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Counter-terrorism: alerts for temporary detention to be added to the SIS?
19.12.16
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EU institutions, Member States and "various platforms and forums at the European level" are considering adding a new type of alert to the Schengen Information System (SIS) that woud allow "preliminary and temporary holding or detention in the context of the fight against terrorism," in order to "provide a solution going beyond information collection in situations in situations where there is a threat of terrorism."

See: NOTE from: Presidency to: Working Party for Schengen Matters (SIS/SIRENE): Fight against terrorism: Article 36 alerts (14651/16, LIMITE, 22 November 2016, pdf)

Currently, one of the SIS alerts used most frequently in relation to counter-terrorism is the 'Article 36 alert', which tells law enforcement officers checking a person (or object) against the system that they should be subject to "discreet or specific checks".

The Dutch Presidency of the Council recently sent a questionnaire to the Member States to find out their views on the possibility of adding a new type of alert to the system, and the responses show that:

"Fourteen Member States consider a new kind of action involving temporary holding of a person to be an appropriate, adequate and applicable solution in a specific situation, especially in cases where there is an imminent threat of terrorism. Of course, many Member States point out that such an alert category could raise the question of compliance with fundamental rights. Precise rules for using such an action should therefore be adopted, especially to define the time limits for detention and specify the exact conditions under which the action could be requested."

But such an idea throws up some tricky legal questions:

"As regards the matter of national legal grounds in the area of combating terrorism, there are various tools for combating terrorism which have already been established in Member States. Several Member States have recently adopted new legislation enabling them to take reinforced measures to combat terrorism, which include temporary holding of a person for time periods which differ from country to country. More Member States are in the process of changing their national laws or are currently considering changes to their national laws related to terrorism, which could lead to them also adopting national requirements to act with regard to the new alert category in the Schengen Information System currently under discussion.

On the other hand, there are also Member States which stressed legal concerns, especially since such a proposal involving the restriction of fundamental rights would be very difficult to adopt in their national legislative environments and would also have constitutional implications. They therefore would not consider changing their national legal framework in this context."

The Presidency summarises:

"The collection of Member States' views highlighted the following concerns, which should be taken into consideration if a new alert category is adopted in SIS II legal instruments:

– fundamental rights protection could be an obstacle to adopting such a measure;
– the possibility of implementing such a measure under national law in executing Member States should be taken into account, to guarantee the wide efficiency of such a tool;
– specific and strict circumstances should be identified in which such an action to be taken could be executed, and the exact procedure following a hit in the Schengen Information System should be defined;
– time limits should be laid down for such a temporary detention, within which the objective of the temporary detention should be achieved."

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