New Complaint, Commission/Ombudsman/Parliament

[szaxe]

Hi, I sent complaints to the European Ombudsman/Commission/Parliament and was basically told no complaints can be brought against a European Legislative procedure. I Want this response expanded to cover Human Rights, if that is the case, but want definitive answers.


Complaints can be made up to two years after the action being complained off.


I have questioned the Ombudsman on 11/14/17 of March 2014 on the Human Rights issue, but have not recieved any official reply except the Social Media Officer, Anne Bundgaard Christensen tried striking up a conversation about my questions on the "Vapers in Power" Facebook page. I didn't respond as a discussion on Social Media is not what I want.

So I have now put in an official complaint to the European Commission/Ombudsman/Parliament .... There is usually a reason Institutions/Ombudsmen fail to answer.

Please note this is the start of further moves about the lack of opportunity for European Citizens to have an "effective remedy" when Human Right Violations are perpetrated by European institutions or Legislation. I will make further updates/responses after the Institutions respond.





Quote:



Complaint European Commission





“The European Union sees human rights as universal and indivisible. It actively promotes and defends them both within its borders and when engaging in relations with non-EU countries.



Human rights, democracy and the rule of law are core values of the European Union. Embedded in its founding treaty, they were reinforced when the EU adopted the Charter of Fundamental Rights in 2000, and strengthened still further when the Charter became legally binding with the entry into force of the Lisbon Treaty in 2009.”



Complaint European Commission



This complaint pertains to Art. 20, previously Art.18 of the Tobacco Products Directive.



This Complaint relies upon the “Code of good administrative behaviour” I contend that poorly considered recommendations from the Commission led to legislation by the European Parliament, that if enacted on the National level will violate mine and other European Citizens Human Rights.



It is generally accepted that smokers have their own individual requirement for the amount of nicotine to attain and maintain satisfaction.



It is also generally accepted that it is not the nicotine that does harm but the tar and 4000 or so other chemicals created from the burning of tobacco that does damage to smokers health and can shorten their life expectancy.



Any legislation that directly or indirectly leads to smokers increasing the amount of cigarettes they smoke must be considered as a violation of the “Right to Life” enshrined in European and International Human Right conventions. I contend that the same principle should be applied when considering Electronic Cigarettes and the other constituents of E liquid apart from the nicotine.



The Convention on Human Rights places a positive obligation on Member States of the EU to respect the "Right to Life". This is presently interpreted as excluding Public Authorities, including Governments from enacting legislation that may put their citizens lives in danger or which could affect their life expectancy.



The European Commission, against the recommendations of several scientists and other experts in the field added a new Article to the Tobacco Products Directive Art.18, currently Art.20.



The Commissions recommendations which were accepted and passed by the European Parliament have requirements for member States to limit the strength of nicotine to 20mg/Ml upper limit for E-liquids used for Electronic Cigarettes.



Although it is generally accepted that obtaining nicotine via Electronic Cigarettes is many times safer than via burning tobacco, the other ingredients of E liquid may still have adverse effects, with the the chances of harm increasing with the amounts of vapour inhaled.



It is highly unlikely the European Commission/Parliaments legislation to restrict the strength of E liquid will decrease the amount of nicotine an ex-smoker will ingest to satisfy their nicotine requirement, so the only logical outcome from limiting the nicotine strength is more E liquid will be required for satisfaction.



To put this simply, whatever strength of nicotine the Commission/Parliament impose on Cigarettes or Electronic Cigarettes, users of stronger strengths will merely vape or smoke more to attain/maintain satisfaction. This will increase the amount some citizens smoke or vape which surely can not be considered as responsible legislation.



I have complained to the Commission previously, however not on this issue of Human Rights. I believe the legislation could have dire health consequences for myself and many citizens of the EU.



I did not raise the Human Right issue as it was not particularly referred to in the “Code of good administrative behaviour”, however after further reading I now consider it was an issue the Commission should have taken into account before making recommendations to the Parliament.



The European Ombudsman has stated that the actions of the Commission are not her concern when they are a part of a legislative procedure, I now consider that to be incorrect. See below for a quote from the Ombudsman's website.



“The Ombudsmen as human rights protection mechanisms



As the former Commissioner for Human Rights of the Council of Europe, Alvaro Gil Robles stated: "Through their independence, flexibility and non-conflictual approach to the relations between individuals and the public administration, Ombudsmen have a key role to play in the protection of individual rights. (...) Whilst explicit reference to human rights protection may be absent from the mandate of certain ombudsmen, it is clear that human rights violations by state authorities constitute, at the same time, serious cases of maladministration, and as such fall within the concerns of even the most narrowly defined institutions".



In the case of the European Ombudsman, Article 228 of the Treaty on the Functioning of the European Union empowers me to investigate complaints about maladministration in the activities of the Union institutions, bodies, offices, or agencies. From the very beginning of the European Ombudsman's activity, the term "maladministration" has been interpreted broadly and in a manner that makes it possible to include respect for the rule of law, for principles of good administration, and for fundamental rights in the Ombudsman's remit. This means that allegations that the institutions have breached a fundamental right fall within my mandate.“



I will also be putting this complaint to the European Ombudsman and Parliament.



Quote:

[giles]

Sorry szaxe, I can't see it as a useful battleground - the 'right to life' argument would surely fail because cigarette use is, at least in theory, a choice. I think funds/sympathetic lawyers would be better employed on, for instance, investigating whether the EU charter allows them to legislate on this sort of thing for any purpose other than harmonisation of law in different EU countries.

[szaxe]

Mar 31, 2014 13:02:16 GMT giles said:

Sorry szaxe, I can't see it as a useful battleground - the 'right to life' argument would surely fail because cigarette use is, at least in theory, a choice. I think funds/sympathetic lawyers would be better employed on, for instance, investigating whether the EU charter allows them to legislate on this sort of thing for any purpose other than harmonisation of law in different EU countries.

Human rights, Rule of law, Maladministration according to the Ombudsman are exempt from scrutiny if part of a legislative procedure. That is what I want establishing prior to further action.

However on the point of Human Rights, a few points. First of all the Right to an "effective remedy" is the right to dispute "Theory" Win or lose is another subject.

But as regards your direct "theory", sky diving is a choice, but in my opinion legislation banning parachutes would also warrant funds and sympathetic lawyers time and effort as regards the "Right to life" 

PS, note there is a big difference between banning Skydiving and banning the safety equipment ....  They are not banning vaping just removing the option to vape in an arguably safer manner.

[markm]

We are being attacked on all sides with propaganda at the moment - any way we can strike back,
and make them aware that this is not going to happen without a big fight is all to our benefit.
In the end its about who can make the most noise - they already demonstrated a willingness to
wilfully misinterpret the actual facts - politicians prefer gut instinct to reason, we need to give them gut ache!

[szaxe]

Apr 1, 2014 6:38:01 GMT markm said:

We are being attacked on all sides with propaganda at the moment - any way we can strike back,
 

Totally agree. At the moment we are fighting on the issue of Electronic Cigarettes, however Human Rights and the right to access to a remedy effects everyone, not just vapers.

If a member state of the EU made legislation that, even indirectly lead to people smoking more and this could not be dealt with effectively on the domestic level the case "WOULD" be admissible according to Art 6 ... "Fair trial" and or Art.13 "effective remedy" of the European Convention for the protection of Human Rights (ECHR). Note a Remedy allows an issue to be decided before the Courts or a relevant Authority. No one can make that call prior to a "Fair hearing". 

What is now coming to light is that recommendations leading to Legislation or legislation can not be challenged fairly if the recommendations/legislation is made by European Institutions. It should also be noted an Ombudsman is not recognized as an "effective remedy" by the ECHR, as he/she has no power to enforce his/her opinions.

This is a strange finding, especially as the EU is founded on Fundamental Rights they are failing to adhere too.

Art.18, presently Art.20 is showing that the proposed Human Rights violations of vapers, can easily be applied to any minority or victim.

[Deleted]

Human rights ----- in real life doesn't exist , all the rich people or companies make the rules. We have only 1 chance to change something every few years ,when we vote , unfortunately our choice is always the wrong person.

[giles]

szaxe your intention seems to me to be more about the EU than about vaping.

markm I don't agree. Currently we have the support of some politicians, some of which we stand to lose if we start doing things with which they disagree.

Both the EU legal committee and the House of Lords have expressed doubts about this legislation, which makes the chances of appeal against any action to enforce it look reasonable. But I do not believe that we will get anywhere with something that cannot be supported in the courts without bringing the whole house of cards down.

@chris2005 you are of course right. Democracy is a bad idea, it just happens to be better than all the alternatives. And no, there are no natural "Human Rights" - it is a nonsense phrase dreamt up by the US founding fathers to sell a constitution. No right can exist without a corresponding obligation on the part of government. But human obligations do exist - they are things that people are required to do (or required to not do) and can be prosecuted if they don't act accordingly. Human Rights legislation is actually about creating and enforcing obligations. And just occasionally we manage to create some useful obligations in spite of the rich people and the companies.

[szaxe]

Apr 1, 2014 11:46:16 GMT giles said:

szaxe your intention seems to me to be more about the EU than about vaping.

 markm

My intentions are to try to deal with the situation now rather than wait for the laws to be enacted on the National level. You talk of lawyers looking at whether they can pass such laws? They did pass these laws, and if they shouldn't have how do you propose challenging them? and through which lawyers and what process?

Clive Bates, myself and others brought the issue of law, proportionality, impartiality, consistency, etc through the only option available "the code of good administrative behaviour", through the European Ombudsman/Commission, I also petitioned the Complaint to the European Parliament.

I, like Clive Bates raised the legal side and the Ombudsman didn't discount our arguments, she just stated the arguments were not valid because they were a part of the legislative process, I just want confirmation that this includes Human Rights to have a full deck.

If you have a better way, then tell us how?

PS, what appeal process do you refer too?