28 March 2012
29.11.11 - With the European Criminal Records Information System (ECRIS) due to come into operation as of April 2012, the European Commission are now developing the latest in a long list of EU-wide information systems and databases - a European Criminal Records System for Third Country Nationals (ECRIS-TCN). This will be a common European index containing the criminal record information of third-country nationals resident in the EU. As the name suggests, the ECRIS-TCN is essentially an addition to the ECRIS (although information is only exchanged via the ECRIS on EU nationals). It also differs in that it will rely upon a centralised index, rather than the connection of decentralised national registers.
The 'principle of availability' strikes again
The need to improve the exchange of information contained in criminal records for both EU and third-country nationals was highlighted in the 2004 Hague Programme (the precursor to the current Stockholm Programme) - the same document that introduced the 'principle of availability'.
In 2006 the Commission produced a working document on the feasibility of an index of third-country nationals convicted in the European Union,  which suggested that an index based on a 'hit/no-hit' system be developed. For this to function, the conviction information of any third-country national or person of unknown nationality would need to be submitted by the authorities of the convicting Member State to the central register. Should that individual then find themselves facing legal proceedings in another Member State, the authorities would be able to consult the index to see whether the individual had been convicted elsewhere in the European Union. Current information indicates that the index itself would not hold personal data - rather, it would direct the searching authority to the authorities of the Member State in which the prior conviction(s) was handed down.
It has taken a number of years for the proposed system to come any closer to reality. A September 2010 from James Brokenshire MP, then the UK's Parliamentary Under Secretary of State for Crime Prevention (and now Minister for Crime and Security), reported on a feasibility study undertaken for the Commission by the multinational security firm Unisys. The company recommended that:
"Member States should use a decentralised exchange system of criminal records information on third country nationals (ECRIS-TCN) to find out whether third country nationals have convictions elsewhere in the EU. There is no requirement for countries to store biometric information such as fingerprints on their criminal record; instead countries would be required to store alpha-numeric information on third country nationals." 
While this measure prevents any potential misuse of third-country nationals' biometric information, it does increase the chances of misidentification. This issue was noted in the Commission's 2006 Working Document:
"The absence of a sufficient degree of certainty [when identifying individuals] would lead to unacceptable situations. First, certain convictions might not be found and the system would therefore fail to meet its objective… Second, convictions might be attributed to a person other than the one against whom they had been handed down - this situation would be particularly detrimental to the person whose identity has been mistaken." 
The Commission's legislative roadmap, dated from July 2011, also relies upon the feasibility study to back up its statement that "the index should implement stronger identification solutions than ECRIS did so far".  However, two options still remain available for the forthcoming legislative proposal: "a compulsory hit/no-hit system (central database) based on alphanumeric data" or: "the establishment of a compulsory 'hit/no-hit' system (centralised database) based on alphanumeric data or/and fingerprints (for those countries that have such possibility)".
The Unisys feasibility study
The feasibility study by Unisys (which is not publicly available) went further than simply analysing the feasibility of a system for exchanging information from the criminal records of third-country nationals.
It was also recommended that "Member States examine the possibility of creating an integrated fingerprint search system (CRIS-FIN)". Although this is "very much a test bed for now" (making it sound like more than simply a recommendation), the proposed CRIS-FIN system "would look at fingerprints within a wider identification context and cover all convictions and not just those on non-EU nationals". The UK government seems to feel that it may have an advantage over competitors for any future study on a fingerprint search system, as "most UK convictions already have an attached fingerprint record", and "the Association of Chief Police Officers Criminal Records Office is… already in receipt of EU funding to look at fingerprints within a criminal conviction context".
Were such a system to be developed, it may mean the EU imposing upon Member States the mandatory collection and storage of fingerprints on all criminal records. Considering that currently only the UK and Cyprus store fingerprints on criminal records, this would be a significant task.
As with the development of the European Criminal Records Information System, it seems that privacy and personal data safeguards may be sidelined in order to allow ease of use. Whether this is the case remains to be seen. An impact assessment study "will be prepared by an external contractor". The assessment will be carried out from December 2011 to July 2012. The Commission is due to issue a legislative proposal in the first quarter of 2013, after which the European Data Protection Supervisor will publish an opinion.
 Commission Working Document on the feasibility of an index of third-country nationals convicted in the European Union, 4th July 2006
 Criminal Justice: Third Country Nationals Convicted in the European Union (11453/06), Letter from James Brokenshire MP, Parliamentary Under Secretary of State for Crime Prevention, Home Office, to the Chairman, 27th September 2010
 Commission Working Document on the feasibility of an index of third-country nationals convicted in the European Union, p.5-6
 ROADMAP - Legislative proposal on an ECRIS-TCN system regarding convicted third country nationals, July 2011, p.1
 Criminal Justice: Third Country Nationals Convicted in the European Union (11453/06)
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