EU: EU criminal records to be exchanged: A simple question or is there more to it?

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- Opinion of the European Data Protection Supervisor - considered and received little "support"

The Council of the European Union (the 25 governments) is currently considering a proposal for a Council Framework Decision on the exchange of criminal record information (EU doc no: 11895/05). The European Parliament has not yet delivered its "opinion" - under "consultation" (not co-decision).

The basic idea is that convictions in another EU state other than where the person is resident should be passed over to the home state.

This is primarily geared to the exchange of this data between EU states - though in Article 7 this can include convictions handed down by "third countries" (ie: non-EU states) and added to a criminal record in the EU and responding to requests from "third countries" under the 1959 European Convention on Mutual Assistance in Criminal Matters [see Footnote 1]

As the summer recess started in Brussels there were a number of questions unresolved in the Council Working Party on cooperation on criminal matters. First, whether "convictions" should include the decisions of administrative authorities (as distinct from judicial ones) (Article 2a). Second, in most cases EU governments like to include the phrase "according to national law" or "as set out in national law" - even though research is rarely available (as in this case) as to what national practices are. However, when it comes to the idea that the state where the conviction was handed down should also communicate the length of time - under its national law - the conviction remains in the criminal record eight member states were opposed to this limitation - only Finland and the Commission want to keep this provision. Similarly, "many delegations" were opposed to "deletions" or "alterations" (for which read corrections) having to be made to the record first transmitted by the state in which the person was convicted.

Although the rationale for this measure is the exchange of information on convictions in other EU states for the "purpose of criminal proceedings" (ie: so that a full EU-wide record of a person's criminal convictions can be available for investigations and courts) under Article 7.2 (and Article 9.2) information can be requested for:

"any other purpose than that of criminal proceedings... in accordance with national law"

The Annex sets out a draft standard form for requesting information on convictions. The "purpose" of the request can be for "criminal proceedings" or a "request from a judicial authority outside the context of criminal proceedings" (undefined). But also includes:

"request from a competent administrative authority"

As each member state is allowed to defines its own "competent administrative authorities" these could include Special Branch or MI5 in the UK.

Opinion of the European Data Protection Supervisor - considered and received little "support"

The European Data Protection Supervisor (EDPS) produced a detailed opinion on 29 May containing recommendations for major changes in the draft measure (EDPS opinion).

Among his recommendations were:

1. that the measure should not enter into force before the proposal for the over-arching Council Framework Decision on the protection of personal data in police and judicial matters is also in force. The EDPS notes that in the latter case there are still substantial issues unresolved (including the transfer of data to third countries).

2. that the transfer of data in instances not concerning criminal proceedings should only be allowed "under exceptional circumstances":

"The system is.. rather complicated, since any request for purposes other than criminal proceedings shall be, at the end of the day, subject to three different parameters of lawfulness: the law of the requesting Member State, the law of the Member State of convicted person's nationality

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