20180701 Forderungen der FRA zu Grundrechten in der EU

FRA opinions to the Fundamental Right in the EU - Fundamental Right Report 2018

Als Mitglied der Fundamental Rights Platform (FRA) dokumentiert Aktion Freiheit statt Angst regelmäßig deren Veröffentlichungen, wenn sie unsere Themen betreffen. In den letzten Tagen erreichte uns der Grundrechtsreport 2018 der FRA. Zum Stand der Grundrechte hat die FRA, wie auch imletzten Jahr wieder ihre Forderungen aufgestellt.

Wir möchten hier auf einige wichtige Passagen in zwei Kapiteln des Dokuments hinweisen. Die Hervorhebungen sind von uns in den Text eingebracht worden und weisen auf wichtige Feststellungen hin. Viele davon sind für uns selbstverständlich - von einigen Staaten in der EU und leider auch manchmal von der Kommission wird dies jedoch anders gesehen. Und von uns werden einige Dinge, wie z.B. die Speicherung von Fluggastdaten (PNR) als völlig überflüssig und gefährlich angesehen. Trotzdem ist es wichtig, dass auch eine EU Institution wie die FRA auf die Gefahren hinweist und eine Begrenzung solcher Datensammlungen verlangt.

Chapter 6 Asylum, visas, migration, borders and Integration

Irregular arrivals by sea halved compared to 2016, totalling some 187,000 in 2017. However, more than 3,100 people died while crossing the sea to reach Europe. Along the Western Balkan route, allegations of police mistreating migrants increased. Some EU Member States still struggled with the reception of asylum applicants. Migration and security challenges were increasingly linked, with large-scale EU Information Systems serving to both manage Immigration and strengthen security. Meanwhile, the push to address irregular migration more effectively exacerbated existing fundamental rights risks.

Although the number of people arriving at the EU's external border in an unauthorised manner dropped in 2017, significant fundamental rights challenges remained. Some of the gravest violations involve the mistreatment of migrants who cross the border by circumventing border controls. Reports of abusive behaviour increased significantly in 2017, particularly on the Western Balkan route. Respondents in FRA's EU-MIDIS II survey, which interviewed over 12,000 first-generation immigrants in the EU, also indicated experiences with violence by police or border guards. Despite the significant number of allegations, criminal proceedings are rarely initiated - partly due to victims' reluctance to pursue Claims, but also because of insufficient evidence. Convictions hardly occur.

Article 4 of the EU Charter of Fundamental Rights prohibits torture, inhuman or degrading treatment. The prohibition is absolute, meaning that it does not allow for exceptions or derogations.

FRA opinion 6.1
EU Member States should reinforce preventive measures to reduce the risk that individual police and border guard officers engage in abusive behsviour at the borders. Whenever reports of mistreatment emerge, these should be investi-gated effectively and perpetrators brought to justice.

In 2017, the EU gave high priority to reforming its large-scale Information technology (IT) Systems in the field of migration and asylum. Through 'interoperability', the different Systems will be better connected with one another. A central repository will pull together the identity of all persons stored in the different Systems, and a mechanism will detect if data on the same person are stored in the IT sys-tems under different names and identities. Not all aspects of the proposed regulations on interoperability have been subjected to careful fundamental rights scrutiny.
The reforms of the IT Systems affect several rights protected by the EU Charter of Fundamental Rights, including the right to protection of personal data (Article 8), the rights of the child (Article 24), the right to asylum (Article 18), the right to an effective remedy (Article 47) and the right to liberty and security of person (Article 6).

FRA opinion 6.2
The EU should ensure that either the EU legislator or independent expert bodies thoroughly assess all fundamental rights impacts of the different proposals on interoperability prior to their adoption and implementation, paying par-ticular attention to the diverse experiences of women and men.

The European Union and its Member States made significant efforts to increase the return of migrants in an irregular Situation. Immigration and other relevant authorities consider deprivation of liberty as an important building block for effective returns. The revised Return Handbook, adopted in 2017, contains a list of situations which EU Member States should consider as indications of a 'risk of absconding' - in practice, the most frequent justification for ordering detention. It also defines circumstances where a risk of absconding should be presumed, shifting the bürden to rebut the presumption on the individual. The lack of comparable statistics on Immigration detention in the EU makes it difficult to assess to what degree the reinforced attention on making returns more effective has prompted an increase in the use of Immigration detention. However, reports pointing to patterns of arbitrary detention emerged from different EU Member States.

Detention constitutes a major interference with the right to liberty protected by Article 6 of the EU Charter of Fundamental Rights. Any deprivation of liberty must, therefore, respect the safeguards established to prevent unlawful and arbitrary detention.

FRA opinion 6.3
When depriving individuals of their liberty for immigration-related reasons, EU Member States must respect all safeguards imposed by the Charter as well as those deriving from the European Convention on Human Rights. In particular, detention must be necessary in the individual case.

FRA has consistently highiighted the importance of forced return monitoring pursuant to Article 8 (6) of the Return Directive as a tool to promote fundamental rights-compliant returns. Not all EU Member States have set up operational forced return monitoring Systems.

The implementation of returns entails significant risks related to core fundamental rights set out in the EU Charter of Fundamental Rights, including the right to life (Article 2), the prohibition of tor-ture, inhuman or degrading treatment or punish-ment (Article 4), the right to liberty (Article 6), the right to an effective remedy and the principle of non-refoulement (Article 19).

FRA opinion 6.4
All EU Member States bound by the Return Directive should set up an effective return monitoring System.

Chapter 7 Information society, privacy and data protection

For both technological innovation and protection of privacy and personal data, 2017 was an important year. Rapid development of new technologies brought as many opportunities as challenges. As EU Member States and EU institutions finalised their preparatory work for the application of the EU Data Protection package, new challenges arose.

Exponential progress in research related to 'big data' and artificial intelligence, and their promises in fields as diverse as health, security and business markets, pushed public authorities and civil society to question the real impact these may have on citizens - and especially on their fundamental rights. Meanwhile, two large-scale malware attacks strongly challenged digital security. The EU's recent reforms in the data protection and cybersecurity fields, as well as its current efforts in relation to e-privacy, proved to be timely and relevant in light of these developments.

Article 8 (3) of the EU Charter of Fundamental Rights and Article 16 (2) of the TFEU recognise the protection of personal data as a fundamental right. They affirm that compliance with data protection rules must be subject to control by an independent authority. The oversight and enforcement of data protection rights can become reality if such authorities have the necessary human, technical and financial resources, including adequate premises and infras-tructure, to ensure effective performance of their tasks and exercise of their powers. Such a requirement is grounded in Article 52 (2) of the General Data Protection Regulation (GDPR).

FRA opinion 7.1
EU Member States should thoroughly assess the human and financial resources, including technical skills, necessary for the operations of data protection authorities in view of their new responsibilities deriving from the enhanced powers and competences set out under the Generat Data Protection Regulation.

The GDPR requires that data protection authorities ensure awareness and understanding of the rights and risks related to the processing of personal data. However, most of the guidelines and awareness-raising campaigns are mainly accessible online, so access to the internet is crucial for awareness of rights. In a majority of Member States, there is still an important digital divide between generations in terms of the use of the internet.

FRA opinion 7.2
Data protection authorities should ensure that all data Controllers give specific attention to children and older EU citizens to guarantee equal awareness of data protection and privacy rights, and to reduce the vulnerability caused by digital illiteracy.

Taking into account the analysis of the CJEU, the scope of data retention carried out pursuant to the Passenger Name Record (PNR) agreement and PNR Directive should be limited to what is strictly necessary. This means excluding the retention of data of passengers who have already departed and who do not present, in principle, a risk of terrorism or serious transnational crime - at least where nei-ther the checks and verifications nor any other cir-cumstances have revealed objective evidence of such a risk.

FRA opinion 7.3
When reviewing the PNR Directive pursuant to Article 19, the EU legislator should pay par-ticular attention to the analysis of the Court of Justice of the European Union (CJEU). Notably, it should consider reviewing the provisions of the PNR Directive to //m/t the scope of data retention, after air passengers' departure, to those passengers who may objectively present a risk in terms of terrorism and/or serious transnational crime.

Data protection authorities have the task of monitoring and enforcing the application of the GDPR, and promoting the understanding of risks, rules, safeguards and rights in relation to personal data processing. This role becomes even more important in the context of 'big data' analytics, which allows for unprecedented availability, sharing and auto-mated use of personal data. As the European Parliament and the Council of Europe have highlighted, such processing - operated by natural persons, private companies and public authorities - could pose a number of challenges to individuals' fundamental rights, notably their rights to privacy, protection of personal data and non-discrimination. Further research is still necessary to identify such challenges clearly and address them promptly.

FRA opinion 7.4
EU Member States should evaluate the impact of 'big data' analytics and consider how to address related risks to fundamental rights through strong, independent and effective supervisory mechanisms. Given their expertise, data protection authorities should be actively involved in these processes.

The Directive on security of network and information Systems (NIS Directive) enhances the overall level of network and Information System security by, among other strategies, imposing a variety of obligations on national "operators of an essential Service", such as electricity, transport, water, energy, health and digital infrastructure, to ensure that an effective strategy is implemented across all these vital sectors. In particular, Article 8 of the directive obliges Member States to designate one or more national competent authorities, as well as a national single point of contact on the security of network and information Systems, which "shall, whenever appropriate and in accordance with national law, consult and cooperate with the relevant national law enforcement authorities and national data protection authorities". Implementation initiatives in several Member States have highlighted the need to ensure that the data protection principles enshrined in the GDPR are properly taken on board and reflected in national legislation transposing the NIS Directive.

FRA opinion 7.5
EU Member States should ensure that the national provisions transposing the NIS Directive into national law adhere to the protection principles enshrined in the General Data Protection Regu-lation (GDPR). In particular, national provisions need to adhere to the principles of purpose limitation, data minimisation, data security, sto-rage limitation and accountability, especially as regards the NIS Directive's Obligation for national authorities to cooperate with national law enforcement and data protection authorities.

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