Month: March 2021

Unequal Representation of Stakeholders in the Commission’s Impact Assessment Process and the Protection of the Decision-Making Process

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Photo by Christian Lue

Dr. Carlo Petrucci, Lecturer in Law at the University of Essex, had a new article published in the European Review of Public Law (ERPL).

Participation of interest groups in the Commission’s decision-making process is a vital part of EU policy-making. Nonetheless, some interest groups are over-represented during this process due to their resources and information capabilities. As a result, they are capable of exerting considerable influence on the Commission’s decision-making process.

This problem is particularly severe during the impact assessment process where interest groups submit information through stakeholders’ consultations. They also request access to impact assessment documents in order to know the information held by the Commission during the preparation of a legislative proposal.

Against this background, the issue is whether unequal representation of stakeholders during the impact assessment process undermines the Commission’s decision-making process, thus justifying the Commission to refuse access to impact assessment documents (Article 4(3), Regulation No. 1049/2001).

In ClientEarth (C-57/16), the Court of Justice of the EU rejected this argument, but Dr. Petrucci’s article argues that in the absence of countervailing information, over-representation of stakeholders is capable of compromising the Commission’s decision-making process and the Commission may therefore justifiably prevent over-represented stakeholders from accessing impact assessment documents.

Dr. Petrucci’s article appears in Vol. 31, Issue No. 4 (114) of the ERPL. The ERPL examines a wide range of issues that relate to the European Union, the European Convention on Human Rights, the national public law and practices, as well as to their mutual interaction and influence. 

Marketers in Hot Water: ASA Rulings During the COVID-19 Crisis

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Photo by Luca Bravo

Dr. Alexandros Antoniou, Lecturer in Media Law, University of Essex

Being conscious of its regulatory role during the ongoing global health crisis, the Advertising Standards Authority (“ASA”), the UK’s regulator of advertising across all media, aims to act with due regard to the circumstances faced by businesses in the current emergency. Since the beginning of the pandemic, the regulator seems to have adopted a layered approach to the implementation of its rules.

‘Forbearance’

Following the Chancellor’s reference to “possible regulatory forbearance” in his March 2020 speech on the government’s measures to address the economic emergency, the regulator announced it would adjust accordingly its regulatory approach towards relatively minor advertising indiscretions by businesses facing an “existential threat” e.g., the hospitality industry, event organisers etc.

Where a marketer, for example, was unable to carry out or had to rethink elements of a promotion because the impact of COVID-19 had derailed their original plans (e.g., by creating unanticipated high demand of a product or service) and failed to put in place suitable management measures to justify amending a promotion and communicate this to consumers in a timely fashion, a more light-touch approach may be warranted where a breach of the rules on promotional marketing could not have sensibly been foreseen. Or, an advisory rather than investigatory approach may be adopted where it was the first time a complaint was raised against an advertiser.

A tougher approach

During a period which saw an intense sale of high-demand products (e.g., hand sanitisers), the regulator seems to have escalated its regulatory interventions in cases where marketers have unfairly taken advantage of the ongoing global disruption for financial gain or acted in a way that disadvantages consumers. Key areas of concern that have emerged so far include medical claims about COVID-19, alternative and complementary therapies, food supplements as well as irresponsible advertising practices.

The regulator is likely to take a dim view of an advertiser who makes unsubstantiated ‘medical or medicinal claims’ as such claims may only be made with respect to licenced medicines or appropriately marked medical devices in compliance with Sections 11 and 12 of the BCAP and CAP Codes respectively. For example, the ASA banned a paid-for Facebook ad and a website post for a COVID-19 test provider which gave the impression that a positive antibody test would show that people were immune to the virus (ASA Ruling on XMedical Ltd t/a Corona Test Centre, 14 Oct. 2020). The regulator also banned an ad in The Sun making unsubstantiated claims that a reusable copper-infused face mask would instantaneously kill particles of COVID-19 that came into contact with it (ASA Ruling on Easylife Group Ltd, 11 Nov. 2020).

Unsubstantiated reduction of disease risk claims or claims that food supplements can prevent or treat coronavirus infection can be particularly problematic. The ASA targeted, for example, Instagram posts from the accounts of Cosmetic Medical Advice employees which implied that an intravenous fluid drips treatment could help prevent people from catching coronavirus (ASA Ruling on Cosmetic Medical Advice UK, 22 Apr. 2020). In an another ruling, a national newspaper ad for a brand of honey was banned for implying that it could be used as a treatment for coughs and that its “anti-microbial” properties could prevent or treat human diseases (ASA Ruling on Manuka Doctor UK Ltd, 6 Jan. 2021). Sections 13 and 15 of the BCAP and CAP Codes limit nutrition claims about foodstuffs to only those expressly listed as authorised on the EU Register of Health Claims.

Moreover, the ASA tends to rely on its general rules on social responsibility (Section 1 of the BCAP and CAP Codes) and material misleadingness (Section 3 of the BCAP and CAP Codes) when targeting ads that seek to profit from the ongoing public health emergency. For instance, in December 2020, following complaints by Stella Creasy, Labour/Co-operative Member of Parliament of the United Kingdom, the ASA banned four Instagram posts made by influencers in association with Klarna Bank for promoting the use of the company’s deferred payment service in an “irresponsible manner” in breach of the advertising code (Ruling on Klarna Bank AB, 23 Dec. 2020). The controversial ads encouraged the use of credit to purchase beauty and clothing products in order to help with boosting people’s mood during the challenging circumstances faced by many consumers in the national coronavirus lockdown period.

More recently, the ASA banned Ryanair’s “jab and go” TV campaign on the grounds that it encouraged the public to act irresponsibly once they had received a coronavirus vaccination shot (Ruling on Ryanair DAC, 3 Feb. 2021). The ban came just days after the Ryanair chief executive, Michael O’Leary, stated in a BBC Radio 4 interview that he expected a revival of European beach holidays in summer 2021.

The Ryanair ruling deserves perhaps a more detailed consideration because it is the first ad with a marketing message about emerging from the pandemic that was found in breach of the regulator’s rules.

Photo by Portuguese Gravity

‘Jab & Go!’: addressing the post-COVID-19 life

The two controversial television advertisements launched on Boxing Day and were seen between 26 December 2020 and 4 January 2021. The first ad featured a medical syringe and a small bottle labelled “vaccine” along with on-screen text stating “vaccines are coming”. The voice-over encouraged consumers to snap up Easter and Summer bargain deals to sunny European countries like Italy and Greece, because “you could jab and go”. Footage also showed people in their 20s and 30s at holiday destinations. During the last few seconds of the ad further on-screen text reinforced the same message with large lettering stating: “Jab & Go!” The second ad was similar, except that it included a different price offer.

The advertisements attracted 2,370 complaints and were challenged on three grounds: first, that the ads, and particularly the “Jab & Go” claim, were misleading because they gave the impression that large parts of the UK population would be vaccinated against COVID-19 by Summer 2021 and unaffected by travel restrictions related to the pandemic; second, that the promotional statements in the ads were offensive because they trivialised the effects of the pandemic on society; and finally, that the ads encouraged people to behave irresponsibly once they received a coronavirus vaccination shot.

The commercial aircraft carrier submitted that their ads were first broadcast at a time during which the government continued to give “optimistic briefings” implying that a significant proportion of the population would be vaccinated midway through the year. In addition to the timing of the ads’ broadcast, the general public’s familiarity with information about the vaccines, the rollout schedule, the continuously changing international travel restrictions and inherent uncertainty in the travel industry, as well as the use of conditional language in the voice-over (“could”), were all important contextual factors which would enable the average viewer to understand the ads envisaged “a hypothetical Easter or summer holiday.”

However, it was exactly this context, marked by uncertainty and complexity, that placed an additional level of responsibility on advertisers to act cautiously when linking developments in response to the coronavirus pandemic with buyers’ decision-making processes, especially at a time when consumers were likely to feel apprehensive about booking holidays.

A misleading and irresponsible ad

The ASA found that both ads breached Rule 3.1 of the UK Code of Broadcast Advertising (BCAP Code) by materially misleading consumers about the impact that COVID-19 vaccines would have on their ability to travel abroad during Easter and summer 2021. The regulator considered that the information available at the time the ads were broadcast left no doubt that it was “highly unlikely” that societal groups falling outside the priority list for ‘phase one’ of the planned vaccination rollout schedule (i.e., the most vulnerable individuals in society) would be maximally protected in time to go on holiday in either Summer or Easter 2021.

Moreover, while the vaccines have been proved to provide some protection against developing serious illness, much is unknown about how the vaccine may prevent its spread from one person to another. Hence, vaccinated individuals are advised to continue adhering to social distancing and wearing face coverings. Such measures were likely to remain in place for both vaccinated and non-vaccinated people “in at least the short- to medium-term”, the ASA stressed.

The overall impact created by the elements of the ad, including links to the planned vaccination rollout in the ad and the accompanying footage (featuring a group of young people jumping together into a pool and a couple being served by a waiter without a mask) overshadowed the conditionality of the word “could” and conveyed a misleading message: i.e., that most people who wished to go on holiday would be vaccinated in time to be in a position to do so and could go on holiday without restrictions as a direct result of being vaccinated against COVID-19.

The ads were also found to have breached Rule 1.2 of the BCAP Code, which requires marketers to prepare advertisements with a sense of responsibility to the wider society. The emphasis on the vaccines from the very outset, as well as the suggestion of immediacy and speed of access through the claim “Jab & Go”, encouraged people to behave irresponsibly by prompting those not yet eligible to be vaccinated to arrange vaccination at a time when health services came under intense strain. Moreover, the featured imagery of people enjoying typical holiday activities without observing social distancing would lead some viewers to infer that it was possible for anyone to get vaccinated by Easter or summer 2021 and go on holiday once vaccinated without necessarily adhering to restrictions, posing risks for their own and others’ health.

But not an offensive ad

The ASA ruled, however, that the Ryanair ads did not breach the harm and offensiveness rules under Section Four of the BCAP Code. Although their “celebratory” tone was “distasteful” to some viewers, they were not found to be insensitive to the wider impact of the pandemic and were unlikely to cause serious or widespread offence against generally accepted societal standards. Presumably, the position would have been different, had the ad made light of the emotional toll the pandemic has taken on individual and collective well-being or otherwise trivialised its effects.

Interestingly, the evaluation made by Clearcast, the non-governmental organisation which pre-approves ads for broadcast on the UK’s main commercial channels, was out of step with the ASA’s assessment. Clearcast took the view that the Ryanair ads contained “a hopeful message” that holidaying in summer 2021 without social distancing was a real possibility and when the ads were approved (when England was coming out of its second lockdown) “it looked like better times were coming”.

The Ryanair ruling serves as a useful reminder that, in the aftermath of the Prime Minister’s announcement about England’s roadmap for easing coronavirus measures, marketers who promote services or events that necessitate lifting of business or travel restrictions need to exercise caution when dealing with post-lockdown life. This is especially the case when links are made between fast-moving developments in the country’s response to the pandemic and the consumer’s confidence in purchasing a product or service. Finally, the Ryanair ad creates an opportunity to look into the regulator’s approach to the application of its harm and offence rules in the COVID-19 context.

Harm and offence in the time of coronavirus

At the time of writing, and since the onset of the pandemic, only five coronavirus-related rulings engaged the harm and offensiveness rules under Section Four of the advertising codes. With the exception of the Ryanair ruling, complaints were upheld in all four cases. However, only one of those was found to have crossed the line in terms of harm. The ASA’s justifications for banning the remaining three were couched in offensiveness terms.

More specifically, a newspaper and Instagram post by a hemp shop were deemed ‘harmful’ because they described COVID-19 as a “hoax” and “incited” people to break the law by discouraging them from wearing face coverings in shops (ASA Ruling on Geraint Christopher t/a Hemp in Avalon, 2 Dec. 2020). Concerns about harm in coronavirus-related advertising content seem to be associated with marketing messages which raise the risk that consumers’ trust in public health advice could be undermined, with potentially serious consequences not only for their own but also others’ health. This broad approach to societal harm is noteworthy in this context. Some parallels may be drawn with the Ofcom’s (the UK’s communications regulator) approach, which has also found harm arising from broadcast content contradicting official governmental guidance.

Offensiveness manifested itself in a product listing on Amazon as well as paid-for display ads and website claims about face coverings that made use of alarmist language likely to cause fear without justifiable reason (ASA Rulings on Easy Shopping 4 Home Ltd and Novads OU, 4 Mar. 2020). A newspaper ad for mattresses was also banned for being offensive because it associated immigrants with diseases such as the coronavirus (Ruling on Vic Smith Bedding Ltd, 11 Mar. 2020). That stated, the ASA seems to have overlooked in the former cases the potential for significant harm to the wider society arising from exploiting people’s health-related fears or anxieties. Also, by examining the Vic Smith Bedding ad through the lens of offensiveness, the regulator seems to have discounted the potential harm to ethnic minority groups who have been assaulted or denied services, like transport, because of fear that they may pass on the virus. It may also be suggested that the ASA minimised the importance of the role of advertising in potentially exacerbating or reinforcing socially harmful attitudes. The media have also reported cases of xenophobia and racist attacks against students of Asian descent due to the virus originating in China.

Arguably, each of the rulings referred to above regarding medicinal claims, food supplements and alternative treatments could have the effect of exploiting consumers’ health-related fears to persuade (or in certain instances even mislead) them to buy the service or product. Yet, reference to the harm and offensiveness rules was made in none of them. Given the sensitivities of the pandemic and its ongoing impact, the potential for societal harm which can arise from appeals to insecurities that encourage ill-advised purchasing decisions should not be underestimated.

This piece was first published on The International Forum for Responsible Media and is reproduced here with permission and thanks.

‘Old-fashioned alpha males’ against ‘professional homosexuals’: media justice and discriminatory reporting in the wake of the Greek #MeToo movement

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Photo by Mika Baumeister

Dr. Dimitris Akrivos, Lecturer in Media Law, University of Essex

From the exposure of Hollywood producer Harvey Weinstein’s crimes to the Westminster sexual harassment scandal, the #MeToo movement has in recent years spread around the world, empowering survivors of sexual violence to share their traumatic experiences on social and news media. It was not until January 2021, however, that the impact of the movement became apparent in Greece.

Talking in an online event about the protection of children in sports on the 14 January 2021, Greek Olympic medallist Sofia Bekatorou publicly accused the vice president of the Hellenic Sailing Federation of sexually assaulting her in 1998. Bekatorou’s allegations led to the emergence of the hashtag #metinSofia (i.e. with Sofia) on Twitter with many other athletes but also actresses, singers and influencers following her example and reporting their own experiences of physical and/or psychological victimisation by powerful men (including famous actor Giorgos Kimoulis as well as actor and former Deputy Minister of Social Security Pavlos Haikalis). It was no surprise that, due to the celebrity status of many of the alleged victims and perpetrators, such claims dominated the Greek news agenda during these past two months alongside stories about the COVID-19 pandemic.

In February 2020, the Greek #MeToo movement acquired even greater momentum with clear political ramifications when former director of Greece’s National Theatre Dimitris Lignadis was remanded over allegations of serial rape – some of which involved underage victims. Responding to criticisms for appointing Lignadis, culture minister Lina Mendoni stated that he is a ‘dangerous man’ who ‘deceived her’ and ‘with deep acting talent tried to convince her that he had nothing to do with all this’. At the same time, Lignadis’ defence attorney Alexis Kougias dismissed the allegations against his client as a ‘crude fabrication’ made by ‘professional homosexuals’.

The news media’s involvement in Lignadis’ and all the other cases forming part of the Greek #MeToo movement constitutes an indicative example of what Greer and McLaughlin (2010: 27) define as a trial-by-media: ‘a dynamic, impact-driven, news media-led process by which individuals – who may or may not be publicly known – are tried and sentenced in the “court of public opinion”.’ In the era of 24/7 news, media seek to perform an alternative function of ‘justice’ which runs parallel to that administered by formal institutional authorities. There is an undeniable benefit in shedding light to such historic cases of sexual violence and thereby encouraging an honest, free-from-stigma discussion around the issue. Despite its belated emergence (or possibly because of it) the Greek #MeToo appears to extend the boundaries of the movement even further by also placing emphasis on cases of gender-based workplace bullying as well as male victimisation.

The shortcomings of this ‘trial-by-media’, however, including its impact on the defendant’s right to a fair trial, the consequent reputational damage and the risk of vigilantism also need to be taken into consideration. In the context of the ongoing discussion on the allegations made, journalistic objectivity and due process can easily give way to moralising, sensationalist speculation about the motives and actions of the accused who are assumed to be ‘guilty until proven innocent’ and therefore deserving to be ‘named and shamed’.

In addition, the homophobic dimension of some of the relevant mediated discourse also need to be highlighted. From the Greek state television censoring a gay kiss from an episode of Downton Abbey to bishop Amvrosios publicly urging people to ‘spit on gays’ because they are ‘freaks of nature’ and the killing of LGBT+ activist Zak Kostopoulos by the police, there is still a lot of progress to be made in order for LGBT+ people to achieve equal rights in Greek society. This is something that became even more apparent with the recent rise of the Greek #MeToo.

Apart from Kougias building Lignadis’ defence around claims (in Greek) of ‘crude lies’ told by ‘professional homosexuals’ who are ‘untrustworthy personalities’, the language used in some relevant news stories in the Greek press has been salacious, offensive and discriminatory: indicatively, tabloid newspapers ran controversial front-page stories with headlines like ‘Fa—[anti-gay slur] and paedophile bathhouse brings down the government’ (Makeleio, 20 February 2021), ‘Dirty nights with Ali and Saleem: dark-skinned boys at Lignadis’ disposal’ (Espresso, 25 February 2021) and ‘Homosexuals, perverts and paedophiles run the country with Mitsotakis [the incumbent Greek PM] in charge’ (Makeleio, 27 February 2021).

Such stories clearly associate homosexuality with paedophilia, creating a ‘signification spiral’ (Hall et al., Policing the Crisis, 1978) in the context of which both behaviours are constructed as sexual ‘perversions’. Such an association is intrinsically linked to and largely legitimised by the patriarchal discourse used by some of the accused to explain their actions – for example, Haikalis’ claim that he is an ‘old-fashioned alpha male’ – which also favours a view of non-heterosexual masculinities as deviant and socially reprehensible (Buchbinder, Studying Men and Masculinities, 2013).

There is extensive research on moral panics and the media’s role in marginalising social groups, portraying them as ‘folk devils’ who allegedly behave in ways that pose a risk towards society’s dominant moral values (Cohen, Folk Devils and Moral Panics, 2002[1972]). The aforementioned homophobic reporting can largely be made sense of within this framework. What is disconcerting, however, in the case of Greek media is not merely the exposure but most importantly the limited protection offered to LGBT+ people against such prejudicial and sensational media coverage on a regulatory level.

On the one hand, ESIEA, which is main trade union of Greek journalists based in Athens, provides in its Ethical Guidelines for Journalists (in Greek) that news reporting should be free from ‘discrimination based on nationality, sex, ethnicity, religion, political beliefs, financial situation and social status’ [Article 2(a)]. Although discrimination on the basis of gender identity or sexual orientation could in principle fall under the broad category of ‘social status’, it could be argued that the Code’s failure to refer explicitly to this particular form of discrimination creates an ambiguity which allows cases of homophobic reporting like those mentioned earlier to emerge without any threat of serious sanctions.

On the other hand, the National Council for Radio and Television (NCRT), which is the main regulator for public and private broadcast Greek media, seemingly adopts a more inclusive approach in its Code of Ethics for News and other Current Affairs and Political Programmes (in Greek): Article 4.1 of the Code specifically states that discriminatory reporting based on sexual orientation is not allowed while Article 4.2, which prohibits demeaning comments towards ‘ethnic and religious minorities and other vulnerable or powerless social groups’ (emphasis added), potentially covers sexual minorities too even if these are not explicitly mentioned.

This prima facie protection from discriminatory reporting offered by the NCRT Code to LGBT+ people is contradicted by the Council’s regulatory practice which has on several occasions led LGBT+ supporters to accuse NCRT of institutional homophobia and transphobia. For instance, in 2013, NCRT rejected (in Greek) the request of the Athens Pride organisers to air the event’s TV spot on all major Greek TV stations free of charge on the grounds that the spot ‘could not be described as one with a social message’.

Similarly, in 2010, NCRT imposed a fine of €20,000 on the Star Channel afternoon show Fotis and Maria Live for interviewing trans actress and author Betty Vakalidou based on the following rationale (emphasis added):

‘the issue of homosexuality (the sexual preference for individuals of the same sex) and of sex change with or without surgical intervention that was presented in the show constitutes a social issue and a reality that concerns only a small minority of people. It constitutes a condition that goes beyond the normal and, for that reason, it largely sounds strange to the underage viewer… The presentation of information about the sex life of homosexuals or transsexuals, about the sex change procedure and the feelings and experiences of the woman being interviewed, could possibly have a negative impact on underage viewers.’

Such discourse not only fails to protect LGBT+ people from discrimination but has the potential to add to their vulnerability and marginalisation even further by portraying them as ‘others’ who live outside the boundaries of the normal, heterosexual society. By prioritising a moralistic argument about how a discussion on LGBT+ issues might affect underage viewers, it also neglects the impact that prejudicial media portrayals or the lack of media representation can have on LGBT+ people’s mental well-being, self-image and aspirations. Positive LGBT+ representation in the news and entertainment media can play a key role in promoting social acceptance and tackling homophobic and transphobic violence. In a country like Greece where, according to a 2020 survey by the EU Agency for Fundamental Rights, 73% of LGBTI individuals avoid holding hands in public out of fear of being assaulted, threatened or harassed (one of the highest percentages among the 28 EU member states), it is profoundly disappointing and alarming that regulatory bodies like the NCRT fail to see the importance of responsible media reporting in creating a more inclusive Greek society and thereby improving LGBT+ individuals’ quality of life.

Finally, it is worth noting that, in our multi-mediated world, those identified as ‘folk devils’ and their advocates can use different outlets to challenge their demonisation in mainstream media instead of being completely defenceless against it. Following Kougias’ statement about his client’s reputation being tarnished by ‘professional homosexuals’, several well-known public figures hastened to criticise the lawyer’s language on news and social media: songwriter Foivos Delivorias condemned (in Greek) Kougias’ attempt to associate homosexuality with paedophilia and rape while, in a sarcastic move, both he and journalist Elena Akrita changed their employment statuses on Facebook to ‘Employed at Professional Homosexuals’.

The power to resist the conservative ideology of traditional media, however, does not change the fact that more work is required by media professionals and the relevant authorities in order to approach and report on the complex issues raised by the #MeToo movement sensitively. The Greek #MeToo movement can be seen as a tipping point which has the potential to effect societal change by eliminating the stigma attached to those issues and encouraging an open dialogue around them. But, as shown by some of the news coverage in former National Theatre director Dimitris Lignadis’ case, more responsible reporting is needed for this potential to be materialised.

In an attempt to show it is taking these allegations seriously (and perhaps also to divert attention away from its own unforeseen implication in Lignadis’ scandal), the Greek government set up the website metoogreece.gr to provide victims with the contact details of relevant support services. Allegations of rape, sexual assault, paedophilia and bullying against Lignadis and other powerful men of the Greek show business still dominate the Greek media at the time of writing. The exact number of victims and perpetrators, the actual impact of the ongoing ‘trial-by-media’ on due process and ultimately the extent to which the Greek #MeToo movement will succeed in rocking the hetero-patriarchal foundations of the Greek society remain to be seen.

This piece was originally published on The International Forum for Responsible Media and is reproduced here with permission and thanks.

The Nagorno-Karabakh Conflict through the Lens of International Law

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Azerbaijanis flee Nagorno-Karabakh during the 1991-94 war | Source: Wikimedia Commons

A new article by Sabina Garahan, doctoral candidate at the Human Rights Centre at the University of Essex, on Opinio Juris analyses False Equivalences in the Nagorno-Karabakh Conflict – International Humanitarian and Criminal Law Perspectives.  

The announcement of a peace deal in the Nagorno-Karabakh conflict on the night of 9-10 November 2020 marked the end of 28 years of hostilities between Azerbaijan and Armenia. Tensions leading to the 1991-94 war had begun in 1987 with the violent expulsion of 200,000 Azerbaijanis from the Armenian region of Kafan, which resulted in dozens of deaths. Although, in 1993, the UN Security Council had adopted four resolutions demanding the immediate withdrawal of all occupying Armenian forces from all occupied territories in Azerbaijan, these were never enforced.  

In the light of further territorial claims made by the Armenian government on Georgia and Turkey, the article fills two key gaps – thus rectifying resultant false equivalences – within the discourse on the Nagorno-Karabakh conflict. First, from the perspective of international humanitarian law, no distinction has been made between attacks on the occupied territories and other (non-occupied) cities in Azerbaijan. Second, from the perspective of international criminal law, the 1992 Khojaly massacre (recognised by some states as a genocide) of Azerbaijanis is frequently compared to the Sumgait pogroms which killed 26 Armenians, despite the latter atrocity having been fully addressed under domestic law in the absence of state complicity. The Khojaly massacre, is, by contrast, staunchly denied by the Armenian government and diaspora groups alike.  

As chronicled in a Human Rights Watch / Helsinki report, before the attack, the Azerbaijani town of Khojaly had been home to some 6,000 people, including those who had fled there previously from other parts of Nagorno-Karabakh after Armenian forces had invaded their villages in the winter of 1991-92. On the night of 25-26 February 1992, Armenian forces seized Khojaly. As residents fled, Armenian forces fired on them. After the massacre, more than 300 bodies showing evidence of a violent death were submitted for forensic examination, of which many had been scalped, had body parts removed, or been otherwise mutilated. 

The article also addresses France’s contentious role in the OSCE Minsk Group (the body formerly tasked with attaining peace between Armenia and Azerbaijan) in view of the French government’s secret deals with Armenian terrorist groups.

The Scope of Military Jurisdiction for Violations of International Humanitarian Law

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The Drumhead Court Martial John Pettie (1839–1893) | Photo credit: Museums Sheffield

Claire Simmons, PhD Candidate in Law at the University of Essex, published a new article in the Israel Law Review, titled ‘The Scope of Military Jurisdiction for Violations of International Humanitarian Law’.

With the adequacy of military jurisdiction over violations of international law being questioned in certain spheres, the article explores the role and limits of military jurisdiction in combating impunity for violations of International Humanitarian Law (IHL), the body of law which regulates situations of armed conflict.

The article demonstrates that that the unique context of armed conflict and military operations can provide important reasons to retain and strengthen military justice systems to combat impunity for certain violations of IHL, especially to suppress non-criminal or administrative violations.

For jurisdiction over criminal offences (including war crimes), the adequacy of military or civilian systems will depend on domestic, regional, and international factors which are difficult to generalise. Increased scrutiny under international human rights law into the impact of these justice systems on the rights of individuals has led to restrictions on the format and scope of military jurisdiction, yet States have implemented these obligations in different ways at a domestic level. What is clear in all cases is that the systems of justice used must respect international standards of fair trial and general principles of justice.

There is a need to continue the discussion on the adequacy of military justice in combating impunity for violations of international law. Claire Simmons’ article highlights the importance for such debates to address State obligations in a holistic manner, including by recognising the applicability of different bodies of international law, differences in domestic legal systems, and applicable legislation in times of both peace and war. Such a holistic approach is crucial to promoting accountability under international law while protecting the rights of both those accused of offences as well as those affected by violations in armed conflict.

Galindo: COVID-19 Unearths Ghosts of Spain’s ‘Dirty War’

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The death of a former General convicted for murder divides Spain

Enrique Rodríguez Galindo. Screen capture of TV channel LaSexta’s video on YouTube

Dr. Koldo Casla, Lecturer in Law, University of Essex

Enrique Rodríguez Galindo died on February 13, 2021, with COVID-19, at 82 years of age.

The former general of Spain’s gendarmerie force, the Guardia Civil, Rodríguez Galindo headed the garrison of Intxaurrondo in the Basque city of Donostia-San Sebastián in the 1980s and 90s. At that time, police officers were frequently targeted by ETA, the Basque pro-independence armed group that extorted and threatened thousands of people, killing 850 over half a century until it was forced to put an end to its violence in 2011. Lack of popular support and effective police action were important factors for why ETA came to an end.

Rodríguez Galindo was in charge of anti-terrorism action in very difficult circumstances. Yet, he was also a kidnapper and a murderer himself.

This is what Spain’s High Court concluded in 2000, and it was confirmed a year later by the Supreme Court. Rodríguez Galindo was sentenced to 75 years in prison for ordering the kidnapping and killing of José Antonio Lasa and José Ignacio Zabala. They were tortured and executed in 1983 by death squads known as GAL, the “Antiterrorist Liberation Groups.” They were buried with quicklime in the mistaken expectation that the chemistry would make the remains disappear for good. The bodies were found in 1985, and medical examiners could identify them only in 1995.

Out of 75 years, Rodríguez Galindo only spent five in prison. He was granted a partial release in 2005 and parole in 2013.

In 2021, Rodríguez Galindo’s death awoke Spain’s ghosts of the past.

Secretly funded by the Spanish Government, GAL was responsible for no fewer than 27 extrajudicial executions between 1983 and 1987 in what is known as the “dirty war”.Some victims were alleged ETA members, such as Lasa and Zabala, others simply bystanders in the wrong place at the wrong time. In 1998, Spain’s Home Secretary José Barrionuevo and his deputy Rafael Vera were imprisoned for their responsibility in GAL; Felipe González, Prime Minister at the time, was photographed hugging them goodbye at the jail’s gate. In an interview in 2010, González declared cryptically: “I had to decide whether to blow up the leaders of ETA. I said no. And I don’t know if I made a mistake.” Much has been speculated about González’s involvement in GAL, but so far nothing sufficiently definitive has been proven.

As pointed out by the scholar Omar Encarnación, GAL was “a continuation rather than a departure of the State’s counter-terrorism strategies” after Franco’s dictatorship, which ended in 1975. GAL was the result of a less than perfect transition to democracy, where institutions were not cleaned up, resulting in the lack of democratic control over the police, the militarized Guardia Civil, and the military intelligence. GAL’s existence also emboldened ETA, giving them discursive ammunition to dispute the democratic character of Spain, and offering them the chance to present themselves as victims of state-sponsored repression.

Some of the reactions to Rodríguez Galindo’s death are proof that segments of Spanish society have a lot of work to do to face their demons.

In its obituary, the widely sold newspaper El País spoke of the General’s “dazzling record of service,” tainted only by the “shadow” of “supposedly being part of the so-called dirty war.” One would think that the word “supposedly” would no longer be necessary considering Galindo’s court sentence.

Macarena Olona, Member of Parliament of the far-right Vox, the third-largest party in Spain, wrote on Twitter: “May the earth rest lightly on you, my general.”

“May the earth rest lightly on you, my General. Today, more than ever, Intxaurrondo is in our hearts. Rest in Peace.”

On the same social platform, her fellow party member sitting in the European Parliament, Jorge Buxadé, wished that “perpetual light shine upon him.”

The death of General Rodríguez Galindo is another opportunity given to us by social media to block, denounce and identify the accounts of those who live and promote hatred of Spain and its laws.

May he rest in peace. And may the perpetual light shine upon him.

The sister of one of Rodríguez Galindo’s confirmed victims, Pili Zabala said on television on February 14 that she had tried to get in touch with Rodríguez Galindo to urge him to take responsibility for the pain he had caused her family. She wanted him to admit what he did had been wrong, but she never heard back from him. Now, Zabala is seeking full accountability: Galindo “was an army man, he was obeying orders, and it is clear to me that he received orders from his superiors, who were politicians.” Zabala is hoping that former Prime Minister Felipe González will eventually sit in the dock.

In 2000, Provincial Governor in Donostia-San Sebastián, Juan María Jauregi, had given evidence in court about Rodríguez Galindo’s involvement in the killing of Lasa and Zabala. Twenty years later, in light of a Twitterstorm of eulogies for the general hours after the announcement of his death, Jauregi’s daughter, Maria Jauregi, shared:

These words by my father come to mind, which I will never forget: “I don’t know who will kill me, ETA or Galindo himself”

It was ETA in the end, and it happened in 2000. His widow, Maixabel Lasa, and their daughter, Maria, became two of the most powerful voices against hatred and for justice and reparations for all victims of human rights abuses in the Basque Country.

Today, it is worth recalling these words by Pablo de Greiff, the former UN Special Rapporteur on Truth, Justice and Reparations, after his mission to Spain in 2014:

“The strength of democratic institutions must be measured not by their ability to ignore certain issues, especially those that refer to fundamental rights, but rather by their ability to manage them effectively, however complex and awkward they may be”.

This piece was first published on Global Voices and is reproduced here under a Creative Commons Licence.

Corporate Investors’ Nationality and Reforming Investment Treaties: Can Older Generation Treaties Undermine Substantive Reforms?

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Photo by Christine Roy

Dr. Anil Yilmaz Vastardis, Senior Lecturer and Co-Director of the Essex Business and Human Rights Project, School of Law and Human Rights Centre, University of Essex

In my recently published book The Nationality of Corporate Investors under International Investment Law(Hart Publishing 2020), I dissect the relationship between international investment law, corporate law and the concept of nationality. I argue that this relationship has been problematic from host states’ and their communities’ perspective, for it creates a free market for manufactured corporate nationalities enabling wealthy investors to access investment treaty protections to challenge regulatory measures.

Scrolling through the UNCTAD investment dispute settlement database, one can detect, even without reading the awards or decisions, that some businesses publicly known to be corporate nationals of a particular state seek protection under investment treaties of other states. For instance, the UNCTAD database shows a claim filed by Chevron against the Philippines in 2019. One would expect this claim to be filed under the US-Philippines investment treaty, as Chevron Corporation is incorporated and headquartered in the US. But it appears from the UNCTAD investment agreements database that there is no investment treaty between the US and the Philippines. Instead, Chevron filed this claim under the Philippines-Switzerland investment treaty utilising its Swiss subsidiary Chevron Overseas Finance GmbH.

One investor, convenient nationalities

This practice of nationality shopping is relatively common and largely permitted in investment treaty practice. It is enabled by investment treaty texts and generous arbitral interpretations of a corporation’s link to its alleged home state. In the example of Chevron, while it certainly has a corporate presence in Switzerland, through which it may have channelled its investments to the Philippines, the question remains as to whether this alone makes Chevron a Swiss investor. The relevant investment treaty defines a protected Swiss ‘investor’ to include any company incorporated under Swiss law. According to this definition, Chevron in the Philippines is a Swiss investor and not a US investor. However,  according to two prior investment treaty claims that Chevron filed against Ecuador, it is a US investor. This is not an isolated instance. In its 2011 claim against Australia, Philip Morris argued it was a Hong Kong investor, whilst at the same time arguing in a 2010 claim against Uruguay that it was a Swiss investor. Philip Morris is a well known, US – headquartered tobacco company. But in investment treaty claims, it has never been a US investor. Similarly, Mobil initiated a claim against Venezuela in 2007 as a Dutch investor and against Argentina in 1999 as a US investor. Total was a French investor in its claim against Argentina in 2004, but it was a Dutch investor in a claim against Uganda in 2015.

Good governance and development narratives no longer justify manufactured nationalities

There are many similar instances of less well-known corporate investors relying on manufactured corporate identities or nationalities in order to invoke investment treaty protections. And all of this is often permitted within the boundaries of investment treaty law and corporate law. Taking a page from Katharina Pistor’s Code of Capital, we can understand investment treaties and corporate law principles as offering a legal coding of foreign investment that enables investors to change identity so as to increase the durability and priority of their interests. Those in favour of this flexibility of investment treaty law argue that we should focus on the bigger picture: the objective of investment treaty law to enhance good governance and economic development would be better achieved if all investors had access to treaty protections and investment arbitration, regardless of their origin or nationality. Thus, it is in line with the objectives of investment treaties to interpret the concept of investor or corporate nationality expansively and flexibly – so much so that an investor can be a national of one state for the purpose of one claim and a national of another state for the purpose of another claim.

The good governance and development narratives of investment treaties, however, have been challenged by recent empirical work. After 20 years of proliferation of investment treaty claims, the evidence is lacking to support these narratives as justification for expanding the personal scope of investment treaty protections. States have begun to  pay some attention to the personal scope of their investment treaties, especially for corporate investors, in newly negotiated investment treaties. Increasingly, states are adopting more detailed clauses that require a corporate investor to have a stronger connection to its home state than merely being incorporated in that jurisdiction. The question of personal scope of investment treaty protection is also considered by the UNCITRAL Working Group III as one of the reform areas to overcome consistency and correctness problems in investor-state dispute settlement. The recently published UNCTAD IIA Reform Accelerator also identifies ‘investor’ definitions among the eight key provisions of investment treaties in most need for reform. The objectives of these  reform efforts are to tighten the definition of ‘investor’ and introduce ‘denial of benefits’ clauses to prevent corporate investors’ reliance on tenuous links with a home state to access treaty protection. 

Reform and the pitfalls ahead

Reform is crucial in the area of personal coverage of treaties to (1) restore the reciprocal nature of investment treaty protections and (2) to avoid the reforms pursued by states on substantive investment treaty standards being side-stepped by investors by relying on the remaining older generation investment treaties. As I argue in my book, the permissive definitions of investor in older treaties and expansive interpretations of even the tighter definitions by arbitral tribunals have resulted in undermining the reciprocal nature of investment treaty commitments among states. There is no barrier for a US investor to rely on investment treaty protections for its investments in the Philippines, despite the two countries not having committed to extending such protection to each other’s investors. The definitions of investor, coupled with the convenience of creating corporate entities, artificially transform the standards of protection included in investment treaties into pseudo-erga omnes obligations for states which can be invoked by any investor, whether or not they are genuinely covered by a treaty. While reform of treaties is necessary to reverse this trend, treaty wording alone may not offer the tightening of standards the states are aiming for. Investment arbitration tribunals continue to have decisive input over the interpretation of treaty standards. This means that even tighter standards can be loosened in the process of arbitral interpretation. One of the key reforms added to investor definitions is to require that a protected investor has its real seat or substantial business activities in the home state. Yet, in a recent arbitral award in Mera Investment v Serbia, the tribunal interpreted the concept of real seat as the place of incorporation and permitted a shell corporation indirectly owned by nationals of the host state to benefit from the investment treaty, despite the investor lacking the genuine connections to the home state sought in the investment treaty. Thus, textual reform of treaties may not achieve the outcomes desired with the current model of investment arbitration.

The second consequence of the current definitions  of investor and arbitral interpretations is that they can undermine substantive investment treaty reforms pursued by host states. This is due to investors’ ability to adopt a new, or rely on an existing corporate nationality, established using subsidiaries or mailbox companies and based on tenuous links with a home state that has an older generation treaty with the host state. In this way investors, who may genuinely be nationals of a home state that has recently signed a reformed treaty with the host state, can sidestep the reformed treaty and rely on an older generation treaty to bring its claim against the host state. Many new investment treaties introduce more nuanced substantive standards of protection and exceptions to the application of standards such as the FET standard or indirect expropriation in the areas of policies and measures introduced in the public interest. If, for instance, a Canadian investor within the EU wishes to avoid the provisions safeguarding the host state’s right to regulate to achieve legitimate public policy objectives enshrined in CETA, it can rely on an older generation investment treaty signed by the relevant EU member state and a third state in whose territory the investor can set up a shell corporation or has an existing subsidiary to reroute its investment before filing a claim and before a dispute becomes reasonably foreseeable. 

Conclusion

Many states are working on reforming their investment treaties to curb the excesses of the older generation investment treaties. Unlike their first-generation counterparts, these newer generation treaties are being negotiated with greater attention to detail and lessons learned. The process for any state to reform its entire investment treaty programme can take a significant amount of time. In the meantime, investor definitions in treaties and expansive interpretation of this notion by arbitral tribunals can allow backdoor access for investors to older generation treaties via subsidiaries or shell corporations based in third countries. Even if a state reforms all its treaties and tightens investor definitions and includes denial of benefits clauses, there will still be a risk of arbitral tribunals undermining the objectives of the parties by interpreting the concepts incorrectly, as was done in Mera Investment v Serbia. The problems with both investment treaty texts and the decisive interpretative influence exercised by arbitral tribunals over those texts indicate that even serious change to one aspect of the  investment treaty system, in isolation, can be undermined in the absence of more systemic reform.    

The author would like to thank Daria Davitti, Nathalie Bernasconi,  Paolo Vargiu, and Zoe Phillips Williams for their helpful comments. This post was originally published on Investment Treaty News.

Capabilities, Capacity and Consent: Sexual Intimacy in the Court of Protection

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Photo by Sinitta Leunen

Dr. Jaime Lindsey, Lecturer in Law at the University of Essex has a new article published in the Journal of Law and Society. The article is entitled ‘Capabilities, capacity, and consent: sexual intimacy in the Court of Protection’ and is co-authored with Professor Rosie Harding of the Birmingham Law School.

The article uses original data from research at the Court of Protection to explore capacity to consent to sex in practice. It argues that the approach under the Mental Capacity Act 2005 fails to place appropriate focus on consent as central to understanding sexual capacity.

The capabilities approach to justice is then used to demonstrate the limitations of the existing legal approach to capacity to consent to sex, and to argue that the protective focus of the legal test would be better centred on the social risks resulting from non‐consensual sex and exploitation.

Finally, the article argues that, rather than focusing on a medicalized approach to understanding sexual intimacy, an analysis based on capabilities theory provides conceptual tools to support arguments for additional resources to help disabled people to realize their rights to sexual intimacy.

The article is published Open Access and is available here.

Enhancing Cross-Border Access to Electronic Information in Criminal Proceedings: Towards a new E-Evidence legal framework in the EU

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Dr Oriola Sallavaci, Senior Lecturer in Law, University of Essex

In recent years cross-border exchange of electronic information has become increasingly important to enable criminal investigations and prosecutions. As I have discussed in depth in my study “Rethinking Criminal Justice in Cyberspace: The EU E-evidence framework as a new model of cross-border cooperation in criminal matters” the use of technology has transformed the nature of crime and evidence leading to ‘crime without borders’ and ‘globalisation of evidence’. An increasing number of criminal investigations rely on e-evidence and this goes beyond cyber-dependent and cyber-enabled crimes. From an evidential point of view, today almost every crime could have an e-evidence element as often offenders use technology, such as personal computers, notepads, and camera phones, where they leave traces of their criminal activity, communications or other pieces of information that can be used to determine their whereabouts, plans or connection to a particular criminal activity. 

Crime today often has a cyber component and with it an increasingly prominent cross border dimension because electronic information to be used for investigative or evidentiary purposes is frequently stored outside of the investigating State. The borderless nature of cyberspace, the sophistication of the technologies and offenders’ modii operandi pose specific and novel challenges for crime investigation and prosecution that, in practice, may lead to impunity.  In 2018 the European Commission found that in the EU “more than half of all investigations involve a cross-border request to access [electronic] evidence.” Yet, alarmingly, “almost two thirds of crimes involving cross-border access to e-evidence cannot be effectively investigated or prosecuted”. Challenges to accessibility relate inter alia to the volatility of e-information, availability and the location of data, as well as the legislative barriers and shortcomings that must be overcome to enhance cross-border access to electronic evidence and the effectiveness of public-private cooperation through facilitated information exchange.

Cross border access to e-information is currently conducted through traditional judicial cooperation channels and requests are often addressed to specific states which are hosts to many service providers (SP). In the EU these include Mutual Legal Assistance requests and European Investigation Orders according to Directive 2014/41/EU which provides for the acquisition, access and production of evidence in one Member State (MS) for criminal investigations and proceedings in another Member State.  The nature of the existing judicial cooperation instruments, actors and procedures involved, and the ever-increasing number of requests have resulted in delays and inefficiencies, posing specific problems for investigations and prosecutions that are exacerbated by the volatility of electronic information.

In the EU, there is no harmonised framework for law enforcement cooperation with service providers. In recent years, Member States have increasingly relied on voluntary direct cooperation channels with service providers, applying different national tools, conditions and procedures. Service providers may accept direct requests from LEAs for non-content data as permitted by their applicable domestic law. However, the fragmented legal framework creates challenges for law enforcement, judicial authorities and service providers seeking to comply with legal requests, as they are increasingly faced with legal uncertainty and, potentially, conflicts of law.

Cross border access to electronic information requires legal instruments that are capable of efficiently supporting criminal investigations and prosecutions and that, at the same time, have in place adequate conditions and safeguards that ensure full compliance with fundamental rights and principles recognised in Article 6 of the Treaty on European Union, the EU Charter of Fundamental Rights and the European Convention on Human Rights, in particular the principles of necessity, legality and proportionality, due process, protection of privacy and personal data, confidentiality of communications, the right to an effective remedy and to a fair trial, the presumption of innocence and procedural rights of defence, as well as the right not to be tried or punished twice in criminal proceedings for the same criminal offence.

In order to achieve these objectives and overcome difficulties present in the existing mechanisms of cross-border cooperation, in April 2018 the EU Commission proposed an important legislative package referred to as “E-evidence”, aimed at facilitating the access to e- evidence by European law enforcement agencies (LEAs). The framework contains two legislative measures: a Regulation which provides two new mechanisms for LEA’s cross border access to e-evidence: European Production Order and European Preservation Order which are to be addressed directly by LEAs of the issuing MS to a service provider, and a  Directive which requires every online service provider “established” in or that has “substantial connection” to at least one EU Member State to appoint a legal representative in the territory of an EU MS of choice as an addressee for the execution of the above Orders.

On 7 December 2018 the Council adopted its own draft (known as Council’s “general approach”) and after two years of delays caused partially from the EU parliamentary elections and the Covid-19 pandemic, on 11 December 2020 The EU Parliament adopted its position. On 10 February 2021 the ‘trilogue’ procedures amid the EU Parliament, the Council, and the Commission started in order to agree to a common text. In the study cited above, I have analysed in depth the key legal provisions contained in the Commission’s proposal, the Council’s draft and the report of the LIBE’s rapporteur Birgit Sippel, presented to the EU Parliament in 2020. Considering that the E-evidence framework is currently being negotiated, the study’s analysis and findings aim to contribute to achieving the best version of the forthcoming instruments.

The EU E-evidence framework is of particular importance in shaping the future of similar instruments and the terms of cooperation between countries all over the world. To a certain extent, it follows the US CLOUD Act 2018 that in itself marks a major change in how cross-border access to e-evidence may develop in the rest of the world. The EU E-evidence framework shall influence and at the same time needs to conform to a number of new agreements currently being negotiated. In 2019 the EU Commission received a negotiating mandate to achieve an agreement between the EU and US, as well as to shape the second amending protocol of the Cybercrime Convention (CCC). Both these instruments need be negotiated from the perspective of the forthcoming E-evidence framework, therefore it is important that the latter offers provisions that increase the efficiency of investigations and prosecutions by surpassing challenges in cross-border cooperation, while maintaining safeguards to fundamental rights of individuals.

The E-Evidence legislative package lays down the rules under which, in a criminal proceeding, a competent judicial authority in the European Union may directly order a service provider offering services in the Union to produce or preserve electronic information that may serve as evidence through a European Production or Preservation Order. This framework will be applicable in all cross-border cases where the service provider has its main establishment or is legally represented in another Member State. The framework aims to complement the existing EU law and to clarify the rules of the cooperation between law enforcement, judicial authorities and service providers in the field of electronic information.  The new measures for cross border access to e-evidence will not supersede European Investigation Orders under Directive 2014/41/EU or Mutual Legal Assistance procedures to obtain electronic information. Member States’ authorities are expected to choose the tool most adapted to their situation. However, authorities of the Member States will be allowed to issue domestic orders with extraterritorial effects for the production or preservation of electronic information that could be requested on the basis of the e -evidence Framework.

Despite expected improvements in the efficiency of investigations and prosecutions by simplifying and speeding up the procedures, the necessity of having a new legal framework to organize cross-border access to electronic evidence has been questioned.  The proposed e-evidence framework is perceived as adding another layer to the already complex tableau of existing, multiple channels for data access and transnational cooperation.   While alternative approaches have been considered and could have been taken by the Commission, as I have argued in depth elsewhere, a specific framework dedicated to improving access to e-evidence is more suitable to help achieve that goal than amendments to existing procedures and instruments that are general in scope and do not provide for the specific e-information  related challenges. Procedural improvements to existing cross border cooperation instruments are necessary, but not by themselves sufficient to overcome the present difficulties and inefficiencies. It is not possible to adequately respond to novel challenges with old mechanisms embedded in lengthy procedures and bureaucratic complexities. The answer is to provide adequate safeguards that protect fundamental rights and the interests of all stakeholders, suited to the new type of instruments created by the e-evidence framework, albeit not identical to the ones found in existing mechanisms of transnational cooperation.

The E-evidence model builds upon the existing models of cooperation yet is fundamentally different. The extraterritorial dimension of the framework affects the traditional concept of territorial sovereignty and jurisdiction. It departs from the traditional rule of international cooperation that cross-border access to electronic information requires consent of the state where the data is stored.  Most importantly, jurisdiction is no longer linked to the location of data. According to the new approach, the jurisdiction of the EU and its MSs can be established over SPs offering their services in the Union and this requirement is met if the SP enables other persons in (at least) one MS to use its services and has a substantial connection to this MS.  In this way the framework avoids the difficulties in establishing the place where the data is stored and the “loss of location” problem. E-evidence framework is a clear example of the development of the concept of territorial jurisdiction in criminal law and the evolvement of connecting factors that establish it, in line with the requirements of legal certainty.

The extraterritorial reach of judicial and state authorities’ decisions in the E-evidence framework introduces a new dimension in mutual recognition, beyond the traditional judicial cooperation in the EU in criminal matters, so far based on procedures involving two judicial authorities in the issuing and executing State respectively. This important aspect of the e-evidence framework entails a fundamentally different approach that demonstrates the (need for) development of the EU law traditional concepts in order to respond to the new challenges with adequate mechanisms. From the perspective of the proposed e-evidence framework, the scope of article 82 (1) TFEU requires further clarification from CJEU or an amendment (albeit difficult). Reliant on the principle of mutual trust, the debates surrounding the e-evidence framework reveal that in today’s European reality this principle is still an objective to be achieved. For as long as disparities in the standards and protections provided by MSs still exist, the way forward should include innovative mechanisms that allow for the control, improvement and maintenance of those standards within each MS as opposed to fostering lack of trust, prejudicial treatment and unjustifiable differentiation between MSs within the EU.

The e-evidence framework generally achieves what it sets out to do: i.e. to increase the effectiveness of cross-border access to e-evidence. The application of the same rules and procedures for access to all SPs will improve legal certainty and clarity both for SPs and LEAs which is currently lacking under the existing mechanisms of cooperation. In several aspects the framework serves as a model to be followed in the international arena. However, further improvements can be recommended:

  • There should be only an exceptional involvement of the enforcing MS as proposed by the Council, so that the framework does not replicate the existing judicial cooperation models.
  • The wording of Article 7a in the Council draft could be amended to allow for the enforcing MS to raise objections on behalf of any affected state.
  • Service Providers should maintain their reviewing powers of production and preservation orders, given the unique position they are in to understand the data. A productive dialogue and close cooperation between SPs and the issuing authorities should be promoted in the earliest stages.
  • The framework should specify the definition of e-evidence and should provide for its inadmissibility in cases of breaches of the requirements specified therein.
  • The data categories need to be better defined and brought in line with other EU and international legal instruments, as well as the jurisprudence of CJEU and ECtHR. The draft presented by EU Parliament is a positive step in that direction.
  • Judicial validation of orders issued by non-judicial authorities should be imperative for all types of data as a form of control and safeguard against abuse or overuse.
  • A classification of investigating authorities by means of a schedule in the proposed framework would help to better define the permitted activities within the scope of the Regulation.
  • A provision that clearly prohibits the production or use of e-evidence in cases contrary to the ne bis in idem principle should be included in the final draft.
  • The final instrument should adopt the approach proposed by the Commission regarding confidentiality and subject notification with an obligation for the issuing authority to inform the person whose content or transactional data are sought in all cases (even though delays should be permitted).
  • The right to exercise legal remedies should be extended to the enforcing MS and/or the MS of residence of the suspect.
  • There should be provisions that enable defendants or other parties in the criminal proceedings to access or request e-evidence. The accessibility of electronic data to the suspects / defendant’s lawyer should be ensured in order to assert their rights effectively.

If implemented, these recommendations would improve the e-evidence framework by ensuring a balance between effective criminal investigations/prosecutions and respect for fundamental rights. A balanced and principled approach should be at the core of any existing or forthcoming instruments concerning cross-border access to electronic information.