FECL 41 (February 1996):

RULES FOR EUROPOL'S ANALYSIS FILES: INCONGRUOUS NEW DRAFT

Mounting protest in both national parliaments and the European Parliament against Europol plans to register sensitive information on persons not suspected of any crime is causing alarm within the Council of Justice and Home Affairs (JHA). In what a appears to be a somewhat panicky attempt to calm critics, the new Italian Council Presidency has drawn up a new draft document on implementing rules for Europol's so-called analysis registers. At first sight, the draft contains some improvements. But on the crucial issue of whether it shall be allowed to store data on features such as the political views and the sexual behaviour of non-suspects, the Italian draft is evasive and incongruous.

The Europol Convention provides for the collection, processing and utilisation of personal data concerning one category of criminal suspect and 4 further categories on non-suspects, all listed under Article 10.1(1-5):

  1. suspected criminals and suspected future criminals;
  2. Possible witnesses in future criminal proceedings;
  3. Victims or possible future victims;
  4. "contacts and associates";
  5. Possible informers.

The Convention, however, does not define the types of personal data to be stored. These rules are to be set up in separate "implementing rules" for Europol's analysis registers, prepared by the agency's Management Board and adopted by the Council.

A first Spanish draft of the implementing rules expressly provided for extensive registration of highly sensitive types of personal data (race, political and religious views, sexual behaviour, health) concerning even the four categories of non-suspects named in Article 10.1 of the Convention (see FECL No.39: "Europol's analysis registers to contain data on race, political opinion and sexual behavio").

The relevant provisions have undergone considerable changes in the new Italian draft of 4 January 1996.

Article 3 (of the Italian draft implementing rules) authorises Europol to store and process data "relating to persons referred to in Article 10.1 [of the Europol Convention]", i.e. information on all five categories of persons named in the this Article.

Article 4 (of the Italian draft) continues with defining 13 categories of data that may be processed "to the extent required for the analysis". They include features such as "general information", "lifestyle, routine and movements", and "contacts with persons, bodies or national and international companies". However, as opposed to the Spanish draft, the new Italian proposal appears to limit the storing and processing of the above types to suspect criminals and "future criminals" according to Article 10.1(1) of the Europol Convention and simply refrains from naming the types of information that may be stored on non-suspects (according to Article 10.1(2-5) of the Europol Convention).

Finally, Article 5 of the Italian draft says:

"It shall be forbidden to collect personal data solely on the grounds that they relate to racial origin, religious or other beliefs, sexual life, political opinions or membership of movements or organisations that are not prohibited by law. Such data may be collected, stored and processed only if they supplement other personal data stored in the analysis file and only where they are absolutely necessary, taking into account the purpose of the file in question" [our emphasis].

 

Council Presidency spreads smoke screen

Some weeks ago, the Italian Deputy Minister of Foreign Affairs, Walter Gardini, made a new attempt on behalf of the Council Presidency, to calm parliamentary criticism against Europol's analysis files. Replying to questions from MEPs, Mr Gardini at first flatly denied any plans to allow Europol to store personal data on race, political and religious views and the sexual life. But the Minister was visibly caught by surprise, when a Swedish MEP, Jonas Sjöstedt, began to read aloud from the latest Italian draft which he had obtained from the Swedish government. Thereupon, Mr Gardini tried - unsuccessfully - to play down the significance of the proposal by calling it "merely a working paper of limited value".

"This once again shows the great value of Swedish rules on public access to information", Jonas Sjöstedt commented on the incident. "I was able to demonstrate that the Minister presented incorrect information in his first reply. He probably assumed that nobody in Parliament had seen the draft document." Two social democrat Danish MEPs, Kirsten Jensen and Freddy Blak, also showed indignation at the plans for Europol's analysis files. "It's incredible that such a proposal can exist at all, and it is just as incredible that the Presidency of the Council can imagine that it will get political support for such a register", Ms Jensen commented to the Danish newspaper, Det Ny Notat, after the debate.

 

Sources: Proposal for rules applicable to analysis files, from the Council Presidency to the Europol Working Party, Brussels, 4.1.96, 4038/96, Limite, Europol 2 (23 p., in English); Staffan Dahllöf, journalist, Copenhagen.

 

 

Comment

In their present shape, the above-named provisions of the Italian draft are completely incongruous. Indeed, the very purpose of the Implementing rules for Europol's analysis files is to specify the various types of information that may be stored with regard to the five categories of persons named in Article 10.1 of the Europol Convention. By leaving the question open with regard to the four categories of non-suspects (witnesses, victims, etc) the Italian draft looks very much like a desperate attempt to circumvent a very controversial issue by simply postponing its regulation.

Obviously, this is unlikely to put an end to criticism against Europol's planned "analytical" activities. As long as the Implementing Rules contain no regulations with regard to the type of information that may be stored on the categories of non-suspect persons named in Article 10.1 of the Europol Convention, we have good reasons to believe that Europol has not renounced its original objectives, laid down with commendable bluntness in the first Spanish draft of July 1995.

The national parliaments and the European Parliament would be well advised to demand immediate clarification. Indeed, once the Europol Convention is ratified, its implementing rules can be changed and further detailed by Europol's Management Board and the Council without their involvement. Could the Council's awareness of this be an explanation for the striking vagueness of the Italian document?

 

N.B.