Denied EU document reveals issues of public interest
- document refused on grounds it concerned the "campaign against terrorism" contains further far-reaching proposals on surveillance, particularly of immigrants, including: "preventive information gathering"
In May Statewatch applied to the Council of the European Union for a document submitted by the German delegation concerning: "Additional measures to combat terrorism" (document no: 8784/02). This latter document was of particular interest because an earlier set of far-reaching post-11 September initiatives put forward by the German delegation all of which are being acted on - this was in a "Meeting document" dated 27 September 2001 (SN 4038) - this was later converted into a proper document (13176/02) but not put on the public register of documents until 6 January 2002 (Statewatch carried a report on it in November 2001, see:
1. Plans to extend the SIS
2. German government proposals: Full-text (Word 97) Full-text (pdf)
3. Full Statewatch report with more details on "foreigners" registers and the European Commission's Communication on illegal immigration: Full report - the "enemy within" II (pdf file)
In June Statewatch was given a copy of "Additional measures to combat terrorism" (document no: 8784/02) but with "Partial access" and all the new proposals omitted. The document is "Kafkaesque" with four whole pages of text left out: "Partial access" document: 8784/02-PA (pdf)
Statewatch immediately lodged a confirmatory application (an appeal against refusal of access). The Council's Working Party on Information (WPI) unanimously agreed to reject the appeal, see document no: 10036/02 The Council's response says that the initial refusal was correct because access: "could seriously undermine its decision-making process" and deny the so-called space to think for national delegations, especially as: "no final decision has yet been taken". Moreover, they argue that the "public interest" in protecting their secret discussions until a decision has been taken is greater that the public's right to know what is being discussed.
The Council finally says that disclosure "would seriously hamper the Council's decision-making" on an issue concerning "strategic options for the coordinated European Union's campaign against terrorism"
However, the full-text of the document, which Statewatch has acquired, shows that the proposals being put forward by the German delegation - like the last ones - nearly all affects the rights and protections of refugees and asylum-seekers and of third country nationals resident in the EU, not merely strategic options but strategic proposals, see: Full-text document, which although dated 13.5.02 actually refers to the submission of the document from the German delegation dated 19.2.02: 8784/02 (pdf).
Analysis of the document
The Note from the German delegation recognises that significant initiatives have been taken following the meetings of the Justice and Home Affairs Councils on 20 September and 27/28 September 2001 and that on its proposals last year: "considerable progress has already been made on the individual proposals" but:
"Germany takes the view that in addition to these measures, preventive information gathering in the fight against terrorism needs to be significantly improved"
The Note therefore proposes:
1. On "Uniform visa and security norms": proposes that in addition to the "integration of photos" on EU residency permits the EC regulation on uniform format for residence permits (which has now been adopted), should be amend to allow for "the possibility for the future use of biometrics" in the permit.
This proposal is included in the "Council Regulation laying down a uniform format for residence permits for third country nationals" (doc no: 7989/02, 23.4.02).
2. The European Visa Identification System under discussion which would hold information on those granted and those refused visas the Commission should be asked to:
"examine the creation of a European wide central register on all third country nationals in the EU"
As Statewatch has argued, first, only two EU states have such a register, Germany and Luxembourg and second, the German register is not simply a "register" but an intelligence file on the individuals, their families and their activities: see: The "enemy within" II (pdf file). A proposal for a Regulation on residence permits has been adopted since this German proposal and does not include this idea.
3. The Schengen Implementing Agreement:
"In order for the security services to use the intelligence gathered through the visa consultation procedure a change in the law is unavoidable"
At the moment checks are only be carried on on the Schengen Information System (SIS) for the purpose of checking if a visa has been issued or been refused. It cannot, the Note says, be used for:
"policing reasons with the aim of gaining more indications for investigations in the field of criminal investigations"
What the German delegation is proposing is that the security services should have access to visa application data which holds a lot of information on people including sponsors, family members, planned travel routes etc.
This is also an example of the now consistent reference to the much wider purpose of "criminal investigations" in the context of allegedly combating terrorism.
4. The EURODAC Regulation should be changed. At present, like the SIS provisions, the EURODAC database of the fingerprints of all asylum-seekers over the age of 14 can only be access for a specified purpose, that of deciding the responsibility of EU Member States under the Dublin Agreement. The German proposal is that this restriction should be removed and that access for "police intelligence to fingerprints of persons" should be allowed, and:
"Criminal prosecutions would hereby be made considerably easier, but it would also enable the early identification and removal of security risks at a preliminary stage"
There was a major discussion when the Regulation was being drafted as to whether EURODAC could have a dual purpose and also be used to check whether an "illegal" immigrant had already applied for asylum in another Member State. It was the view of the Council's Legal Service that this would breached the proportionality rule as applied to Article 8 of the European Convention on Human Rights. The same major reservation would apply to this proposal.
Again, the primary purpose is argued to be: "Criminal prosecutions".
5. A proposal that EU agencies - Europol and Eurojust (national prosecutors) and in addition to immigration authorities - should:
"have access to data stored in the Schengen Information System (SIS)
This would "create a better information system... in the field of criminal prosecution"
This proposal is now formally on the table.
6. A call for "European wide profile search operations". Germany, the Note says, already uses these for criminal prosecutions and:
"the application of this measure is considerably more effective if it is carried out at the same time and with the same criteria by other EU Member States"
See: The "enemy within" II for an assessment of how Germany's use of "profile searches" actually works.
7. The Note ends by saying that these measures are necessary to prevent terrorism.
And goes on to argue that:
"terrorists can be identified before they enter the country (measures taken in the visa-issuing procedure)"
This assertion suggests that "terrorists" can be excluded from the EU by checking visas and refusing entry. Not only is it unlikely to be as effective as suggested but may also be used to exclude people who, while they have no "terrorist" connection, may - on the basis of intelligence reports - have a spent criminal records or have engaged in political activity and hence viewed as "inadmissibles".
Conclusion: There is nothing in this document which could not be gleaned from other accessible documents. On the other hand, there is a "public interest" in civil society having access to it so that the interests (in this case the German government delegation) pushing certain issues onto the agenda can be visible and open to comment.
USA demands for EU cooperation on frontier controls
Some requests for access to documents are refused, others remained hidden from public view. Two "Room documents" from October 2001 are a case in point. One is dated 10 October 2001 (and was discussed at a meeting of the EU's CIREFI Working Party on 8 October) and the other is dated 19 October 2001 (after the meeting of the EU's high-level Strategic Committee on Immigration, Frontiers and Asylum on 12 October and before a meeting with a US delegation on 26 October 2001).
The documents present a list of proposals from the USA for joint cooperation with the EU. The only difference between the two documents is that the later document (Room document, no 21 rev 1) leaves out point 11 in the early documents which said: "11. Increased financial support to UNHCR for the introduction of biometric identification means for the initial registration of refugees".
The documents form part of the background to secret discussions between EU and US officials on 26 October 2001 and another document which was refused but obtained by other means: see Statewatch News online: Secret US-EU meeting on asylum: the construction of a common EU-US area of migration, asylum and borders?
Room documents (and Meetings documents, SN documents etc) are not included on the Council's public register of documents - this is one of the issue taken up in the European Ombudsman's Special Report to the European Parliament on a Statewatch complaint against the Council.
1. Version one of USA demands: Room doc no 21 (Word, 34k) Room doc no 21 (pdf, 200k)
2. Version two of USA demands: Room doc no 21 rev 1 (Word, 34k) Room doc no 21 rev 1 (pdf, 200k)
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