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Spanish judiciary’s abuse of #HumanRights to come under scrutiny before UN and #ECtHR

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According to several submissions to the UN’s Universal Periodic Review, the Spanish legal system allows for violation of human rights, either by directly ignoring EU standards, or through loopholes in existing laws, writes Human Rights Without Frontiers Director Willy Fautré.

An emblematic case in point is the abuse suffered by the Kokorev family (Vladimir Kokorev, his wife and their son), in which the Spanish judge put three family members in a lengthy pre-trial detention, combined with no access to their case file (a regime called “secreto de sumario”), and particularly harsh prison conditions reserved for terrorists and violent criminals (called FIES regime under Spanish laws).

According to attorney Scott Crosby, who submitted an application in July on behalf of Vladimir Kokorev to the European Court of Human Rights, a Spanish judge imprisoned all three family members from 2015 to late 2017 on a vaguely worded suspicion of money-laundering. No formal charges were laid, nor “could they be laid because there was no evidence that the Kokorevs had handled illicitly generated money”, Crosby says in his submission. Towards the end of these two years of imprisonment, detention was extended for a further two years, still in the absence of a formal charge and evidence of a predicate crime. On appeal this was commuted to territorial confinement which restricted the family to Gran Canaria and required them to report weekly to the local court.

During their pre-trial detention, the Kokorevs were robbed of their presumption of innocence, being treated in all respects as dangerous prisoners such as terrorists, sexual offenders or war criminals (FIES-5, the highest and harshest level of detention conditions) although they had never used or incited violence and had no prior criminal record, in Spain or elsewhere.

Over the last fifteen years, the European Parliament and the Council of Europe, in particular the Committee of Prevention of Torture (CPT), have expressed serious concerns and warnings about the FIES system. According to the submission of Human Rights Frontiers, the FIES - 5 status, to which the Kokorev family was subjected resulted in:

“...frequent changes of cell, the use of mechanical restraints when being moved, restricted visits and allowing the prison administration to monitor and record without judicial authorisation all of their communications and visits… [denial of] the benefit of European Prison Rules, such as the right to be detained separately from convicted prisoners...day release...contact between the family…[and the option to post] bail. Alternatives to incarceration were not considered or offered.”

Furthermore, the Kokorevs were subjected to the secreto de sumario regime, which meant that neither they nor their lawyers had any access to the Court files, the evidence, or the reasoning being used by the judge to keep them in prison.

As Human Rights Without Frontiers’ submission to the UPR explains: “Significantly, this case offers a unique corroboration that the Directive 2012/13/EU of the European Parliament and of the Council of 22 May 2012 on the right to information in criminal proceedings (which should prevent the secreto de sumario from being used in the context of pretrial detention), has not been properly implemented by Spain via the Ley Orgánica 5/2015 of 27 April 2015.”

Another joint submission by a number of Spanish law firms that specialise in criminal and penitentiary law, denounces that pretrial imprisonment is used by Spanish judges to “soften” the person under investigation. The submission concludes, after explaining that Spain takes a predominantly inquisitorial approach to the criminal investigation, that: “This tendency towards the abuse of pretrial imprisonment is the result of (a) the features of the Spanish criminal system, in which there is an investigative judge; (b) the opportunities for the investigation derived from pretrial imprisonment, particularly when it is applied simultaneously with other measures that exist in the Spanish legal system, such as the secreto de sumario and the FIES, and (c) the fact that the right to compensation for [unlawful] pretrial imprisonment is contingent upon [proof of] innocence (there even existing different kinds of innocence for these purposes)."

Stakeholder submissions called for Spain to be held accountable for these human rights violations. Repeated recommendations from various voices call Spain to abolish the secreto de sumario and FIES system, to respect the presumption of innocence, and to reform the practice of lengthy pre-trial detention.

Currently, the Kokorev Case seems to be the only instance in which a Spanish judge used these three measures in combination with each other and therefore will also be the first chance for the European Court of Human Rights to rule on this kind of practice.

 

 

 

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EU criticizes UK's unilateral breach of Northern Ireland Protocol

EU Reporter Correspondent

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Following the UK government's statement today (3 March), that they intend to unilaterally extend the grace period for certain provisions agreed in December with the UK, European Commission Vice President Maroš Šefčovič (pictured) has expressed the EU's strong concerns over the UK's action, as this amounts to a violation of the relevant substantive provisions of the Protocol on Ireland/Northern Ireland and the good faith obligation under the Withdrawal Agreement.

This is the second time that the UK government is set to breach international law.In its statement the Commission states that the UK's action constitutes a clear departure from the constructive approach that has prevailed up until now, thereby undermining both the work of the Joint Committee and the mutual trust necessary for solution-oriented co-operation.

The UK did not inform the EU co-chair of the Joint Committee. The statement says that the matter was one that should have been addressed under the structures provided by the Withdrawal Agreement. Vice President Šefčovič has reiterated that the Protocol on Ireland/Northern Ireland is the only way to protect the Good Friday (Belfast) Agreement in all its dimensions and to avoid a hard border on the island of Ireland.

The EU has been flexible in trying to find practical workable solutions, based on the Protocol, to minimize disruption caused by Brexit and to help facilitate the everyday life of communities in Northern Ireland. The Joint Committee formally endorsed these solutions on 17 December 2020 in order to help businesses adapt to the new reality.

The vice president has also recalled that at the last EU-UK Joint Committee on 24 February, the UK reiterated its commitment to the proper implementation of the Protocol, as well as the implementation without delay of all decisions taken in the Joint Committee in December 2020.

He also recalled that the mutually agreed joint engagement with Northern Irish business groups and other stakeholders was meant to jointly look into solutions. In a phone call, Šefčovič informed David Frost that the European Commission will respond to these developments in accordance with the legal means established by the Withdrawal Agreement and the Trade and Co-operation Agreement.

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Hungary's Fidesz party leaves largest EU parliamentary group

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Hungary’s ruling Fidesz party said today (3 March) it was leaving the largest centre-right political group in the European Parliament after the faction moved towards suspending it in a tug-of-war over Prime Minister Viktor Orban’s democratic record, write Marton Dunai and Gabriela Baczynska.

Fidesz’s departure from the European People’s Party (EPP) group is likely to reduce Orban’s influence in Brussels following a long conflict over his perceived backsliding on the rule of law and human rights.

“I hereby inform you that Fidesz MEPs resign their membership in the EPP Group,” Orban wrote in a letter to the faction’s head, Manfred Weber, which was published on Twitter by Katalin Novak, a Fidesz deputy chairwoman.

The EU has lambasted Orban for putting courts, media, academics and non-governmental organisations under tighter government control. Orban, who faces a national election next year, denies the criticism and has refused to change tack.

“I welcome the long overdue departure of Fidesz and Viktor Orban from mainstream European politics,” said Dacian Ciolos, head of a liberal group in the European Parliament. “There is no space for the toxic populism of Fidesz in mainstream European politics.”

Earlier on Wednesday, the EPP group voted overwhelmingly to allow for suspension and to make ejection of member parties easier. A separate motion to freeze out Fidesz was expected soon.

Calling the changes “a hostile move against Fidesz”, Orban reacted before the EPP faction denied its 12 Fidesz members the right to speak on behalf of the group or represent it in other work of the chamber.

In his letter, Orban wrote that limiting the ability of Fidesz members of the European Parliament to carry out their duties “deprives Hungarian voters of their democratic rights”.

The conservative EPP faction includes German Chancellor Angela Merkel’s CDU, Poland’s opposition Civic Platform, Belgian Christian democrats, France’s Les Republicains and others.

Without the 12 Fidesz members, it will have 175 EU lawmakers and remain the largest in the 705-strong chamber.

Fidesz has been suspended from the EPP pan-European party since 2019, though its EU lawmakers have so far remained in the conservative faction in the European Parliament.

Forcing a university founded by liberal billionaire George Soros to leave Hungary and Budapest’s opposition to strict conditions on receiving EU funds were “fundamental” problems, Weber said.

Mujtaba Rahman of the Eurasia Group think tank said the development was “a big strategic loss for Orban in Europe, who will now lose both the influence and protection that the EPP afforded him”.

“His departure from the EPP will lead to him adopting more extreme positions towards Brussels and escalating tensions between the two,” he said.

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EU auditors probe the protection of air passenger rights during COVID-19 crisis

EU Reporter Correspondent

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The European Court of Auditors (ECA) has launched an audit to assess whether the European Commission has been safeguarding effectively the rights of citizens who travelled by plane or booked flights during the coronavirus crisis. The auditors will examine whether the current rules on air passenger rights are fit for purpose and resilient enough to deal with such a crisis. They will check whether the Commission monitored that air passengers’ rights were respected during the pandemic and took action accordingly. In addition, they will assess whether member states took passenger rights into account when granting emergency state aid to the travel and transport industry.

“In times of COVID-19, the EU and member states have had to strike a balance between preserving air passenger rights and supporting the ailing airlines,” said Annemie Turtelboom, the ECA member leading the audit. “Our audit will check that the rights of millions of air travellers in the EU were not collateral damage in the fight to save struggling airlines.”

The COVID-19 outbreak and health measures taken in response have brought about major travel disruption: airlines cancelled around 70 % of all flights and new bookings plummeted. People no longer could or wished to travel, also because of the frequently uncoordinated emergency measures by different countries, such as flight bans, last-minute border closures or quarantine requirements.

EU Member States introduced further emergency measures to keep their struggling transport industry afloat, including airlines, for example by granting them unprecedented amounts of state aid. Some estimates show that throughout the crisis, until December 2020, airlines – including non-EU ones – had obtained or were obtaining up to €37.5 billion in state aid. In addition, twelve member states notified the Commission of state aid measures to prop up their tour operators and travel agencies to the tune of some €2.6bn.

Member states also allowed airlines more flexibility in refunding passengers whose flights were cancelled. The Commission issued guidelines and recommendations, including the fact that offering vouchers does not affect the passengers’ entitlement to a cash refund. However, the passengers whose flights had been cancelled were often pressured by airlines to accept vouchers instead of receiving a cash refund. In other cases, airlines did not refund passengers on time or not at all.

The EU auditors’ report is expected before the summer holiday with the aim of supporting air passengers in times of crisis and launching a general attempt to restore trust in aviation. In the context of this audit, the auditors are also checking whether the recommendations they made in their 2018 report on passenger rights have been put into practice.

Background information

Protecting passenger rights is an EU policy with direct impact on citizens and thus highly visible across member states. It is also a policy which the Commission considers to be one of its great successes in empowering consumers, as their rights are guaranteed. The EU aims to provide all air transport users with the same level of protection. The Air Passenger Rights regulation gives air travellers the right to cash refunds, to re-routing and on-the-ground support such as free meals and accommodation if their flights are cancelled or significantly delayed, or if they are denied boarding. Similar protection exists via a European Directive for people who book package deals (e.g. a flight plus hotel).

For more detail, see the audit preview 'Air passenger rights during the COVID-19 crisis', available in English here. Audit previews are based on preparatory work before the start of an audit, and should not be regarded as audit observations, conclusions or recommendations. The ECA recently published two reviews of the EU’s response to the COVID-19 crisis, one on health and the other on economic aspects. Its work programme for 2021 announced that one in four of its new audits this year will be related to COVID-19 and the recovery package.

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