The convicted killer of Philip Lawrence is obviously a horrible individual who is deservedly subject to a life sentence. EC legislation (if that is what the Asylum and Immigration Tribunal has applied in its recent judgment) would only permit him to be expelled back to Italy if he is a threat to national security. But this has nothing to do with his life sentence -- EC law has no impact on that. It is even possible that the UK system will be less lenient in permitting his future release than the Italian system. If the UK penal system never releases this murderer from his life sentence, that would be fine by me.
But is it wrong in principle that EC law does not allow his deportation? (Perhaps the tribunal was relying on the Human Rights Act; in that case the outcome is not so clearly required by Strasbourg case law). Obviously this is a difficult case, but the EC legislation strikes the correct balance. Once someone is on the territory of a Member State for over ten years, it makes sense that the concept of EU citizenship transfers responsibility for that person -- except in national security cases -- to the host State. This in no way restricts the prosecution and sentencing of individuals if they are found guilty of serious crimes.
One thing that is clear is that this is a matter of free movement law, not JHA law, since the person in question is an Italian man who is relying on an EC Directive (not adopted by the Commission, but by the Council and EP).
Open Europe is therefore wrong to make comparisons with JHA law:
http://www.openeurope.org.uk/media-centre/pressrelease.aspx?pressreleaseid=55
This case has nothing to do with asylum legislation, the rights of suspects, the European supervision order, or the prohibition of double jeopardy in the Charter. In any case, the UK could either veto or opt out of these legislative measures at present, or opt out of them under the Reform Treaty, and the UK's opt-out from the Charter quite clearly would mean that our law on double jeopardy would not be affected (in any case, there are exceptions to the double jeopardy principle, as set out in the relevant Protocol to the ECHR and which can be assumed to be incorporated into the Charter).
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7 comments:
Thanks for drawing my attention to this risible press release. It got me blogging again on my EU law and politics blog! Thanks. http://bloggingabouteulawandpolitics.blogspot.com/2007/08/learco-chindamo-uses-and-abuses-of-eu.html
Thanks for the tip -- your comments on this case on your blog are very incisive. And it is nice to see you blogging again on that blog!
I'm afraid there is more where that came from as far as Open Europe is concerned -- if you look in detail at their site and my responses to it in some of my posts (which only cover a portion of the weird things they have been saying).
This organisation seems to be functioning as the 'intellectual powerhouse' of Euroscepticism at the moment, which says something rather tragic -- although, as I have said before, some of the criticisms they make about the EU are valid or even convincing.
As you say on your blog though, Open Europe should be able to recognise a single market issue when they see it. I expect at least one of their staff fancies him/herself as some sort of lawyer/law student, so perhaps we should start marking them? I would give that particular press release a 3rd, for failure to spot the key legal issue...
The UK is in a permanent state of denial over the scope of its obligations under the Treaty of Rome, which set up the European Community.
Europe, it would seem, is the Pandora´s box in British politics. Cameron would rather blame the HRA than risk another vivious bout of infighting over the subject of Europe. And I daresay, Jack Straw and Gordon Brown are likely to feel the same way.
When agreeing to join the European Community back in 1973, the UK agreed to be bound and subject to the law of the European Community.
From its inception, the project behind the European Community was political: The creation of a united Europe.
The Maastricht Treaty which was ratified by Parliament in the early 90s expressly introduced for the first time the political notion of a European Citizenship.
Directive 2004-38 is meant to elaborate, consolidate and strengthen the political dimension behind the embryonic notion of European Citizenship.
Accordingly, European Citizens are meant to be at home across the European Union. The basic premice is that they must be treated in the same way as a national. Thus they may only be exceptionally removed or deported under narrowly defined circumstances and subject to iron clad procedural and substantive guarantees.
Since the entry into force of the Directive, deportation of EU citizens who are permanent residents or who have resided in the Member State for over 10 years is made even more difficult.
Hi anonymous,
Thanks for your comment. Have you now seen the full text of the judgment, online at:
http://www.timesonline.co.uk/tol/news/uk/crime/article2301608.ece
This also connects to an excellent analyis by The Times legal editor.
It is perfectly clear, as you say, that the case was won on EU law arguments alone (see para. 96) before the HRA aspects are considered. Chindamo's success on the HRA point, is, as the Times analysis rightly concludes, entirely secondary to the EU law point.
In fact, it could be argued that the HRA as such is entirely irrelevant even as a secondary point, because even in the absence of the HRA, the human rights points would have had to be fully addressed as general principles of EC law -- because the case falls within the scope of the general principles, as it involves a derogation from a free movement right (cf the Orfanopolous judgment, which the tribunal refers to).
In other words, both the primary and secondary points would have been decided exactly the same way without the HRA. The attack on the HRA is therefore totally off-base, as you say.
In any case I am just not convinced that the human rights analysis is correct -- I think there is every chance that the Strasbourg court would have decided the case the other way on Article 8 grounds, given that (a) Chindamo is now an adult without a spouse/partner or children and (b) this is a murder case -- there is no Strasbourg case law on murder cases and Article 8 expulsions, I think, but surely a murder conviction is a massive factor to be weighed against an applicant.
As for the EC law points, the tribunal actually found that Chindamo did not qualify for the extra protection for persons who had resided for over ten years, or even as a permanent resident, because of his period in prison. As a matter of law this is unconvincing -- particularly in light of the ECJ judgments on analogous issues in respect of Turkish workers.
So Chindamo is covered only by the lower level of protection against protection held by EU citizens generally -- but even on that basis, the tribunal ruled that he should not be expelled, relying it seems on the question of whether he is actually a 'present' threat to public policy, etc.
This is the correct test, according to the case law and legislation, but my problem is that the tribunal only based itself on the evidence of two of his friends, one of whom appears to be connected to the same 'gang'. This seems a fairly limited basis on which the tribunal reached its conclusion -- after all, his friends are obviously rooting for him to stay in the UK.
I think there will likely be a cross-appeal as well as the government's appeal, and in my view at least the issue of the calculation of time under the Directive should properly be referred to the Court of Justice.
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