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ARTICLE 99 INSPECTION Report of the Schengen Joint Supervisory Authority on an Inspection of the Use of Article 99 Alerts in the Schengen Information System

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ARTICLE 99 INSPECTION Report of the Schengen Joint Supervisory Authority on an Inspection of the Use of Article 99 Alerts in the Schengen Information System ARTICLE 99 INSPECTION Report of the Schengen Joint Supervisory Authority on an inspection of the use of Article 99 alerts in the Schengen Information System Report nr. 07-02 Brussels, 18 December 2007 Contents I. Introduction..................................................................................................................................3 II. Data Protection Supervision........................................................................................................3 III. Reason for inspection...................................................................................................................4 IV. Scope and method of inspection...................................................................................................5 V. Reactions received .......................................................................................................................6 VI. Results..........................................................................................................................................6 A. Decision of Article 99 Alert .................................................................................................... 6 1. Competent Authorities that may decide on an Article 99 alert.................................................................................6 2. A specific procedure has been established for Article 99 alerts...............................................................................7 3. A prerequisite for such alerts is the prosecution of criminal offences and the prevention of threats to public security (Article 99 par. 2)...............................................................................................................................................7 4. Statistics of article 99 Alerts...........................................................................................................................................7 5. Categories of criminal offences that fall under article 99..........................................................................................8 6. Are the criminal offences categories defined by specific law? .................................................................................8 7. Basic criteria to decide between the purpose of discrete surveillance or of specific check.................................8 8. Additional national laws ..................................................................................................................................................9 VII. Content.........................................................................................................................................9 B. Content of the Alert ................................................................................................................ 9 1. Is the content in conformity with Article 99 alert?......................................................................................................9 2. Is there a file at the SIRENE bureau?..........................................................................................................................10 3. Are there any requests of the authorities responsible for state security (Art.99 par.3)? .....................................10 4. Do these authorities responsible for state security have access to Article 99 alerts?..........................................10 5. Results of the checks:.....................................................................................................................................................10 VIII. Considerations and recommendations.......................................................................................11 Answers .......................................................................................................................................16 Data Protection Secretary - Article 99 Report - Report 07-02, 18 December 2007 1 Executive Summary. One of the main characteristic features of the Schengen Information System is sharing responsibility for using this system in accordance with the provisions set out in the Schengen Convention and in national laws. A survey of the Schengen Joint Supervisory Authority to the use of the Article 99 alerts in the Schengen Information System provided much information about the actual use of these alerts. Although the Schengen Convention does not intend to harmonize national practices in law enforcement, the results of this survey demonstrate that there is a clear need for further harmonization. Especially the basic principle that Article 99 data are accurate, up to date and lawful should be better ensured by developing formal and written procedures on a national level. The Schengen Joint Supervisory Authority proposes in this report several recommendations concerning the use of Article 99 and an improved compliance with the provisions of the Schengen Convention. The findings of this survey will also be valuable for the introduction of the Second generation of the Schengen Information System. Data Protection Secretary - Article 99 Report - Report 07-02, 18 December 2007 2 I. Introduction In June 2006, the Schengen Joint Supervisory Authority (JSA) requested the national data protection authorities to inspect the Article 99 alerts entered in the Schengen Information System (SIS) by their competent authorities. This is the second survey the JSA initiated on the use of a specific article of the Schengen Convention (e.g. concerning article 96 in the year 2005). Based on previous experiences, these surveys can provide insight and knowledge on how Schengen States1 implement and use those articles of the Schengen Convention and any practical problems that may occur. Often the results indicate various differences between the Schengen States enabling the JSA to draw conclusions and to recommend the necessary measures. This system of surveys provides significant help with the harmonization of the implementation of Schengen Convention and the use of the SIS. This report presents the findings on the use of Article 99 alerts by the Schengen States. The final report was adopted in the meeting of the JSA on 18 December 2007. II. Data Protection Supervision Pursuant to the provisions of the Schengen Convention2, personal data are processed in the SIS by the participating states (the Schengen States). The Schengen Convention divides the data protection supervision on the content and the functioning of the SIS between national data protection authorities and the JSA. A Schengen State entering data in the system is responsible for the processing of these data in the SIS, supervised by the national data protection authority. The JSA has the overall task to supervise the technical support function of the SIS, which is distributing the SIS-data to all Schengen States. Article 115 of the Schengen Convention describes the tasks of the JSA. Apart from checking the technical support function of the SIS, the JSA is charged with examining any difficulties of application or interpretation that may arise during the operation of the SIS, as well as drawing up harmonized proposals for joint solutions to existing problems. This forms the legal basis for initiating a systematic set of surveys on the implementation of a specific article of the Schengen 1 Every country participating in the Schengen Information System 2 The Convention implementing the Schengen Agreement of 14 June 1985, OJ.L 239, 22/09/2000 Data Protection Secretary - Article 99 Report - Report 07-02, 18 December 2007 3 Convention. The JSA selects the object of inspection based on the identification of particular problems revealed by the sharing experiences among delegations in the JSA. III. Reason for inspection During the JSA meeting on 2 March 2006, some concerns were raised about Article 99 alerts. It was noted that the number of alerts entered in SIS under this article demonstrated huge differences between the Schengen States (see the table below). This was a strong indication that the Schengen States might use this article in a different manner. For example, it was noted that Iceland and Greece until then had not used this article at all, while other countries (i.e. Italy, France) have entered thousands of alerts. Only five (5) Schengen States then used article 99(2) dealing with specific checks. Based on the figures of 19 January 2006, the SIS contained the following numbers of Article 99 alerts: Country AT BE DE DK ES FI FR GR IS Art.99.2 (Observation) 642 46 1104 251 14 35 9240 0 0 Art.99.2 ( Check) 0 62 0 0 1888 0 5945 0 0 Country IT LU NL NO PT SE Art.99.2 (Observation) 10629 18 0 53 22 292 Art.99.2 ( Check) 100 0 672 0 0 0 According to later statistics (middle year of 2006- see table below) more information on the use of Article 99 was available. Denmark was the first Schengen State entering alerts under Article 99(3): alerts from authorities responsible for State Security and Greece entered its first alert under Article 99(2). A fluctuation in the numbers of alerts was also detected: Austria entered 72 alerts under Article 99(2), Belgium doubled those alerts (from 46 alerts now 96), while Germany reduced its numbers (from 1104 to 790 alerts). Data Protection Secretary - Article 99 Report - Report 07-02, 18 December 2007 4 Based on the figures of 1 October 2006, the SIS contained the following numbers of Article 99 alerts: Country AT BE DE DK ES FI FR GR IS Art.99.2 (Observation) 714 96 790 196 15 58 9615 1 0 Art.99.2 ( Check) 0 80 0 0 2141 0 6493 0 0 Country IT LU NL
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