JHA COUNCIL APPROVES RULES ON EUROPOL ANALYSIS-FILES

At its meeting of 26-27 May in Brussels, the Justice and Home Affairs (JHA) Council more than twenty proposals without debate. With respect to Europol, the Ministers agreed upon the rules applicable to analysis-files and to a protocol on the privileges and immunities of the Europol officials. The Council further adopted a Joint Action on cooperation in the fields of public order and security and approved a report extending the draft Convention on mutual assistance in criminal matters to cover the use of undercover agents and other "modern" investigation methods.

 

Europol analysis files

The Council has finally adopted the implementing rules applicable to Europol's so-called analysis files. Work on the draft had been repeatedly delayed because of strong public criticism in a number of countries of provisions authorising the storage of highly sensitive personal data regarding the race, political opinion, health, and sexual behaviour not only of criminals but also of persons not suspected of any offence.

Despite this criticism, this possibility is maintained in the final draft now adopted by the Council. Thus, regarding possible witnesses, victims and informants, the aforementioned types of data may be stored and processed, provided there is "reason to assume that they are required for the analysis [of the role of the person concerned]". A number of additional safeguards have been included in the final draft aiming at restricting to a minimum the storage of sensitive personal data. However, one can doubt their effectiveness in practice, since no procedure of authorization or external to Europol is provided for.

 

Privileges and immunities

"Political agreement" was reached on a "Protocol on the privileges and immunities of Europol, the members of its organs, the deputy directors and employees of Europol". Among other things, the Protocol provides for:

- Immunity from legal process for liability in respect of unauthorised or incorrect data processing.

- Inviolability of Europol's archives;

- Immunity of members of the organs and the staff of Europol in respect of "words spoken or written, and of acts performed by them, in the exercise of their official functions. Such immunity continues even when the person has ceased to work for Europol. "All their official papers and documents and other official materials are inviolable".

Waivers of immunity are theoretically possible under the Protocol. The Director of Europol shall waive immunity of staff members in cases where "the immunity would impede the course of justice and can be waived without prejudice to the interests of Europol". If a judicial body of a member state considers that abuse has occurred, the Europol body responsible for waiving immunity shall "consult" with the judicial authorities concerned to determine whether an abuse occurred. If no agreement is reached, the JHA Council "shall unanimously decide on the modalities according to which they shall be settled". This seems to imply that Europol's own organs, and, possibly, the Council can refuse a waiver of immunity without any involvement of a court.

Reservations to the Protocol are not possible. The Protocol is, however, subject to ratification by the parliaments of the member states.

The extraordinary extent of immunities under the Protocol was questioned even by the German Minister of Justice, Edzard Schmidt-Jortzig in an interview accorded to Süddeutsche Zeitung. He said he agreed to the Protocol only as a provisional solution during a "transitional period". Upon his request, a clause was added at the last minute to the Protocol, stating that the rules on immunity must be amended whenever the powers of Europol are being extended and that the European Court of Justice shall have some form of jurisdiction as soon as the powers to carry out its own investigations are conferred upon Europol.

 

EUROPOL/EDU budget increased by 20 per cent

The JHA Minister agreed to the EDU budget for 1998, amounting to 6.86 million ECU. This sum does not include the 3.26 million for the development of the Europol Computer System. The system will not be ready for use before 2000. This makes it necessary to find an "intermediary solution" enabling Europol to start work at the earliest possible date.

The formal adoption of the Protocol was postponed to a later JHA meeting.

 

Draft Convention on mutual assistance in criminal matters

The Council noted that work on the Convention was progressing. It approved a report extending mutual assistance under the draft Convention to include "modern methods of cross-border investigation" (including e.g. controlled deliveries and under-cover agents) and "the lawful interception of satellite-based telecommunication". Under the Convention, member states are to commit themselves to introducing national law authorising the use of the above "modern methods". Cross-border controlled deliveries (deliveries under secret surveillance by the police) will be authorised not only with respect to illegal drugs trafficking but also all other types of goods.

 

Joint Action on public order and security

The Ministers quietly adopted a Joint Action on cooperation in the fields of public order and security. The Joint Action (doc 8164/97 Enfopol 117 and 8012/97 Enfopol 111) provides for cooperation in connection with events, such as "sporting competitions, music concerts, demonstrations and road blockades", attracting many people from several member states. Police cooperation will take place in three forms:

1. Information exchange prior to events on groups of a "certain size" that are planning to enter another member state to participate in a particular event and which could disturb public order and security.

2. Exchange of police liaison officers with the task of "advising and assisting" the authorities hosting an event.

3. Annual meetings of the chiefs of the "national authorities responsible for public order and security", where matters of common interest are to be discussed.

In addition to this, joint "exercises" in preventing public order disturbances will be held.

This little publicised Joint Action is likely to seriously undermine the right of demonstration in the whole EU and to open wide the door to extensive political policing. In this respect, the recent police operation at the Amsterdam Summit was ominous, indeed (see in this FECL: "Mass arrests at the Amsterdam Summit" and "Opinion").

 

Other items

- Approval of an "explanatory report" in respect to the Convention on Extradition, signed last year. According to an official Danish note, it was agreed during the negotiations on the draft Convention to draw up an explanatory report (after the signing of the Convention!) "in which the contents of the various provisions are specified". This amounts to an implicit admission by the JHA Ministers that they have signed a Convention they did not understand. Indeed the Convention is so "flexible" (with a lot of "opt-in" and "opt-out" clauses) and vague that it is unintelligible and practically not applicable in its present form.

- Adoption of a Resolution on unaccompanied third-country minors (under the age of 18). This (non-binding) Resolution establishes a number of guidelines allegedly in the interest of unaccompanied children. Among other things, it provides that minors applying for asylum may be sent back to their country of origin or to a "safe third country" provided it is established that they will be correctly taken in charge. Unaccompanied minors who do not seek asylum may be turned away at the border.

- Signing of the EU Convention on Corruption.

- Decision on the exchange of information concerning assistance for the voluntary repatriation of third-country nationals.

- Approval of CIREA reports regarding developments in the fields of asylum and immigration policies in the member states and the situation in "refugee-producing" countries.

- Agreement of measures implementing the Dublin Convention, which was finally ratified by Ireland in May.

 

Sources: Notes by the Danish Ministry of Justice and the Aliens Board regarding the JHA-meeting of 26-27.5.96; Agence Europe reports, 27, 28, 29.5.97; Joint Action on cooperation in the fields of public order and security, doc 80/12/97 ENFOPOL 111, and 8164/97 ENFOPOL 117, 20.5.97; Protocol on the Privileges and Immunities of Europol.