28 March 2012
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Some remarks on Schengen III
The Schengen III treaty was signed in Prüm, a small town in the west German land of Rhenania Palatinate. It will have to be ratified by the national parliaments of the seven participating states - Germany, Spain, France, Luxembourg, Netherlands, Austria and Belgium.
It is not part of the Schengen treaty nor is it intended to be a part of the Schengen acquis. However it follows a model of cooperation which is very similar to the "Schengen Cooperation" before its integration into the first and third pillar of the EU under the Amsterdam treaty of 1999: A group of powerful EU states agree stronger cooperation outside the formal structures of the EU, with the declared intention of transferring the rules they have elaborated on a bilateral level to the level of the EU. The consequence of this will be that the European Parliament will have absolutely no say during the phase of bilateral cooperation, and it will only have limited influence when the seven member states in this group try to implement their rules inside the Union.
This integration is planned to take place, at the latest, three years after the entry into force of the treaty - a period which will start after national parliaments ratify the Treaty. During this period, however, the contracting parties will elaborate the implementing agreements, that will contain the concrete technical details - the institutionalisation of contact points, the way national databases will be linked, the ways of transfer of additional information and intelligence etc.
The treaty should be seen against the background of EU plans to introduce the so-called "principle of availability" allowing for the exchange of information between law enforcement agencies in the member states of the EU - plans which started after the Madrid bomb attacks in 11 March 2004.
This principle turns the traditional forms of exchange upside down. Up to now treaties defined which data should be communicated and under what conditions. This is even the case in the Europol Convention and its far-ranging regulations. The "principle of availability" says that all data can be transferred and the Prüm treaty accepts this principle. It establishes the right of access to the databases/registers of the participating states and gives the requesting state the possibility to ask for more information/intelligence.
All participating states have to set up DNA profile databanks. Like fingerprint systems, DNA databanks normally register a profile not under the name of a person but under a number. The number is the link to the name and further personal data of a specific person, stored or in a separate part of the DNA databank or in a general criminal records data bank. Open traces, ie. DNA profiles resulting from biological traces found at a crime scene, which are still not related to a concrete person are marked as such. The regulations in Article 2 describe the functioning of DNA databases but set out no data protection provisions.
The only limit is that the data can only be exchanged for reasons of criminal prosecution and not for further pre-emptive policing and profiles can only be taken from the non-codifying parts of the DNA and not from the genes themselves.
The respective national databanks will be accessible by all the other participating states. The indexes and open traces are to be accessible, the latter for regular complete checks. In case of a "hit", further communications/exchanges will be through national contact points - which will have a similar role to the SIRENE offices under the Schengen Information System. Between these contact points, additional "available" information related to a specific person can be exchanged according to the national law of the requested state and the existing regulations and treaties on mutual assistance in criminal matters.
Further on is set out that a DNA test of a person and its analysis can be ordered by a judge or the respective authority of a participating state.
The treaty allows, where a specific person is identified, access to the finger-print databases of the participating states and the automatic comparison of fingerprints, not only for reasons of criminal prosecution but also for "prevention". Moreover, the law of the requesting state is decisive, not - as usual under mutual assistance - the law of the requested. The police forces in the requesting state thus do not need to know the legal requirements in other states.
Here too in case of a "hit" additional information on the identified person can be acquired via the national contact points. The latter exchange depends on the law of the requested state.
Vehicle databases can be accessed for criminal prosecutions and for reasons of preventing dangers for public security and order, ie including supposed threats to public order . Online access will be carried out according to the law of the requesting state.
Political demonstrations and other mass events (Articles 13-15)
Cooperation in these areas dates back to the 1980s. In the 1990s first in the Schengen group then within the framework of the Council of the EU, a Joint Action was adopted. Under this, national contact points were set up, liaison officers were sent to the state hosting the event and information/intelligence exchanged.
Information, which on the occasion of the G8-Summit in Genova 2001, included "black lists" of people - a practice which will now be legalised. For reasons of prosecution and prevention of offences and for the prevention of dangers to public security and order, personal and non personal data can be passed on - following a request or without request, ie. at the own initiative of a state. This will lead to preventive detention, detention or refusal of entry at the border.
Information exchange to prevent terrorist attacks (art. 16)
This form of exchange already exists. It was started in the late 1970s under TREVI. The contact points were the political police forces, who today are called "security services". The communication was through a closed fax-network. Later this network became known as the "BDL network", BDL meaning bureau de liaison. It is not clear, what would change under the new treaty.
Data and intelligence: names and further personal identity plus the reason will; be sent out across the network, with or without a prior request. This is already the case under Article 46 of the Schengen Implementation Convention, which allows for the transfer of information, without request, on all grounds and not just to prevent offences which fall under Articles 1-3 of the 2002 EU Framework Decision on combating terrorism - which thus cover not only terrorist attacks but a lot of actions such as radical protest or civil disobedience.
Paragraph 4 in this article is important as it allows the transmitting authority to put conditions on the use of the data passed over. These conditions usually refer to the use of information or to its use as intelligence in court or relating to a criminal prosecution. Those restrictions are particularly common, when the intelligence stems from informers, covert agents, from bugging or other "special investigation techniques". Special political police branches or secret intelligence services are guided by the principle of protecting their sources, including information on their para-legal or illegal activity.
"Sky marshals" (Article 17-18)
"Security escorts" - a euphemism for "sky marshals" - could lead to armed police on planes which is a very dangerous idea for all onboard. How the authority of the plane's captain can be maintained is not spelt out.
Fighting illegal migration (Chapter 4)
- Documents advisors
The assignment of immigration liaison officers (ILOs) to countries of origin or transit is already agreed within the EU. They have the task of informing their governments on the situation in the respective country, to give advise to police and border guards of that country and to assist transport companies on how to check travel documents. However, up to now it seems, this cooperation and the exchange of information between ILOs from different member states in one hosting state does not work as well as these member states wants.
Articles 20 and 21 do not say anything which might be new in practice. The only "advance" might be the creation of national contact points to coordinate the work of ILOs.
- Joint deportation action
The practice described
here has already been used. On 13 September 2004 the German Bundesgrenzschutz
organized, together with Belgian and Swiss authorities, the "repatriation"
17 African asylum-seekers on a chartered plane from Hamburg.
They were escorted by 70 officers of the border guard.
Neither is deportations from a closer airport on the territory of another country new.
The creation of contact points however could stimulate to use these practices of the states' deportation industry more frequently.
The Schengen Implementation Convention limits the cross border policing to "hot pursuit", surveillance and controlled delivery.
Bilateral agreements under of this convention may be broader. The widest scope for cross border policing is already agreed in the Swiss-German Police treaty of April 1999. This allows not only joint patrols but gives officers of both sides executive powers in special situations. Thus German police officers can arrest a person on Swiss territory. Also contingents of German police have been sent regularly to police demonstrations in Switzerland - eg: at the World Economic Forum in Davos and in Geneva during the Evian Summit of G8 in 2003, when 750 German anti-riot police were in the streets of the Calvin city. The regulations in article 24 - 26 are very similar to the Swiss-German treaty.
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