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EU: Commission offers little assistance to those seeking answers over police infiltration of protest movements
22 August 2013
The European Commission has provided answers to a number of questions submitted by Green MEP Keith Taylor regarding the European Cooperation Group on Undercover Activities (ECG), a secretive international police working group that, in the words of the Commission, "looks at the exchange of expertise and knowledge on undercover techniques/activities between investigators involved in these activities."
The group's existence became common knowledge in 2010 when information was released by the German government in response to a series of parliamentary questions. The group's membership includes all EU Member States (except Cyprus, Greece, Ireland, Luxembourg and Malta) and Albania, Croatia, Macedonia, Norway, Russia, Switzerland, Serbia, Turkey and Ukraine.
Further information that has subsequently come to light includes a template Memorandum of Understanding drawn up by the group to address the structure of agreements on the cross-border deployment of undercover officers and what issues will be covered. 
The answers from Commissioner Cecilia Malmström to Taylor's questions, published on 13 August, show that the ECG's work is the prerogative of national authorities.  Asked whether the group receives funding and support from the Commission or Europol, the Commission said:
"The Group is not an EU group. Instead it was established between authorities of European countries (EU members and non EU countries). The European Commission and Europol do not provide support or funding to this Group."
Other efforts at international police collaboration revealed in recent years that have received support from EU institutions and agencies include the Cross-Border Surveillance Working Group, to which Europol contributes its "technical perspective",  and the International Specialist Law Enforcement project on covert surveillance techniques, which from 2009 until 2012 received over €115,000 from the Commission. A 2012 grant application for nearly €359,244 was withdrawn "due to organisational changes". 
Keith Taylor asked how it is ensured that the ECG acts in compliance with fundamental rights and how "individuals affected by the Group's activities [can] voice their grievances and seek redress." The Commission could offer little assistance on this point:
"To the extent that the countries which belong to the ECG are parties to the European Convention on Human Rights and members of the EU, they are subject to that Convention and to the Treaty on the Functioning of the European Union (TFEU)."
"The Commission has no knowledge of the processes relating to the accountability of the ECG. To the Commission's knowledge the Groups' activities will be conducted by national authorities which are subject to the national, European and international judicial systems."
In the UK, court proceedings against the Metropolitan Police are ongoing in relation to the deployment of undercover agents who maintained intimate sexual relationships and even fathered children with their "targets". An application by the police to have the complaints heard in a secretive Investigatory Powers Tribunal was accepted by the High Court,  although permission to appeal against this decision has recently been granted.
In the UK - where the press and public reaction to the revelations about undercover policing appear to have been strongest - the response from the authorities has been to try and ensure secrecy. Operation Herne, a major review of the activities of the Metropolitan Police's former undercover unit, the Special Demonstration Squad, is being undertaken by the Metropolitan Police themselves and is estimated to take another three years to complete. It began in October 2011. So far one report has been released, on the use by undercover police of the identities of dead children.  Numerous calls for an independent public inquiry have been ignored.
Undercover agents and the European Investigation Order
Taylor's final question was: "In this context, how does the Commission view the inclusion of the use of undercover agents in the European Investigation Order?"
The European Investigation Order (EIO) is intended to consolidate the legal framework covering the gathering and transfer of evidence in criminal cases between EU Member States. The proposed inclusion of covert investigations, interception of telecommunications and controlled deliveries (law enforcement 'sting' operations) is highly contentious.
If covert investigations are included within the EIO, many of the grounds given to a Member State under the Convention on Mutual Legal Assistance in Criminal Matters to refuse to allow other Member States' undercover agents to operate in their territory would be removed.
Previous Statewatch analyses have questionned the proposal, with one pointing out that:
"[T]he combined abolition of dual criminality and territoriality requirements under the Directive represents both a fundamental threat to the rule of law in criminal law matters - which is required by Article 7 ECHR (legal certainty of criminal offences) and Article 8 ECHR in this field (invasions of privacy must be in accordance with the law) - and an attack on the national sovereignty of Member States, which would in effect lose their power to define what acts are in fact criminal if committed on the territory of their State."
(emphasis in original) 
Numerous parliamentary amendments to the EIO have been suggested, to Article 3 in particular, with Dutch socialist MEP Cornelis de Jong seeking to remove covert investigations (defined as "investigations into crime by officers acting under covert or false identity") from the scope of the proposal. Proposed amendments by other MEPs seek to remove telecommunications intercepts and controlled deliveries from the scope:
"The current scope of the EIO is very wide, covering all types of investigative measures, however intrusive or sensitive. In our view interception, controlled deliveries and covert investigation are not suitable for the scope and we propose to remove them."
The Commission remains strongly in favour of the inclusion in the EIO of covert investigations, telecommunications interception and controlled deliveries, telling Taylor that it "supported a broad scope for the proposed directive" and making reference to a 2010 document in which it said that "the scope of the initiative should be as broad as possible" and that "the exclusion of any measure from the scope of this legislation entails the risk of reproducing [legal] fragmentation, which the initiative seeks to end." 
A first reading of the measure in the European Parliament is planned to take place on 12 September. 145 amendments have been tabled. Meanwhile, the search for accountability over undercover police operations continues.
Uncertain future for EU-funded police project aimed at enhancing covert surveillance techniques, Statewatch News Online, 12 July 2013
State guidelines for the exchange of undercover police officers revealed, Statewatch News Online, May 2013
UK: Home Affairs Committee: Undercover Policing: Interim Report, March 2013
UN Special Rapporteur calls for a "judge-led public inquiry" into undercover police operations and condemns a number of other police practices, Statewatch News Online, 23 January 2013
Getting answers from the police on undercover deployments "will be a long process", Statewatch News Online, 12 January 2013
 State guidelines for the exchange of undercover police officers revealed, Statewatch News Online, May 2013
 Keith Taylor MEP's questions to the Commission and the Commission's answers can be found on the European Parliament website.
 Another secretive European police working group revealed as governments remain tight-lipped on other police networks and the activities of Mark Kennedy, Statewatch News Online, 23 August 2012
 Uncertain future for EU-funded police project aimed at enhancing covert surveillance techniques, Statewatch News Online, 12 July 2013
 Outrage as High Court permits secrecy over undercover policing, Police Spies Out of Lives, 17 January 2013
 Chief Constable Mick Creedon, Operation Herne Report 1 - Use of covert identities, July 2013
 Steve Peers, The Proposed European Investigation Order, Statewatch Analysis, November 2010 and Steve Peers, The proposed European Investigation Order: Assault on human rights and national sovereignty, Statewatch Analysis, May 2010
 European Parliament Committee on Civil Liberties, Justice and Home Affairs, Amendments 55 - 199, Draft report on the adoption of a Directive of the European Parliament and of the Council regarding the European Investigation Order in Criminal Matters, 2010/0817(COD), 10 February 2012, p.19-20
 European Commission, Initiative taken by the Kingdom of Belgium, the Republic of Bulgaria, the Republic of Estonia, the Kingdom of Spain, the Republic of Austria, the Republic of Slovenia and the Kingdom of Sweden under Title V of the Treaty on the Functioning of the European Union, C(2010) 5789 final, 24 August 2010, p.12