On the occasion of the EU Summit 4-5 November 2004 adopting the Hague Programme"strengthening freedom, security and justice" in the EUAmnesty International takes this opportunity to address the European Council with a critical reflectionon the human rights content of the Hague Programme due to be adopted this week as a five-yearpolicy framework designed to “strengthen freedom, security and justice” in the European Union.The first listed objective of the Hague Programme is “the improvement of the common capability ofthe Union and its Member States to guarantee fundamental rights, minimum procedural safeguardsand the access to justice…”. It is significant that fundamental rights now appear to be firmly placed atthe heart of the EU’s ambition to strengthen freedom, security and justice. The recent pledge of thenew Commission President to make civil rights and action to combat discrimination a top priority forthe Commission provides further reinforcementHowever, Amnesty International has become increasingly concerned that despite the intentions andappropriate references to fundamental rights there is too much of a vacuum in the substance of theprogramme as to how the stated ambition is to be realized. There is a lack of coherence when it comesto the instruments and structures needed to safeguard fundamental rights, and a lack of resources tomatch. The fact that asylum is principally a human rights issue seems to be lost amid all the discoursesurrounding migration management. With the EU’s justice and home affairs agenda driven bycounter-terrorism and the fight against “illegal immigration”, there is a growing risk of a one-sidedemphasis on “security” at the expense of the elements of “justice” and “freedom”.Over the past five years we have seen an unwillingness on the part of the Council in particular toacknowledge and address human rights problems within the EU’s own borders. This complacencycontrasts more and more sharply with the scrutiny of the human rights performance of the candidatecountries in the ongoing enlargement process. The sudden move to set up a Human Rights Agencydoes not prove that there is a real willingness yet to engage in self-reflection, and the Commission’ssuggestion that the agency should be “a lightweight structure in terms of staff and budget”1does notinspire confidence. Negotiations over procedural safeguards still lag behind the drive to intensifyjudicial cooperation, while the mutual recognition which is to underpin such cooperation cannot hidethe lack of basic mutual trust given the significant differences in the standards of justice across theEU.In the field of asylum we have witnessed the adoption of a very low common denominator ofminimum standards that allow Member States to continue competing with their restrictive policies andthat in some respects breach international law. At the same time there is a marked shift to counter“illegal immigration” through engaging with third countries in ways that blur the fine line betweencooperation and pressure. It is remarkable that the United Nations High Commissioner for Refugeeshas seen the need on more than one occasion to caution the EU not to forego its refugee obligationsand risk undermining the international protection system.

It is against this background that Amnesty International has put forward a series of observations andproposals regarding the way the human rights dimension should be strengthened in the nextmultiannual programme for the area of freedom, security and justice2. In this final appeal we remindthe European Council of our main concerns and recommendations.

Fundamental rights

The inclusion of a reference to a proposal for the creation of ‘a Human Rights Agency in order todevelop a human rights data collection and analysis with a view to defining Union policy in this field’is not sufficient to demonstrate that this objective will be taken seriously in practice and adds nothingto the status quo. The EU must face up to the issue that, at Council level, there is no forum to addressissues relating to fundamental rights within the EU. The creation of an ad hoc mechanism to deal withthe immediate question of a proposal for a Human Rights Agency does not answer the pressingquestion of collective responsibility at EU level for actual and potential human rights violations inMember States – in particular, the failure of the Council to respond to the 2003 CommissionCommunication on the application of Article 7 TEU3.

Procedural safeguards

The initial orientations from the Presidency4referred to the fact that ‘with specific regard to criminalprocedure, the development of a shared set of procedural safeguards could help strike the necessarybalance between the need to fight crime effectively and the need to protect individuals’ fundamentalrights’. It is disappointing to see that in the final programme this balance has been abandoned infavour of ‘due respect for the legal traditions of Member States’, once more demonstrating that theEU is unwilling to take on board its collective responsibility for the respect of fundamental rightswithin its borders and instead hides behind political arguments on sovereignty.

Access to justice

Amnesty International is pleased to see that the Hague Programme institutes a new system ‘forobjective and impartial evaluation of the quality of justice, whilst fully respecting the independence ofthe judiciary and consistent with all the existing European mechanisms’. However, there is reason tobe concerned about the effectiveness of such an evaluation without a mechanism to address anyshortcomings that are found, for example through technical assistance or, in extreme circumstances,through the possible application of Article 7 TEU. The absence of consideration in the HagueProgramme for EU resources for funding of practical aspects of access to justice such as, for examplelegal aid or free interpreting also calls into question the practical value of the programme in terms ofimproving access to justice across the EU.

The implied link between ‘terrorism’ and migration

Amnesty International is particularly concerned about the perceived link between migration controland ‘terrorism’ or other forms of serious and organised crime. The Hague Programme places a highpriority on combating racism and xenophobia yet the creation of a link between migrants andterrorism risks exacerbating this very problem and is unjustified – there is no reason to differentiatebetween EU nationals and third country nationals in the context of counter-terrorism.

Common European asylum system

EU Member States have now formally adopted or agreed the building blocks that were required by theAmsterdam Treaty to achieve a first phase of establishment of a common European asylum system.These instruments set out minimum standards and leave a wide margin of discretion. AmnestyInternational holds that Member States should go beyond the lowest common denominator and ensurethat national legislation is in full compliance with standards of international human rights and refugeelaw. In the same vein, while welcoming the commitment to a single asylum procedure AmnestyInternational is concerned that the common asylum system is to be based on the low standards agreedso far and urges Member States to amend the directive on asylum procedures in order to ensure thatbasic guarantees are fully available in fast track, admissibility and border procedures.While the Hague Programme makes suggestions to facilitate practical cooperation, the framework forsuch cooperation remains essentially inter-governmental. It is defined in very vague terms as to thespecific means and resources, and leaves remaining protection and solidarity gaps notably in thecontext of enlargement unaddressed.

The external dimension of asylum and migration

The Hague Programme marks a decisive shift in the EU’s ambition to take the fight against “illegalimmigration” into the domain of external relations. “Partnership” with third countries has become aprincipal focus in efforts to stop people from entering the EU. However, as we have seen in the recentdiscussions over ‘reception facilities’ in neighbouring countries, there is a mass of questions to beanswered in regard to the stated ambitions to control immigration, provide humanitarian assistanceand support capacity building if protection obligations are to be fully respected. It is significant tonote that the conditions on third countries for such cooperation have been watered down from“fulfilling the obligations under the Geneva Convention” to “demonstrating a genuine commitment tofulfil the obligations”.The external dimension of asylum and immigration opens up a highly complex area in which it will beextremely important:•to ensure strict adherence to standards of international human rights and refugee law and inparticular to the principle of non-refoulement;•to safeguard the possibility for those in need of protection to access safety and have their claimsproperly processed; and•to prevent “solutions” in the sphere of reception in regions of origin and more generally migrationmanagement prejudicing the right to seek asylum spontaneously and having the effect ofundermining the international protection system.Amnesty International expresses the hope that the European Council will take its concerns andrecommendations into account in setting out the next multiannual programme for the area of freedom,security and justice, and that they will contribute to closing the gap between rhetoric and practice inregard to the realization of fundamental rights in the European Union.