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Access to Eurodac by Law Enforcement Authorities ACCESS TO EURODAC BY LAW ENFORCEMENT AUTHORITIES - AN ASSESSMENT June 2011 This paper was written and researched by Vincent Eechaudt, under the supervision of dr. H.D. Wolswijk (Groningen University). 2 VINCENT EECHAUDT For more information concerning this paper, feel free to contact Vincent Eechaudt [email protected] [email protected] The views in this report are the author's own and do not necessarily reflect those of the European Council on Refugees and Exiles or Groningen University. This paper is distributed in the form submitted by the author. There has been no additional copyediting or typesetting. Reproduction is authorised provided the source is acknowledged. 3 ACCESS TO EURODAC BY LAW ENFORCEMENT AUTHORITIES 4 VINCENT EECHAUDT “Justice cannot be for one side alone, but must be for both.” Eleanor Roosevelt 5 ACCESS TO EURODAC BY LAW ENFORCEMENT AUTHORITIES Many thanks go out to my parents, sister and partner, who gave me a compass to orient myself in life. I would also like to thank Dr. Hein Wolswijk at Groningen University, Kris Pollet at the European Council for Refugees and Exiles, Els De Busser at the Max Planck Institute For Foreign and International Criminal Law, the people at the Institute for International Research on Criminal Policy (Ghent University), particularly Wendy De Bondt and Cornelia Riehle at the Academy of European Law, for making this research possible and for assisting me in this paper‟s process. 6 VINCENT EECHAUDT 7 ACCESS TO EURODAC BY LAW ENFORCEMENT AUTHORITIES TABLE OF CONTENTS Table of contents ..................................................................................................................... p 7 Abstract ................................................................................................................................... p 9 List of abbreviations .............................................................................................................. p 10 1. Introduction 1. Aim, context and relevance of the study ................................................................... p 11 2. Methodology ............................................................................................................. p 14 3. The various chapters at a glance................................................................................ p 14 2. The EU policy on irregular migration and the link with its security policy 1. Globalisation and migration ...................................................................................... p 16 2. The EU policy on irregular migration and asylum .................................................... p 17 3. The use of databases and the link with the EU security policy ................................. p 20 3. On the access by law enforcement authorities and Europol to Eurodac 1. A short history of the proposal concerning LEA‟s access to Eurodac ...................... p 23 2. What do the proposals say? ....................................................................................... p 25 3. Motivating the proposals Prevent, detect and investigate terrorism and other serious crime ...................... p 26 Existing access to national asylum databases...................................................... p 30 4. Concerns on data protection The principle of legality, purpose limitations and function creep ....................... p 33 The principles of proportionality and necessity .................................................. p 38 Effective control on the data ............................................................................... p 44 5. Stigmatising asylum seekers? .................................................................................... p 48 6. The need for a complete, qualitative database and correct identifications ................ p 50 4. Conclusions ...................................................................................................................... p 52 Bibliography ........................................................................................................................ p 55 8 VINCENT EECHAUDT Annexes ................................................................................................................................ p 67 1. Proposal for a Council Decision on access to Eurodac, COM(2009) 344 2. Proposal for a Regulation establishing Eurodac, COM(2009) 342 9 ACCESS TO EURODAC BY LAW ENFORCEMENT AUTHORITIES ABSTRACT In 2009 the European Commission presented a proposal to open up Eurodac for law enforcement purposes, as part of the bigger reform of the Dublin system. However, this proposal has been heavily criticised by different stakeholders. This paper analyses the different comments given on the proposal and gives arguments pro or contra. More particularly, the reasons for this proposal, concerns of data protection, the stigmatisation of asylum seekers and the false recognition rates are assessed. This paper thus tries to establish a balance between law enforcement on the one hand and legal safeguards and human rights on the other hand. Keywords: Eurodac, law enforcement authorities, data protection, asylum seekers. 10 VINCENT EECHAUDT LIST OF ABBREVIATIONS AFSJ: Area of Freedom, Security and Justice CEAS: Common European Asylum System CFREU: Charter of Fundamental Rights of the European Union. Council: Council of the European Union EC: European Commission ECHR: European Convention of Human Rights of the Council of Europe. ECJ: European Court of Justice ECtHR: European Court of Human Rights EDPS: European Data Protection Supervisor LEA access: Law enforcement authorities‟ access to Eurodac. Depending on the stage of the negotiations, this includes access by Europol to Eurodac. It will be made sufficiently clear in the paper when Europol is not yet involved. SIS (II): Schengen Information System (II). This system also contains information on illegally apprehended persons. It was originally conceived for 18 member states, however SIS II is now under development. 11 ACCESS TO EURODAC BY LAW ENFORCEMENT AUTHORITIES 1. INTRODUCTION _________________________________________________________ “[There is] the need to ensure that the police exercise their powers to control and prevent crime in a manner which fully respects [human rights] guarantees which legitimately place restraints on the scope of their action to investigate crime and bring offenders to justice” - European Court of Human Rights, Osman v. UK, 1999 1. Aim, context and relevance of the study This study seeks to provide insight into the European Commission proposals for granting the member states‟ law enforcement authorities and Europol access to Eurodac for law enforcement purposes. Hence, different points of controversy will be critically assessed. The emphasis will be placed on whether or not there is a substantial benefit for law enforcement and if there will be enough safeguards against misuse and other detrimental consequences of the proposal for its target group: refugees and migrants. In other words, the basic research question raised in the following paper is whether the proposals to open up Eurodac for law enforcement purposes can be seen as balanced measures to combat terrorism and serious crime or if the proposals neglect human rights concerns in the field of migration and justice. To have a good understanding of the discussed topics however, the proposal on LEA access will first be contextualised in the current EU policy in the area of freedom, security and justice. The added value of this research lies in approaching migration issues from a criminal law perspective and whether or not the proposed measures take into account the specific sensitivities when dealing with asylum seekers. Co-operation in the field of justice, security and migration (commonly referred to as the Area of Freedom, Security and Justice) has already been taking place a few decades on the European Union level. Since the Maastricht Treaty1 was signed in 1992, co-operation was formalised with the creation of the so-called third pillar2, which was characterised by an intergovernmental decision-making process and thus only minor democratic control. With the adoption of the Amsterdam Treaty3 in 1997 and its entry into force in 1999, the asylum and migration policy was transferred to the first pillar, the result of which reflected in the fact that the European Parliament had the right to participate in the decision-making process. This is why the European Commission presented two separate proposals on law enforcement authorities‟ access to Eurodac4 (further: LEA‟s access) as it was a combination of first and third pillar policy measures. Since the entry into force of the Treaty of Lisbon5 the pillar 1 Treaty on European Union, 29 July 1992, OJ C 191. 2 Its competencies were defined in Title VI of the Maastricht Treaty. 3 Treaty of Amsterdam, 10 November 1997, OJ C 340. 4 Commission of the European Communities, COM(2009) 342, Amended proposal for a regulation of the European Parliament and of the Council concerning the establishment of 'EURODAC' for the comparison of fingerprints for the effective application of Regulation (EC) No […/…] [establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person] (Recast version), 10 September 2009, 74 p. and Commission of the European Communities, COM(2009) 344 final, Proposal for a Council
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