sexual attack or threat of violence – did you or
anyone else report it to the police?
NL 34%
UK 33%
FR 32%
BE 31%
SE 27%
SI 27%
PT 26%
DK 25%
IE 25%
Average 24%
LT 24%
FI
23%
DE 22%
LU 22%
ES 22%
IT 20%
LV 20%
CZ 19%
AT 19%
HR 18%
PL 17%
EL 17%
MT 16%
BG 15%
RO 15%
CY 14%
EE 14%
HU 14%
SK 13%
13%
16%
19%
22%
25%
28%
31%
34%
Source: FRA, 2013; EU-LGBT survey data are available at: ­http://fra.europa.eu/DVS/DVT/lgbt.php?locale=EN&dataSource=
LGBT&media=png&width=740&plot=heatMap&topic=3.+Violence+and+harassment&question=fa2_11&superSubset=
1&subset=AllSubset&subsetValue=01--All&answer=01--Yes
220
Rights of crime victims
FRA survey findings show that victims of crime often
do not report crimes, whether to law enforcement
agencies, the criminal justice system, NGOs or victim
support groups.75 Three quarters (76 %) of the Jewish
people who say they were victims of antisemitic har‑
assment in the past five years, for example, did not
report the most serious incident to the police or to any
other organisation.76 The FRA LGBT survey found that
just one in five (22 %) of the most serious incidents
of violence which had happened to respondents in
the same time period because they were LGBT were
brought to the police’s attention (see Figure 9.1).77
Victims’ trust in the police and in their ability to react
to reports of victimisation in a manner sensitive
to victims’ rights and needs is crucial. In Bulgaria,
a three‑year programme, ‘European police and human
rights’, focuses on discrimination prevention as well
as on police performance in the light of international
human rights standards. One specific focus of the pro‑
ject’s training courses is on victims of bias‑motivated
crime and preventing their secondary victimisation.78
Another measure to improve a police service’s respon‑
siveness and sensitivity is the creation of specialised
units or contact officers.79
In Belgium, the police must appoint ‘reference officers’
to support their work on discrimination and hate crimes,
on the basis of a June 2013 circular. These officers are
tasked with raising public awareness, providing training
and information to their colleagues and monitoring the
police service’s performance in discrimination and hate
crime cases.80 Enabling victims to report crimes to the
police online is another way to increase reporting.
Promising practice
Reporting hate crime online
The police in the Netherlands developed an ­online
tool in 2013 to enable victims of hate crime to re‑
port the incident to the police anonymously. The
website explains the concept of hate crimes and
encourages reporting. Victims are invited to see
a police office and are informed about their rights
and legal proceedings.
This tool was inspired by True Vision, a web facil‑
ity providing information for victims and facilitat‑
ing the reporting of hate crimes, implemented by
the Association of Chief Police Officers in the
United Kingdom (England and Wales).
For more information, see www.hatecrimes.nl/info-en-links/
achtergrond and www.report-it.org.uk/home
Increasing the public visibility of hate crime and
holding perpetrators accountable is another area in
which Member States must make progress if they are
to combat hate crime successfully.81 The objectives of
acknowledging victims and increasing the visibility of
hate crimes lie at the heart of a royal decree the Spanish
government adopted in September, on the recognition
and comprehensive protection of victims of terrorism.
The decree also aims to improve victim support and
public administration coordination in relation to victims of
terrorism.82 Belgium increased the maximum penalty for
all crimes motivated by discriminatory attitudes through
legislation that entered into force in February 2013.83
Promising practice
Tackling discrimination and hate
crime – a police manual
In Poland, a practical guide to antidiscrimination
measures for the police defines and describes
various forms of discrimination. The manual of
good antidiscrimination practices advises on how
to deal with hate crime and discrimination cases
in a sensitive manner. The manual, published by
the National Network of Police Plenipotentiaries
for Human Rights Protection and funded by the
Polish police, benefited from the input of a num‑
ber of stakeholders, including the Polish Human
Rights Defender, the Government Plenipotentiary
for Equal Treatment and several civil society or‑
ganisations representing LGBT people, reli‑
gious minorities, people with disabilities and
the elderly.
For more information, see: Poland, Plenipotentiary of the
Commander Chief of Police for the Protection of Human Rights
(Pełnomocnik Komendanta Głównego Policji ds. Ochrony
Praw Człowieka) (2013), Human first (Po pierwsze człowiek),
Warsaw 2013, available at: http://isp.policja.pl/isp/
prawa-czlowieka-w-poli/aktualnosci/4344,dok.html
9.5. Member States address
rights of victims of
trafficking and severe
forms of labour
exploitation
In 2013, EU Member States continued to i­mplement
measures outlined in EU legislation tackling human
trafficking and labour exploitation, including:
Directive 2011/36/EU on preventing and combating
trafficking in human beings and protecting its vic‑
tims (Trafficking Directive); the EU Strategy towards the
Eradication of Trafficking in Human Beings 2012–2016;
the EU Victims’ Directive; Directive 2009/52/EC pro‑
viding for minimum standards on sanctions and meas‑
ures against employers of illegally staying third‑country
nationals (Employers’ Sanctions Directive); and the
draft Seasonal Workers Directive (see also Chapter 2
on border control and visa policy, and Chapter 4 on
the rights of the child and the protection of children).
221
Fundamental rights: challenges and achievements in 2013
At the international level, the entry into force of the
Convention concerning decent work for domestic
workers in September 2013 marked a major milestone in
the domestic work sector. Adopted in 2011 by the ILO, the
convention sets standards to protect domestic workers,
covering the right to claim rest days, the right to clear
terms and conditions of employment, the right to a min‑
imum wage and the right to social security coverage. The
convention also lays out measures concerning children’s
rights, including the abolishment of child labour.84
At the EU level, the JHA Council, at its 6–7 June 2013
meeting, prioritised for 2014–2017 the tackling of organ‑
ised criminal groups involved in trafficking for labour
exploitation and sexual exploitation, including those
groups using legal business structures to facilitate or
disguise their criminal activities.85 The deadline for
Member States to transpose the Trafficking Directive
into national law was reached in April. Negotiations on
the draft Seasonal Workers Directive come to an end,
with the Council of the EU and the European Parliament
reaching a political agreement on the text. The direc‑
tive was adopted in February 2014 (see also Chapter 1
on asylum, immigration and integration). It should har‑
monise the conditions of entry and residence and the
rights of migrant workers coming to the EU for seasonal
work, protecting them from labour exploitation.
The EU Anti‑Trafficking Coordinator continued to mon‑
itor the implementation of the EU Strategy towards the
Eradication of Trafficking in Human Beings 2012–2016.
Closely linked to the strategy, the EU Civil Society
Platform against Trafficking in Human Beings was
launched in May 2013. The Europe‑wide platform, set
up by the European Commission, will serve as a forum
for the exchange of experiences and concrete ideas on
how best to assist victims, expand their networks and
prevent others from falling victim to this crime. The
platform comprises over 100 civil society organisations
working at European, national and local levels in the
field of human rights, children’s rights, women’s rights
and gender equality, migrants’ rights and shelters.
Eurostat published a report, Trafficking in Human
Beings in the European Union, that reveals that 62 % of
victims are trafficked for sexual exploitation and 15 %
of victims are children. The report, issued in April, is
based on statistical data from all EU Member States.
9.5.1.
Most Member States increase
efforts to tackle human
trafficking
The majority of Member States took positive steps
in 2013 to strengthen national legislation to tackle
human trafficking and labour exploitation and
222
provide support to those who are victimised, in line
with EU legislation.86
Compensation was extended to victims of
­trafficking in several Member States, in line with
Directive 2011/36/EU, including Austria, Estonia,
Greece, Latvia87 and Luxembourg.
As a result of amendments to the Austrian Crime
Victim Act in 2013, third‑country nationals who are
victims of human trafficking now have access to
compensation and a right of residence for special
protection.88 The state is now also obliged to pay for
psychological treatment for victims and surviving
dependents up to a certain maximum amount
in cases of crisis intervention.89 Amendments to
Estonia’s Victim Support Act also provide for vic‑
tims’ – and on some occasions their relatives’ –
access to victim support, social services and state
compensation, in addition to creating a preliminary
measure allowing victims of trafficking to stay and
settle in Estonia.90
Belgium amended its criminal code in 2013,
­significantly extending the definition of human traf‑
ficking.91 As the Council of Europe’s Group of Experts
on Action against Trafficking in Human Beings
(GRETA) observed in its recent report on Belgium,
the ‘means’ element of trafficking – coercion, threat,
deception – no longer forms part of the definition of
trafficking under Belgian law; rather, such methods
are considered aggravating circumstances. While
acknowledging that this may contribute to making the
prosecution of traffickers easier in terms of evidential
requirements, GRETA stressed that this extension
may lead to confusion with other criminal offences,
or to difficulties regarding mutual assistance with
other countries in the anti‑trafficking field.92
In France, a law enacted in August 2013 provides
a new definition of human trafficking and modifies
the criminal code,93 defining organ retrieval, forced
labour or services and slavery as forms of exploita‑
tion that can characterise human trafficking.
In July 2013, Ireland passed criminal law legis‑
lation that extended the scope of exploitative
activities to comply fully with the provisions of
Directive 2011/36/EU.94 Other key provisions include:
the commission of a human trafficking offence
by a public official shall be treated as an aggra‑
vating circumstance for sentencing purposes; and
the adoption of the definition of the term ‘forced
labour’ to match the definition contained in ILO
Convention No. 29 of 1930 on Forced or Compulsory
Labour, in other words “all work or service which is
exacted from any person under the menace of any
penalty and for which the person has not offered
Rights of crime victims
himself voluntarily”. The 2008 Criminal Law (Human
Trafficking) Act did not define the term.
In Italy, the parliament passed a law empowering the
government to transpose the Trafficking Directive in
August 2013. The law provides measures to facilitate
coordination between the institutions responsible for
the protection and assistance of victims of trafficking
and those who have expertise on asylum, resulting
in improved referral mechanisms.
Portugal also transposed Directive 2011/36/EU into
the national legal system in 2013.95 The 2013 GRETA
report96 notes, however, that room for improvement
remains. GRETA said that Portugal could do more to
ensure the effective identification of victims; take
a more proactive approach to support through,
for example, proactive labour inspections and the
traini