FECL 52 (December 1997):

GERMANY JOINS EUROPOL... DESPITE STRONG RESERVATIONS FROM JUDICIAL MAGISTRATES

The German Federal Parliament has ratified the Europol Convention despite strong reservations of no lesser than the Federal Prosecutor General, Germany's largest association of judicial magistrates and the Conference of the Data Protection Commissioners.

Germany's participation in Europol was approved by the Bundestag (lower house) in October and by the Bundesrat (the parliamentary assembly made of representatives of the länder-governments) in November.

In the Bundestag the bill, supported by the Christian-Democrats (CDU/CSU) but contested by their liberal junior coalition partners of the FDP and by the Greens and the ex-communist PDS, passed thanks to the abstention of the Social-Democrat (SPD) group. In the Bundesrat, the Länder governed by red-green coalitions (SPD-Greens) voted against ratification, while those governed by the SPD were divided.

The ratification of the Convention does not come as a surprise in the country whose government has long been considered the driving force behind the setting up of Europol. What is surprising is that the planned ratification somewhat suddenly met with massive criticism from very influential circles in the weeks preceding the vote.

 

Major judges' and public prosecutors' association warns against Europol

In September, Rainer Voss, the president of Deutscher Richterbund (Germany's largest association of legal magistrates, representing over 14,000 judges and prosecutors) warned against ratification in an interview with the newspaper Süddeutsche Zeitung. Voss said the EU needed a European police, but not in the proposed form. In its present conception, he said, Europol "breaches with our understanding of democracy", since the Convention provides neither for sufficient democratic scrutiny nor for a satisfactory control of the judiciary of the member states over Europol. Referring, among others, to the controversial protocol establishing immunity from criminal prosecution for Europol officials, Voss said it was "completely wrong" to set up Europol first and to address the fundamental question of the agency's democratic legitimacy later. He, moreover, censured the lacking competencies of the European Court of Justice and the European Parliament and stressed "it is high time to wake up and create the democratic structures for this Europe. After all, in a democracy we cannot say: let's abolish democracy for two years and set up dictatorship, and when after two years we have done everything we couldn't have achieved otherwise, we will reintroduce democracy". Voss called on the governments of the member states to begin with creating a European penal procedure system before setting up a European police. "The ratification of the Europol Convention should not take place before it is clear who controls Europol", the president of Deutscher Richterbund concluded.

 

Federal Prosecutor General deplores lack of judicial control

Also, Germany's Federal Prosecutor General, Kay Nehm, criticised the lack of judicial control over Europol. In an interview with the public German Radio station Deutschlandfunk he said it was "unfortunate" that police, rather than judiciary, were the driving force behind European unity in the fields of criminal prosecution and investigation. Nehm said a control of the police through courts and public prosecutors was absolutely indispensable in protecting fundamental rights and liberties.

 

Data protection commissioners voice serious objections

The standing Conference of German Data Protection Commissioners (länder and federal) repeatedly objected to the registration provided for by the Europol Convention of sensitive personal data (including the data of persons not suspected of any criminal behaviour) in Europol's computerised data bases.

The non-governmental organisation for data protection, Deutsche Vereinigung für Datenschutz, (DVD) called on the parliament not to ratify the Convention, stressing among other things that elastic and vague data protection rules in the Convention put citizens at risk of getting caught in "the computer network of a super-agency". DVD further emphasised the fact that Europol can refuse to disclose information to applicants on their own data without having to motivate such a decision, and without any possibility for a complaint before a court.

Sources: Süddeutsche Zeitung, 22.9.97; Frankfurter Rundschau, 21.10.97, 5.11.97; press release of claudia Roth, Green MEP, 7.11.97.