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Home arrow newsitems arrow ECHR President Raimondi to EF on Discretionary Power: Decision-Making proces(Dialogue State-Citizen?

ECHR President Raimondi to EF on Discretionary Power: Decision-Making proces(Dialogue State-Citizen?

Pisac ACM
25. 01. 2018.

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*Strasbourg/ECHR/Angelo Marcopolo/- Replying to an "Eurofora"s Question at the Annual Press Conference of ECHR, its experienced President, Guido Raimondi from Italy, explained that the PanEuropean Court of Strasbourg "is Developing" quite wide possibilities for Judicial Control of Public Authorities' Discretionary Power, in order to Prevent eventual Abuse vis a vis Citizens, inter alia, also by imposign the Respect of a Number of Rules, concerning the Decision-Making process of any Public Administration, (f.ex., Prior Information of affected Citizens, Contradictory Procedure, Sufficient and Correct Motivation of Decisions, etc), i.e. in a way quite similar to an elementary Dialogue between States and Citizens Before Taking Important Decisions which Affect their Lives and/or Society at large, as "Eurofora"s Wider Project and Views support since a long time.


Such ECHR's moves (that President Raimondi analyzed here in a Crystal-clear way) coincide also with Both relevant EU Developments, particularly since Lisbon Treaty, as well as with even more Recent COE's PanEuropean Legal Space's own developments, as "Eurofora" has already Highlighted recently, (See, f.ex.: http://www.eurofora.net/newsflashes/news/coeruleoflawchecklistandeuroforaproject.html, etc).


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- In our Question, "Eurofora" started by pointing at the Fact that : -"A Few Months ago, in Strasbourg, CoE's Parliamentary Assembly endorsed a Measure adopted by the Venice Commission, (supported also by the Congress of Local/Regional Authorities of Europe : CLRAE), which concerns a General Mechanism, for All (COE's 47) Member Countries, about the relations between Citizens and Public Authorities, in order to Prevent Risks of Abuse of Discretionary Power."


- "I.e. when a State can Decide Whatever they like, in the Substance of the matter, But has to Respect a Series of (Decision-Making Process') Rules, that we know also in Adminstrative Law : As, f.ex., to Inform the Persons involved, to Hear them Before it Decides, to present a Motivation that is Sufficient, (Legally and Factaully) Correct, etc", we explained in this regard.  

 

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 - "Obviously, it's Not Directly and Explicitly Linked with some ECHR Articles. But, according to your Experience, is there Something - or there Might be Something, Hopefully - inside the PanEuropean Mechanism for Human Rights, - as there are some Similar things in EU Law, after Lisbon Treaty (EIF : 2010) - which Could Develop, in the foreseable Future, a kind of Guarantee against Abuse of Discretionary Power ?", "Eurofora" asked ECHR President Raimondi.


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- ECHR's President reacted Positively, as he said, - "On your Interesting Question, concerning (Public Authorities') Discretionary Power, and possible Control by our (PanEuropean) Court :"


- "This is an Interesting Question, especialy Because the Range of (Public) Administrative activities, and the Role of the State in the Social Life, Developed and Increased, across the board, in CoE's 47 Member States, in Recent Years", Raimondi observed from the outset.


 - "But we (ECHR) have Developed a quite Rich Jurisprudence on that Issue : "


 - Even if, as "You Know, UnLike of Article 47 of (EU's) Charter of Fundamental Rights, which Covers All sorts of Jurisdiction (i.e. also Administrators, and Not only Judges), Our (CoE's) corresponding Provision in the (PanEuropean) Convention (on Human Rights), i.e. Article 6, (which is) Providing Guarantees of "Fair Trial", does Not Apply to All Forms of Jurisdictional Proceedings".


 - "So, in order to Trigger the Protection of Article 6, you Need Either a writer Obligation of a Civil Rights, or an Accusation in Criminal matters. Of course, these 2 Noions are developed Autonomously by the Case-Law of ECHR",  (which, therefore, can have a Wider Scope of Action, if it wishes so : See Infra).


=> "In this connection, the activity of the Public Administration may Fall Within he Scope of Application of Article 6 : Either Because a Civil Right is at Stake , either because what is considered as an Administrative Action in the National Law, is considered, in the Autonomous Evaluation of ECHR, (Comp. Supra), as a <<Criminal Sanction>>, which Triggers the Protection of Article 6".


 - "Of course, it's a Delicate Question, Because we are confronted with the Theory of Separation of Powers. So, we (ECHR) Require that, when Article 6 Applies, the Judge has to have what we call "Full Jurisdiction". But this has to be understood with Caution, when it comes to the Control of Activities of the Public Administration", he warned. "Because of the (Constitutional) Principle of Separation of Powers".


 - "We (ECHR) have developed a Rich Jurisprudence on this : I'd say, the Most Important Case in this direction is "Sigma TV against Cyprus", that you may know", President Raimondi indicated.


 - "And there are a Number of Principles, which have been developed, in this connection : One of them, is, for instance, that, if the Judicial Body, which is called upon to Review judicially the Behavior of the Public Administration, has Not the Power to Assess the Facts, and canNot Rely on an Independent Assessment of the Facts, that is, for instance, a Problem, in the context of Article 6 !", he pointed out. "And this is one the Examples".


 - "So, the (ECHR's relevant) Jurisprudence is, Already, Rich, and it is Developing".


 - F.ex., "there is a Case which is Pending : Ramos Nunes v. Portugal", which will be Delivered in the Forhcoming Months, by the Court, and may provide some Further Clarification on that Issue", he Announced in fine.

 

+ As for a Comparison with the relevant EU Law, the presence of ECJ's President, Tomorrow in Strasbourg, at the Official Opening of the New Judicial Year of 2018, (on the occasion of which, is organized a Timely Seminaire focused on "the Authority of Judicial Power" : Comp. Supra), might be very Interesting, potentially, in this regard too. ECHR and ECJ have indeed, Recently developed a very close Cooperation, President Raimondi stressed earlier Today.

 

 

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  imag0573_400

    An "Eugenic" loophole Amendment, which might expose to Dangers reminiscent of "3rd Reich's" notorious Genetic Abuses, hidden at the last minute inside an otherwise Good, larger Health policy Package scheduled to be voted on Thursday, was strongly denounced by a coalition of MEPs from various Political Groups and Countries, in a Press Conference held this afternoon at EU Parliament in Strasbourg.

    Mainly calling to "Select Human Embryos", via "Genetic Counselling" and "pre-implantation" Techniques including "Genetic Tests", in order to "Eradicate Hereditary rare Diseases", it might open ways to Dangerous Practices in Future, they denounced in substance.

    But they also made it clear that a much larger Report inside which this Controversial Amendment "No 15" was added in dubious circumstances, officialy destinated to struggle against "Rare Diseases", and drafted by Professor Antonios Trakatellis, was otherwise "an Excellent Report", aiming at a "completely Uncontroversial target" of Health policy on which "all MEPs and Experts are united, believing that Europe should act" to protect People's Health (See "EuroFora"'s earlier News).

    The controversy came at a particularly delicate moment for the EU in relation to Citizens, at the eve of June 2009 EU Elections, and shortly before Ireland re-votes for "Lisbon Treaty"..    

- Denouncing risks of "an Eugenic demand, very similar to what we had during the 3rd Reich in Germany, but now coming from some Scientisists themselves", German ChristianDemocrat/EPP MEP Dr. Peter Liese stressed that critical MEPs were against "Eugenic" engineering with "Selection of Human Embryos", and anything which might ultimately lead up to to a "Selection of Human Race". It doesn't help to "eradicate" Human Lives, he added.


    Several Experts and NGOs expressed "Deep Concern", as f;ex. DR M.C. Cornel of the "European Society of Human Genetics", which stressed, on this occasion, that "the importance of Non-Directiveness in Reproductive issues is a Central characteristic of Human Genetics, after the Atrocities committed in the name of Genetics in the first half or the 20th Century".

     - "This is completely Unacceptable", stressed Italian Liberal MEP Vittorio Prodi, on the Controversial Amendment, also because pushes to "eliminate early Human Life", as he noted.

     - "This opens a Dangerous Road, rather a Motorway", denounced Danish MEP Mrs Margrette Auken, from the "Greens", observing that various similar attempts were made in the Past "not only in Germany, but also in several other Countries, "even at the 1970ies", "f.ex. on forced Sterilisation of Roma" People, and other criticisable situations f.ex. in the UK, in Sweden, etc. as she said.

    + Other NGOs, as f.ex. "LebenHilfe" from Berlin, added that, among various other Risks, could also be that, by exploiting the pre-implantation Genetic Diagnostics and the Selection of "healthy" Embryos, some may "propagate" several "Eugenic" aims, starting f.ex. by pushing to eradicate Human Livies which might "Cost too much" to preserve, ultimately exposing to dangers reminiscent of the "3rd Reich"'s atrocious abuses.

    In consequence, ChristianDemocrats/EPP and "Green" MEPs "decided by Majority to vote against" this Controversial Amendment, anounced to Journalists the 5 MEPs who participated in the Press Conference, representing a wide spectrum, from Liberals to "Greens" and ChristianDemocrats, and from Hungary, Italy, Germany and Danemark up to Ireland (Gay Mitchell), etc.
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    Hungarian ChristianDemocrat MEP Laszlo Surjan said "that it was "Suddenly, at the End of the Procedure" in Committee, that "appeared this (Controversial) Amendment, which has nothing to do" with the main purpose of the Report, on which all agreed.

    He denounced an "Unhonest" move, and called to "avoid this kind of unacceptable situations". Nobody should "Select People", Surjan stressed.

    - "We (MEPs) had No Chance to Discuss" this last-minute Amendment earlier added at a Committee's level, said German MEP Peter Liese

    Speaking to "EuroFora", Dr. Liese, the Spokesman of the ChristianDemocrat/EPP Group in EU Parliament, said that MEPs didn't oppose other references of the Report f.ex. on "Genetic Tests", because they were "no proposals" to impose them, while, on the contrary, there was "a Problem" if anyone attempted to "impose" f.ex. this or that Genetic Technique and "Genetic Counselling", etc. to the People on human reproduction.
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The precise Text :
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    Controversial parts of Amendment No 15 ask mainly "to lead finally to the Eradication" of "Hereditary" "rare diseases", "through Genetic Counselling .., and ..pre-Implantation Selection of healthy Embryos".

    But  EU Rapporteur Professor Trakatellis, said to "EuroFora" that fears should be alleviated by Guarantees that all this should be done only "where appropriate", when it's "not contrary to existing National Law", and "always on a Voluntary basis", according to other Parts of the Amendment.

    He stressed that the main aim was to allow "a free and informed choice of persons involved", without imposing them anything :  - "It's not an obligatory, but advisary" text, he said.

    To make that point clear, he was ready, in agreement with many MEPs, to eventually drop at least that part of the controversial Amendment which initially called for "efforts to ..lead finally to the Eradication of those rare diseases" "which are Hereditary".

    But, until late Wednesday evening, reportedly together with many other MEPs, he stood by all the rest of the controversial Amendment, (fex. on the "Genetic Counselling" and the "pre-implantation Selection of healthy Embryos"), so that critical MEPs, going from ChristianDemocrats as Dr. Liese, to "Greens" or "Ind/Dem", observed to "EuroFora" that "this was not enough" to close the dangerous loophole.

    Particularly since, as Professor Trakatellis noted himself, "this is already allowed to the U.K.", and "other National Legislations would probably follow, sooner or later" in a similar direction. As for a general call to "Eradicate Hereditary rare Diseases", this "should happen, at any case, in practice, de facto", to protect public Health.

    On the contrary, "our goal should be to help patients suffering from rare diseases, not to eradicate the patients. In case of genetic disease risk, the decision should not be guided by scenarios" made by politicians. "Perents who may decide to accept a child, even if handicapped or with genetic disease, must be respected and supported with solidarity", critical MEPs stated.

    - "Any Pressure" to "a patient or couple (who "should be able to make an informed choice consistent with their own values"),"from health Professionals, Public Health Policies or Governemental Institutions, or Society at large, should be avoided", stresses the "European Society for Human Genetics".

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Each MEP's vote will be registered !

-----------------------------------   

The Socialist Group requested a "Split vote" on the Amendment 15, first without, and afterwards with the words "lead finally to the Eradication" etc.


    But the first "split vote" leaves intact all the other parts of the Controversial Amendment, (i.e. "Genetic Counselling", "Selection of healthy Embryos", etc).

    That's why, 3 Groups of MEPs : ChristianDemocrats/EPP, "Greens/EFA", and "Ind/Dem", have asked for "Roll Call Votes", on everything regarding the Controversial Amendment No 15, and on the final outcome of the resulting Report as amended, which will register all the individual positions to be taken by each MEP.   

Something which will obviously make each MEP think twice before voting for one or another choice, to be sure that he/she will make the right choice in front of EU Citizens, particularly at these pre-Election times...


    Crucial Votes were scheduled between 12 Noon and 1 p.m. local Strasbourg time, in the middle of a long series of various other Reports, and after a long Public Debate on the larger Health policy package, from 9 to 11.50 am.

    The specific Report inside which was hidden the controversial Amendment is due to be debated between 11 and 12 am.

    So that more last-minute Surprises may not be excluded a priori...

    Particularly at the present Historic moment, when even the Institutional Future of the EU depends on the result of a second Referendum on "Lisbon Treaty", later this year, in ...Ireland, a mainly Catholic country, where People are particularly sensitive in such kind of socio-cultural and values issues...
 

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     (Draft due to be updated).
 
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